BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CHARLES VAN,
 
         
 
              Claimant,                             File No. 832067
 
                                                             841123
 
         VS.
 
                                                 A R B I T R A T I O N
 
         CLARINDA CORRECTIONAL
 
         TREATMENT COMPLEX,                         D E C I S I O N
 
         
 
              Employer,
 
                                                       F I L E D
 
         and
 
                                                      FEB 28 1990
 
         STATE OF IOWA,
 
                                                  INDUSTRIAL SERVICES
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Charles Van, 
 
         claimant, against Clarinda Correctional Treatment Complex, 
 
         employer, and State of Iowa, insurance carrier, defendants, for 
 
         benefits as the result of an injury that occurred on August 27, 
 
         1986 (file 832067) and another injury that occurred on December 
 
         9, 1986 (file 841123).  A hearing was held in Council Bluffs, 
 
         Iowa, on June 19, 1989, and the case was fully submitted at the 
 
         close of the hearing.  Claimant was represented by Sheldon 
 
         Gallner. Defendants were represented by Shirley Ann Steffe.  The 
 
         record consists of the testimony of Charles H. Van, claimant; 
 
         Arlinda K. Van, claimant's wife; and joint exhibits 1 through 28.  
 
         The deputy ordered a transcript of the hearing.  Defendants' 
 
         attorney submitted an excellent brief.  Claimant's attorney did 
 
         not submit a brief.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters at the time 
 
         of the hearing:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of both injuries.
 
         
 
              That claimant sustained an injury on August 27, 1986 and 
 
         another injury on December 9, 1986, both of which arose out of 
 
         and in the course of employment with employer.
 
         
 
              That both injuries were the cause of temporary disability.
 
         
 
              That claimant is entitled to and was paid temporary 
 
         disability benefits from August 27, 1986 through December 8, 1986 
 
         for the injury of August 27, 1986; that claimant is entitled to 
 
         and was paid temporary disability benefits from December 9, 1986 
 
         through November 20, 1987 for the injury of December 9, 1986; 
 
         that claimant's entitlement to temporary disability benefits has 
 
         been fully paid and is not a disputed matter in this case at this 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         time.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That the injury of August 27, 1986, was the cause of 
 
         permanent disability.
 
         
 
              That the type of permanent disability, for the injury of 
 
         August 27, 1986, is industrial disability to the body as a whole.
 
         
 
              That the injury of December 9, 1986, was simply an 
 
         exacerbation of the injury that occurred on August 27, 1986 and 
 
         that the permanent disability in this case was caused by the 
 
         injury of August 27, 1986.
 
         
 
              That the rate of compensation for both injuries is $229.44 
 
         per week in the event of an award.
 
         
 
              That all requested medical benefits for both injuries has 
 
         been or will be paid by defendants.
 
         
 
              That claimant has received $11,784.15 of long-term income 
 
         disability benefits prior to hearing, but whether defendant is 
 
         entitled to a credit for these benefits is a disputed matter.
 
         
 
              That defendants have paid claimant 80 6/7 weeks of workers' 
 
         compensation permanent partial disability benefits, at the rate 
 
         of $229.44 per week, prior to the hearing on June 19, 1989 and 
 
         that defendants are in the process of paying claimant 100 weeks 
 
         of permanent partial disability benefits based upon a 20 percent 
 
         permanent functional impairment rating issued by claimant's 
 
         treating physician.
 
         
 
              That there are no bifurcated claims.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether claimant is entitled to additional permanent partial 
 
         disability benefits for the injury of August 27, 1986, and if so, 
 
         the extent of benefits to which he is entitled, to include 
 
         whether claimant is an odd-lot employee.
 
         
 
              Whether defendants are entitled to a credit for $11,784.15 
 
         in long-term income disability benefits paid to claimant prior to 
 
         hearing.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Claimant, born March 17, 1944, was 42 years old at the time 
 
         of the injury and 45 years old at the time of the hearing. 
 
         Claimant completed the eighth grade and later obtained a GED in 
 
         the army (transcript page 52).  Claimant testified that he was 17 
 
         years old when he was in the eighth grade.  He quit school, he 
 
         joined the army.  He received an honorable discharge from the 
 
         army with the rank of staff sergeant.  Prior employments include 
 
         highway labor for the state of Missouri out of a union hall, with 
 
         lifting requirements from 40 to 250 pounds.  He also worked in 
 
         the meat packing industry for a short time (tr. pp. 17-20).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant started to work for employer on September 2, 1980 
 
         as a correctional officer.  This job requires a lot of walking, 
 
         including up and down four flights of stairs, checking fire 
 
         security and making yard checks.  Claimant worked in a unit which 
 
         confined the mentally ill, the criminally insane and child 
 
         molesters.  He was also in charge of solitary confinement.  This 
 
         was a violent area and daily he was required to stop fights 
 
         between the prisoners or inmates.  He also checked perimeter by 
 
         driving a car.  He also drove a car to transport inmates from one 
 
         institution to another.  Frequently, it was necessary to carry an 
 
         inmate in order to restrain him.  Claimant testified that he 
 
         weighed between 280 and 288 pounds when he began this job.  At 
 
         the time of the hearing he weighed 320 pounds, but was going to 
 
         Weight Watchers and was losing weight then (tr. pp. 20-23).
 
         
 
              On August 27, 1986, ten inmates arrived from Fort Madison. 
 
         Prisoners are transported with a transportation box, or tool box, 
 
         which is about 24 inches long, 10 inches deep and 10 or 12 inches 
 
         wide.  This box contains handcuffs, belly chains, leg irons, 
 
         flash lights, and mace.  They call it a transportation kit.  
 
         Claimant squatted down, took a hold of the box and started to 
 
         pull it when he felt a pop in his lower back and his left leg 
 
         went numb (tr. p. 23).  Nothing like this had ever happened 
 
         before.  He reported the injury to his superior immediately and 
 
         was taken to the Clarinda Hospital in a semi-stooped over 
 
         position.  His leg was numb and he could not walk.  He was 
 
         treated by Adeline Comeau, M.D., who prescribed physical therapy 
 
         three or four times a day every day. Claimant was also treated by 
 
         Michael T. O'Neil, M.D., an orthopedic surgeon, who commuted from 
 
         Omaha to Clarinda (tr. pp. 24-26).
 
         
 
              Claimant attempted to return to work on December 8, 1986, 
 
         with pain in his back and left leg, which would go numb if he sat 
 
         or stood.  Sometimes he would fall down on this first day back to 
 
         work, claimant attempted to sit down on a stool and his back 
 
         popped and his leg went numb.  He experienced the same pain that 
 
         occurred on August 27, 1986.  He reported the injury, was sent to 
 
         Clarinda Hospital and Dr. Comeau had claimant transported to 
 
         Clarkson Hospital in Omaha for treatment again by Dr. O'Neil (tr. 
 
         pp. 27 & 28).
 
         
 
              Back surgery was performed on January 13, 1987.  This 
 
         relieved the constant pain, but his leg still goes numb and he 
 
         has problems walking, standing and sitting for long periods.  
 
         Claimant testified that he has received extensive physical 
 
         therapy of heat, massage and ultrasound (tr. p. 29).  Claimant 
 
         testified that he was terminated by employer and he was told they 
 
         were putting him on long-term disability.  As a condition of 
 
         receiving long-term disability, he was required to apply for 
 
         social security disability benefits and social security 
 
         disability benefits were awarded to him (tr. p. 30).  Claimant 
 
         was not offered a sedentary job by employer.  Claimant did not 
 
         know of any jobs for employer that he could perform in his 
 
         present condition (tr. p. 31). Claimant testified that he has 
 
         been unable to garden or hunt since the surgery because he is 
 
         unable to walk on rough ground (tr. p. 31).  Claimant testified 
 
         that since the surgery, he experiences pain in both legs, the 
 
         left leg goes numb, three toes on the left foot have been numb 
 
         since the surgery, he only sleeps four or five hours at night 
 
         before he is awakened with leg cramps that he has to get up and 
 
         walk out.  His pain is worse on cool, damp days (tr. p. 32 & 33).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant testified that the State of Iowa sent a vocational 
 
         rehabilitation counselor by the name of Al Marchisio to see him 
 
         on two or three occasions at his home.  Claimant said that Mr. 
 
         Marchisio never recommended that he return to work and never 
 
         indicated that there were any jobs that he could perform.  He 
 
         last saw Marchisio in December of 1987 (tr. pp. 33 & 34).
 
         
 
              Claimant testified that he lies down three or four times a 
 
         day.  He cannot perform the job of security guard because he 
 
         cannot stand on his feet over 15 to 20 minutes at the most before 
 
         he gets cramps or muscle spasms in his lower back and legs.  He 
 
         can only walk four or five blocks.  Claimant testified that he is 
 
         unable to drive, ride, or sit for prolonged periods of time.  The 
 
         trip from Clarinda to Council Bluffs is 40 minutes and he was 
 
         required to stop three times to relieve the muscle spasms.  His 
 
         wife normally does the driving.  Claimant testified that he did 
 
         not know of any job that he can do because you cannot find an 
 
         employer where you can work a little while, sit down awhile or 
 
         lie down awhile.  Claimant maintained he could not perform his 
 
         old job as a correctional officer because it requires a lot of 
 
         walking, standing and physical exertion at times to restrain 
 
         inmates that become upset (tr. pp. 36-38).  Claimant asserted 
 
         that Dr. O'Neil told him to go home and stay, to lie on a heat 
 
         pad and ice bag, and to stay off his feet as much as possible 
 
         (tr. pp. 35 & 38).
 
         
 
              Claimant admitted that he had not attempted to look for any 
 
         type of employment since his injury (tr. p. 39).  Claimant 
 
         acknowledged that he had learned the ability to know particular 
 
         safety rules and procedures, the ability to use good judgment and 
 
         to deal with people in emergency and other situations, to deal 
 
         with incoming and outgoing telephone calls, to deal with 
 
         visitors, who are members of the public, at the institution.  He 
 
         handled his application for long-term disability benefits and 
 
         social security disability benefits by filling out the forms (tr. 
 
         pp. 40-43). Claimant testified that he was not yet released by 
 
         Dr. O'Neil and that he was not aware that Dr. O'Neil said that he 
 
         could perform light work or sedentary work.
 
         
 
              Claimant testified that Marchisio did not recommend a job to 
 
         him, nor did he recommend retraining after reviewing the tests he 
 
         took at Creston Community College (tr. pp. 42 & 45).  Claimant 
 
         was not provided a copy of the test results and he never saw 
 
         Marchisio again.  Marchisio did not advise claimant that he was 
 
         able to secure a light duty position for claimant (tr. p. 46).  
 
         Claimant testified that he was unable to work, but he would do so 
 
         if he could (tr. p. 47).  The State of Iowa did not suggest he 
 
         apply for a job in a lesser capacity (tr. p. 48).  Claimant 
 
         acknowledged that he took a number of courses while employed by 
 
         employer such as CPR, personal safety, cultural awareness, stress 
 
         and health management, resident management, and con games.  He 
 
         passed tests for all of these in-service training courses (tr. 
 
         pp. 50 & 51).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Arlinda Van, claimant's wife of 11 years, testified that 
 
         prior to the injury, claimant was a little over weight, but 
 
         basically healthy.  His leg wasn't numb.  He takes medication 
 
         sometimes and his sleep patterns are disturbed.  He no longer 
 
         takes care of the lawn or garden and he is unable to hunt and 
 
         fish.  He rests often and his back and leg bother him.  She drove 
 
         to the hearing.  They stopped twice so he could stand up a little 
 
         bit and walk around the car.  He gets tired easier.  She 
 
         acknowledged that he had occasional back pain prior to this 
 
         injury.
 
         
 
              The medical evidence consists of the office notes, reports 
 
         and deposition testimony of Dr. O'Neil.  At his deposition on May 
 
         24, 1988, Dr. O'Neil testified that he was a board certified 
 
         orthopedic surgeon who has been in practice for 18 years.  He is 
 
         licensed to practice in Iowa and Nebraska.  His curriculum vitae 
 
         is a deposition exhibit and shows that he is an assistant 
 
         professor of orthopedic surgery at the University of Nebraska 
 
         College of Medicine (exhibit 22, deposition ex. 1).
 
         
 
              Dr. O'Neil testified that he first saw claimant on September 
 
         5, 1986 at the Clarinda Hospital.  Claimant described a back 
 
         injury from picking up an 80 or 90 pound tool box at which time 
 
         he experienced a popping sensation in his back and radicular pain 
 
         (ex. 28, p. 6).  The doctor noted that claimant was 6 foot 4 
 
         inches tall and weighed 333 pounds.  Because of his size, he is 
 
         not a good candidate for surgery, physical therapy is less 
 
         effective and his prognosis was quite guarded.  Range of motion 
 
         in his lumbosacral spine was limited to 50 percent in all 
 
         directions. X-rays of the lumbosacral spine showed an L-5 S-1 
 
         sacralization with a large bat-wing process at L5 on the left 
 
         side.  The L-5 S1 interspace was narrowed.
 
         
 
              Dr. O'Neil diagnosed an acute lumbar disc herniation, or at 
 
         least a threatened lumbar disc herniation at L4 L5 on the left 
 
         side with a preexisting transitional vertebra at L5 Sl. 
 
         Conservative treatment of bed rest and physical therapy were 
 
         prescribed (ex. 28, p. 9; ex. 27).  On October 3 the patient 
 
         reported that he had a deep vein thrombosis in the left thigh and 
 
         calf on October 1, 1986 and that he was being treated with 
 
         anticoagulant therapy (ex. 28, p. 10; ex. 26).  Dr. O'Neil said 
 
         this was consistent with an L5 nerve root involvement.  A CT scan 
 
         was considered, but claimant was too large to fit into the 
 
         apparatus (ex. 28, p. 11).
 
         
 
              Dr. O'Neil next saw claimant on December 9, 1986.  At that 
 
         time, claimant reported that he was sitting on a little stool 
 
         which tipped over and he slipped off the stool and reinjured his 
 
         back.  Claimant was sent to Clarkson Hospital in Omaha.  At this 
 
         time claimant received a preoperative consultation and 
 
         examination by Susanne E. Eilts, M.D.  (exs. 24a, 24b & 24c).  
 
         She diagnosed that claimant had:  (1) hypertension, poorly 
 
         controlled; (2) clinical history of angina pectoris, controlled; 
 
         (3) history of dependent edema; and (4) left L-5 radiculopathy.  
 
         Claimant received x-rays, a CT scan and a lumbosacral myelogram 
 
         (exs. 19, 20 & 21).  These objective tests confirm the defect at 
 
         L4-L5 as well as the congenital sacralization of the fifth lumbar 
 
         segment on the left side, degenerative arthritic changes and bony 
 
         osteophytic spur formations.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. O'Neil continued to diagnose lumbar disc herniation L4, 
 
         L5 (ex. 22a, 22b & 22c).  Dr. O'Neil concluded that claimant was 
 
         not a good candidate for surgery because of his size, but he 
 
         doubted if he would have much improvement without something other 
 
         than bed rest and physical therapy (exs. 23a & 23b).  Claimant 
 
         went home for the holidays and returned for surgery on January 9, 
 
         1987 (ex. 18).
 
         
 
              A lumbar laminotomy an L4 disc debridement, left was 
 
         performed on January 14, 1987 by Dr. O'Neil (exs. 15, 16a, 16b & 
 
         17).  Postsurgery, Dr. O'Neil saw claimant on February 6, 1987; 
 
         March 6, 1987; April 10, 1987; and June 5, 1987 (ex. 11-14).  On 
 
         July 14, 1987, the doctor said his prognosis was guarded because 
 
         of his weight (333 pounds) (ex. 10).  On July 17, 1987, the 
 
         doctor said that claimant cannot drive a car for more than 30 
 
         minutes without a change in position because of back, left 
 
         buttock and leg pain.  Dr. O'Neil reported that claimant also had 
 
         early degenerative changes of his left knee probably secondary to 
 
         stress and aggravated by his obesity (ex. 9).  On September 17, 
 
         1987, claimant's weight remained at approximately 330 pounds.  
 
         Dr. O'Neil concluded:
 
         
 
              I do not believe that this man can return to his former work 
 
              at the Clarinda Treatment Unit because of his back and 
 
              because of his left leg.  His left knee problem is basically 
 
              that of degenerative arthritis which is aggravated and 
 
              complicated by his severe obesity.  He will not tolerate 
 
              standing and walking for any length of time.  I believe that 
 
              he will have difficulty sitting and driving a car or truck 
 
              for eight hours a day because of his back and because of his 
 
              knee.  I would not let him lift more than 30 pounds 
 
              repeatedly because of his back condition and also because of 
 
              his knee.  He will not have any problems with push or pull 
 
              activities of the upper extremities.  I believe that the 
 
              prognosis for this man returning to his former work as a 
 
              guard or an attendant is poor.  I'm not sure when he will be 
 
              able to return to any type of work which requires standing, 
 
              stooping, bending or lifting.
 
         
 
         (exs. 8a & 8b)
 
         
 
              On September 28, 1987, Dr. O'Neil again stated that his 
 
         prognosis for returning to work as a guard is quite guarded (ex. 
 
         6).  On November 30, 1987, Dr. O'Neil stated:
 
         
 
              I believe that Mr. Van has reached maximum improvement and 
 
              believe he is entitled to a 20 percent permanent functional 
 
              impairment as a result of his back injury and subsequent 
 
              surgery.  I believe this is a work-related injury.  I 
 
              believe that this man should look for some type of work 
 
              which does not require standing and walking and climbing and 
 
              certainly none which requires stooping, lifting and bending.  
 
              Some type of light work or sedentary work would be more 
 
              appropriate for Mr. Van.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (ex. 5).
 
         
 
              Dr. O'Neil repeated this information on December 17, 1987, 
 
         in these words:
 
         
 
              At the time of my last examination, I felt that Mr. Van had 
 
              reached maximum improvement, and that he was entitled to a 
 
              20% permanent functional impairment as a result of his back 
 
              injury and subsequent surgery.  I felt that his back 
 
              condition was work related, and that he should look for some 
 
              type of work which did not require long periods of standing, 
 
              walking, stooping, bending and lifting.  I felt that light 
 
              work or sedentatary [sic] work would be appropriate.
 
         
 
         (ex. 4)
 
         
 
              Dr. O'Neil added that claimant did not have any objective 
 
         physical findings other than pain with straight leg raising.  
 
         There were no objective neurological deficits.  The doctor 
 
         reiterated that he did not feel that claimant should return to 
 
         work which requires any strenuous activity.  He stated again that 
 
         his obesity (350 pounds) certainly is a detrimental problem also 
 
         (ex. 4).  On January 28, 1988, Dr. O'Neil said that claimant's 
 
         disability entitled him to a disability hunting and fishing 
 
         license (ex. 3). On March 23, 1988, the doctor said that 
 
         claimant's persistence of back pain with flare-up in his buttock 
 
         was directly related to the initial back injury and he suggested 
 
         additional physical therapy on an outpatient basis.  On March 28, 
 
         1988, claimant's condition was unchanged, he continued to have 
 
         flare-ups, he continued to receive physical therapy and found it 
 
         helpful.  Claimant was investigating a weight loss program (ex. 
 
         1).
 
         
 
              In the deposition, Dr. O'Neil gave his professional opinion, 
 
         within a reasonable degree of medical certainty, that the cause 
 
         of the herniation at L4, L5 and the laminotomy was the injury on 
 
         August 27, 1986, while working at the Clarinda Complex and 
 
         picking up an 80 or 90 pound tool box.  Dr. O'Neil added that the 
 
         20 percent permanent functional impairment was the result of this 
 
         back injury and subsequent surgery.  The permanent restriction 
 
         that Dr. O'Neil would impose is that claimant should look for 
 
         some type of work which was mostly sedentary in nature.  He 
 
         cannot tolerate prolonged standing, walking or climbing.  He will 
 
         not tolerate stooping, bending, twisting and lifting.  He cannot 
 
         ride in a car for very long.  His only chance of getting back to 
 
         some productive activity is a sedentary one (ex. 28, pp. 19-22).
 
         
 
              Dr. O'Neil said that considering claimant's size and the 
 
         fact that he had a ruptured disc fragment in his back that the 
 
         surgery was successful because it diminished the pain in his back 
 
         and leg. Dr. O'Neil added, "I never thought he was going to be 
 
         completely pain-free following his operation."  (ex. 28, p. 25).  
 
         Dr. O'Neil could not determine whether the current pain was a 
 
         result of activity, claimant's obesity, scar tissue or possibly 
 
         another disc herniation (ex. 28, p. 25).  The doctor affirmed 
 
         that claimant could perform occasional bending or stooping.  The 
 
         doctor considered prolonged standing, sitting or walking as doing 
 
         it for three to four hours nonstop; or three to four hours 
 
         sitting in one position where he did not have the opportunity to 
 
         get up and move around a little bit and stretch his legs.  Dr. 
 
         O'Neil acknowledged that the congenital malformation of partial 
 
         sacralization at L5-S1 can cause increased stress at the next 
 
         disc space above this level and have a tendency to predispose a 
 
         person to injury more than if they did not have this condition 
 
         (ex. 28, pp. 30 & 31).  The doctor repeated that this injury was 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         the cause of claimant's disability as well as his restrictions 
 
         and limitations (ex. 28, p. 31).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The tests performed by Mr. Marchisio at the Clarinda 
 
         Community College and the test results were not placed in 
 
         evidence.  Claimant's attorney contended that the test results 
 
         were not served on claimant or claimant's counsel.  Claimant's 
 
         attorney contended that no reports from Mr. Marchisio were served 
 
         on claimant or claimant's counsel.  Mr. Marchisio did not testify 
 
         at the hearing.  No explanation was given why Mr. Marchisio 
 
         stopped seeing claimant.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of August 27, 1986 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id., at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              If 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).
 
         
 
              Claimant was age 42 at the time of the injury on August 27, 
 
         1986.  The loss is made worse in this case because it occurred 
 
         when claimant was near the peak of his earnings capacity. 
 
         Claimant's physical loss, functional loss and industrial loss is 
 
         more detrimental to him than it would be to an older or younger 
 
         employee.  Becke v. Turner-Busch, Inc., Thirty-fourth Biennial 
 
         Report of the Industrial Commissioner 34 (Appeal Decision 1979); 
 
         Walton v. B & H Tank Corp., II Iowa Industrial Commissioner 
 
         Report 426 (1981); McCoy v. Donaldson Company, Inc., file numbers 
 
         782670 & 805200 (Appeal Decision April 28, 1989).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant has an eighth grade formal education and obtained a 
 
         GED while in the army.  He reads, writes and completed a number 
 
         of in-service training courses for employer and passed tests for 
 
         these courses.  As defense counsel pointed out claimant is 
 
         articulate, has communication skills and experience at working 
 
         with people.  Dr. O'Neil said that he could perform light work, 
 
         sedentary work and that he could use his upper extremities in 
 
         push and pull activities.  Therefore, it is determined that 
 
         claimant is not permanently and totally disabled as contended.
 
         
 
              Claimant testified that he has not made any search of any 
 
         kind for any type of employment since his injury (tr. pp. 38 & 
 
         39).  Since claimant has made no attempt to find work, then he 
 
         cannot be determined to be an odd-lot employee.  Emshoff v. 
 
         Petroleum Transportation Services, file no. 753723 (Appeal 
 
         Decision March 31, 1987); Collins v. Friendship Village, Inc., 
 
         file no. 679258 (Appeal Decision October 31, 1988).
 
         
 
              An employee making a claim for industrial disability will 
 
         benefit by showing of some attempt to find work.  Hild v. Natkin 
 
         & Co., I Iowa Industrial Commissioner Report 144 (Appeal Decision 
 
         1981); Beintema v. Sioux City Engineering Co., II Iowa Industrial 
 
         Commissioner Report 24 (1981); Cory v. Northwestern States 
 
         Portland Cement Company, Thirty-third Biennial Report of the 
 
         Industrial Commissioner 104 (1976).
 
         
 
              Furthermore, since claimant has not sincerely sought any 
 
         employment within the limits permitted by Dr. O'Neil, his 
 
         potential for the labor market has not been tested and makes it 
 
         more difficult to ascertain how much industrial disability he has 
 
         actually suffered.  Schofield v. Iowa Beef Processors, Inc., II 
 
         Iowa Industrial Commissioner Report 334, 336 (1981).
 
         
 
              It is clear that claimant is foreclosed from his former work 
 
         as a correctional officer and guard over violent types of 
 
         patients and inmates.  Dr. O'Neil further stated that he was 
 
         proscribed from performing strenuous work.  Michael v. Harrison 
 
         County, Thirty-fourth Biennial Report of the Industrial 
 
         Commissioner 218, 220 (Appeal Decision January 30, 1979); 
 
         Rohrberg v. Griffin Pipe Products Co., I Iowa Industrial 
 
         Commissioner Report 282 (1984). Claimant is therefore, also 
 
         foreclosed from his previous work on highway construction and 
 
         probably in the meat packing industry.
 
         
 
              Claimant testified that employer told him to apply for 
 
         long-term disability benefits.  In so doing he was required to 
 
         apply for social security permanent disability benefits and these 
 
         benefits were awarded to him.  Claimant knew of no work for 
 
         employer that he could do.  Employer did not offer him any light 
 
         duty or sedentary work.  Employer did not offer him any light 
 
         duty or sedentary work at any other facility that it operates 
 
         within the state of Iowa.  Employer had claimant tested and 
 
         evaluated by a vocational rehabilitation consultant, but the test 
 
         results, reports and recommendations of the vocational 
 
         rehabilitation consultant are not in evidence.  The 
 
         rehabilitation consultant did not testify at the hearing.  
 
         Claimant testified that he was 17 years old when he quit school 
 
         in the eighth grade.  It would appear that retraining is not a 
 
         feasible course of action for claimant because:  (1) the absence 
 
         of evidence from defendants' rehabilitation evaluation is some 
 
         inference that retraining was not feasible and (2) defendants 
 
         directed him to apply for long-term disability benefits and 
 
         terminated his employment with employer.  Claimant testified that 
 
         after his tests and evaluation that the rehabilitation consultant 
 
         did not contact him again.
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Contrary to the testimony of claimant and his wife, claimant 
 
         was not healthy prior to the injury.  He suffered from obesity, 
 
         hypertension, angina pectoris, dependant edema, had a slightly 
 
         degenerative spine, and a degenerative left knee.  This litany 
 
         certainly provides a number of disincentives for claimant to be 
 
         motivated to look for work.  Added to that is the fact that 
 
         claimant was receiving long-term disability benefits, social 
 
         security disability benefits and permanent partial disability 
 
         benefits at the time of the hearing.  Defendants' argument 
 
         concerning an apportionment is considered, but no specific 
 
         apportionment can be made on the impairment rating because 
 
         defendants did not provide any specific evidence of what that 
 
         percentage should be.  Varied Industries, Inc. v. Sumner, 353 
 
         N.W.2d 407 (Iowa 1984); Becker v. D & E Distributing Co., 247 
 
         N.W.2d 727, 731 (Iowa 1976); 2 Damages and Tort Actions, section 
 
         15.34[l](a); 22 Am. Jur. 2nd, section 212.
 
         
 
              Dr. O'Neil awarded a 20 percent permanent functional 
 
         impairment rating to the body as a whole and restricted claimant 
 
         from work which requires standing, walking, and climbing and 
 
         which requires repetitive stooping, lifting and bending.  
 
         Claimant cannot drive for a long period of time.
 
         
 
              Defendants called no witnesses and introduced no separate 
 
         exhibits.
 
         
 
              The Iowa Supreme Court has stated that an employer's refusal 
 
         to provide any work for an injured employee is a factor to be 
 
         taken into consideration in the determination of industrial 
 
         disability irrespective and independent of functional impairment.  
 
         McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 192 (Iowa 1980).  
 
         In this case, after claimant was evaluated by their own 
 
         vocational rehabilitation consultant, claimant was not 
 
         recommended for vocational rehabilitation, but rather was 
 
         recommended to apply for long-term disability benefits and was 
 
         terminated.  Refusal of an employer to employ an injured employee 
 
         is strong evidence of lack of employability.
 
         
 
              Professor Larson makes a point which applies to this 
 
         particular case, "At the outset, one might suppose that the 
 
         refusal of defendant-employer himself to employ the claimant 
 
         would be the strongest kind of evidence against that employer."  
 
         Then he asserts what as a practical matter ought to be obvious, 
 
         "It is hardly necessary to labor the inconsistency of permitting 
 
         an employer to fire a man for physical defects caused by his own 
 
         employment conditions, and then to disclaim compensation 
 
         liability by presenting medical evidence that the man is not 
 
         really disabled after all."  2 Larson, Workmen's Compensation 
 
         Law, section 57.61(b) at pages 10-173 and 10-176.  If defendants 
 
         could find absolutely no work for claimant, but rather 
 
         recommended long-term disability, and if the social security 
 
         administration awarded permanent disability benefits, and 
 
         employer chose not to invest in any retraining for claimant, then 
 
         it is determined that claimant's industrial disability is 
 
         substantial.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Wherefore, based upon:  (1) the foregoing considerations; 
 
         (2) all of the considerations used to determined industrial 
 
         disability, Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 
 
         (1963); Peterson v. Truck Haven Cafe, Inc., Vol. 1, No. 3 State 
 
         of Iowa Industrial Commissioner Decisions 654, 658 (Appeal 
 
         Decision February 28, 1985); (3) employing agency expertise [Iowa 
 
         Administrative Procedure Act 17A.14(5)], it is determined that 
 
         claimant has sustained an industrial disability of 50 percent to 
 
         the body as a whole.
 
         
 
              The commencement date of permanent partial disability 
 
         benefits is not the date of the deputies decision as proposed by 
 
         defendants citing Dickenson v..John Deere Product Engineering, 
 
         Vol 1, No. 2 Industrial Commissioner Decisions 316, 319 (Appeal 
 
         Decision November 1984).  Rather, permanent partial disability 
 
         begins at the termination of healing period.  Iowa Code section 
 
         85.34(2); Teel v. McCord, 394 N.W.2d 405 (Iowa 1986).
 
         
 
              Defendants claim a credit for $11,784.15 for long-term 
 
         disability payments made to claimant prior to hearing.  The 
 
         parties stipulated that claimant did receive these benefits, but 
 
         claimant disputed that defendants are entitled to a credit for a 
 
         payment of the long-term disability benefits.  Claimant's 
 
         attorney contended that there was an administrative ruling 
 
         governing the payment of long-term disability, which held that 
 
         there was to be no credit for benefits paid up until December 30, 
 
         1988.  However, this administrative ruling was not introduced 
 
         into evidence.
 
              
 
              Iowa Code section 85.38(2) provides:
 
         
 
                   Credit for benefits paid under group plans.  In the 
 
              event the disabled employee shall receive any benefits, 
 
              including medical, surgical or hospital benefits, under any 
 
              group plan covering nonoccupational disabilities contributed 
 
              to wholly or partially by the employer, which benefits 
 
              should not have been paid or payable if any rights of 
 
              recovery existed under this chapter, chapter 85A or chapter 
 
              85B, then such amounts so paid to said employee from any 
 
              such group plan shall be credited to or against any 
 
              compensation payments, including medical, surgical or 
 
              hospital, made or to be made under this chapter, chapter 85A 
 
              or chapter 85B.  Such amounts so credited shall be deducted 
 
              from the payments made under these chapters.  Any 
 
              nonoccupational plan shall be reimbursed in the amount so 
 
              deducted.  This section shall not apply to payments made 
 
              under any group plan which would have been payable even 
 
              though there was an injury under this chapter or an 
 
              occupational disease under chapter 85A or an occupational 
 
              hearing loss under chapter 85B.  Any employer receiving such 
 
              credit shall keep such employee safe and harmless from any 
 
              and all claims or liabilities that may be made against them 
 
              by reason of having received such payments only to the 
 
              extent of such credit.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              Iowa Code section 79.20 provides:
 
         
 
                           EMPLOYEES DISABILITY PROGRAM
 
         
 
                   Employees disability program.  There is created a state 
 
              employees disability insurance program which shall be 
 
              administered by the executive council and which shall 
 
              provide disability benefits in an amount and for the 
 
              employees as provided in this section.  The monthly 
 
              disability benefits shall provide twenty percent of monthly 
 
              earnings if employed less than one year, forty percent of 
 
              monthly earnings if employed one year or more but less than 
 
              two years, and sixty percent of monthly earnings thereafter, 
 
              reduced by primary and family social security determined at 
 
              the time social security disability payments commence, 
 
              workers' compensation if applicable, and any other state 
 
              sponsored sickness or disability benefits payable.
 
         
 
              Thus, it can be seen from a reading of section 79.20, that 
 
         the State of Iowa Employees Disability Program was not intended 
 
         to provide claimant with a concurrent duplication of benefits; 
 
         that is, workers' compensation benefits and also long-term 
 
         disability benefits for the same period of time.  Section 79.20 
 
         says that the long-term disability benefits are to be reduced by 
 
         the workers' compensation benefits.  Likewise, it is clear that 
 
         the state employee long-term disability program was not intended 
 
         to be a plan "which would have been fully payable even though 
 
         there was an injury" under the worker's compensation laws 
 
         provided in Iowa Code section 85.38(2).  It is assumed that the 
 
         policy complies with the statute.  Thus defendants are entitled 
 
         to a credit pursuant to Iowa Code section 85.38 and Iowa Code 
 
         section 79.20.
 
         
 
              With respect to medical benefits, it has been determined 
 
         that when an employer's obligation for medical expenses has been 
 
         established, section 85.38(2) appears to provide a method by 
 
         which the employer may unilaterally act to satisfy those 
 
         liabilities. Krohn v. State, 420 N.W.2d 463 (Iowa 1988).
 
         
 
              Also, there is a line of authority within the agency that if 
 
         the group plan under which claimant received benefits was 
 
         contributed to by employer, then the employer is entitled to a 
 
         credit as a matter of law.  Furthermore, that defendants are 
 
         allowed to take whatever credit they believe is appropriate under 
 
         Iowa Code section 85.38(2) and if claimant believes that the 
 
         credit taken is improper he may petition the agency for relief. 
 
         Presswood v. Iowa Beef Processors, Inc., file no. 735442 (Appeal 
 
         Decision November 14, 1986); Olson v. Dept of Transportation, 
 
         file no. 738244 (Appeal Decision October 30, 1986) and Bakalar v. 
 
         Woodward State Hospital School, file no. 756871 (Appeal Decision 
 
         June 16., 1989).
 
         
 
              It cannot be determined whether the long-term disability 
 
         benefits were paid concurrently with the workers' compensation 
 
         benefits or whether they were paid at a different time separately 
 
         from the workers' compensation benefits.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Workers' compensation is based upon the principle of payment 
 
         of weekly benefits being paid in fixed weekly amount during 
 
         disability.  That principle prohibits using amounts overpaid in 
 
         the past to satisfy currently due weekly payments.  Division of 
 
         Industrial Services Rule 343-8.4; Comingore v. Shenandoah Art. 
 
         Ice, etc.  Company, 208 Iowa 430 226 N.W. 124 (1929); Van der 
 
         Wilt v. Sherman Produce Co., III Iowa Industrial Commissioner 
 
         Report 265, 267 (Appeal Decision 1982).  If there was a period 
 
         when long-term disability benefits and workers' compensation 
 
         benefits were paid concurrently, defendants cannot take a claim 
 
         against future benefits which become due.  Principle Financial, 
 
         the longterm disability carrier, may have a claim against 
 
         claimant for an overpayment, but this agency does not have 
 
         jurisdiction over that issue.
 
         
 
              Employer is entitled to a credit for workers' compensation 
 
         benefits which came due, but were not paid during times when 
 
         group long-term disability benefits were being paid.
 
         
 
              There is no credit for the $50 minimum group disability 
 
         payment which is paid irrespective of workers' compensation or 
 
         other benefit(s) payments.
 
         
 
              From the evidence submitted, the undersigned in not able to 
 
         compute the precise amount of credit entitlement.  Bland v. 
 
         Glenwood State Hospital School, file no. 819160, filed December 
 
         28, 1989.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented, the following 
 
         findings of fact are made:
 
         
 
              That the parties stipulated that the injury of August 27, 
 
         1986, was the cause of any permanent disability and that the 
 
         injury of December 9, 1986, was only a temporary exacerbation of 
 
         the first injury.
 
              
 
              That claimant made absolutely no job search of any kind 
 
         after the injury that occurred on August 27, 1986.
 
         
 
              That claimant was 42 years old at the time of the injury, 
 
         has an eighth grade education, obtained a GED in the army and 
 
         completed employer in-service training courses and passed these 
 
         tests.
 
         
 
              That Dr. O'Neil, the chief treating physician, awarded 
 
         claimant a 20 percent functional impairment to the body as a 
 
         whole.
 
         
 
              That Dr. O'Neil restricted claimant from prolonged standing, 
 
         walking or climbing and repetitive stooping, bending or lifting. 
 
         He added that claimant could only drive for a limited period of 
 
         time.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That Dr. O'Neil stated that claimant could not return to his 
 
         former employment as a correctional officer or guard over 
 
         potentially violent patients or inmates.
 
         
 
              That Dr. O'Neil said that claimant was precluded from 
 
         performing strenuous work in the future.
 
         
 
              That an employer retained a vocational rehabilitation 
 
         consultant tested and evaluated claimant, but the test results 
 
         and the evaluator's reports are not in evidence and there was no 
 
         testimony from the evaluator.
 
         
 
              That employer advised claimant to apply for long-term 
 
         disability benefits.
 
         
 
              That in order to receive long-term disability benefits, 
 
         claimant was required to apply for social security disability 
 
         benefits.
 
         
 
              That claimant was awarded social security disability 
 
         benefits.
 
         
 
              That employer did not offer claimant any light or sedentary 
 
         work which is the type of work that Dr. O'Neil said that claimant 
 
         was able to perform.
 
         
 
              That claimant suffered from a number of disincentives to 
 
         work or to be motivated to work such as obesity, hypertension, 
 
         angina pectoris, dependant edema, and degenerative arthritis in 
 
         his left knee.
 
         
 
              That claimant sustained an industrial disability in the 
 
         amount of 50 percent to the body as a whole.
 
         
 
              That claimant received $11,784.15 in long-term disability 
 
         benefits from the State of Iowa prior to hearing.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the evidence presented and the foregoing 
 
         principles of law, the following conclusions of law are made:
 
         
 
              That the injury of August 27, 1986 was the cause of 
 
         permanent disability.
 
         
 
              That claimant sustained an industrial disability of 50 
 
         percent to the body as a whole.
 
         
 
              That claimant is entitled to 250 weeks of permanent partial 
 
         disability benefits.
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that he is an odd-lot employee.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              That the extent of defendants' entitlement to a claim for 
 
         credit under Iowa Code section 85.38(2) cannot be determined from 
 
         the evidence submitted at the hearing.
 
         
 
              That claimant is not entitled to any further benefits for 
 
         the injury of December 9, 1986, as stipulated to by the parties.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant two hundred fifty (250) 
 
         weeks of permanent partial disability benefits at the rate of Two 
 
         Hundred Twenty-nine and 44/100 Dollars ($229.44) per week in the 
 
         total amount of Fifty-seven Thousand Three Hundred Sixty Dollars 
 
         ($57,360) commencing on November 21, 1987.
 
         
 
              That all accrued benefits are to be paid in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That defendants are entitled to a credit for eighty point 
 
         eight five seven (80.857) weeks of permanent partial disability 
 
         benefits paid at the time of hearing and the fall one hundred 
 
         (100) weeks of permanent partial disability benefits that they 
 
         had planned to pay at the time of hearing if in fact defendants 
 
         have paid these benefits.
 
         
 
              That the costs of this action, including the cost of the 
 
         transcript, are charged to defendants pursuant Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
              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 February, 1990.
 
         
 
                                       
 
                                       
 
                                       
 
                                       
 
                                       WALTER R. McMANUS, JR.
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Sheldon Gallner
 
         Attorney at Law
 
         803 3rd Ave.
 
         PO Box 1588
 
         Council Bluffs, IA  51502
 
         
 
         Ms. Shirley A. Steffe
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Assistant Attorney General
 
         Hoover State Office Bldg
 
         Des Moines, IA  50319
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            51401; 51402.40; 51803; 4100; 
 
                                            1701; 1703; 1704
 
                                            Filed February 28, 1990
 
                                            Walter R. McManus, Jr.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CHARLES VAN,
 
         
 
              Claimant,
 
         
 
         vs.
 
         
 
                                                      File No. 832067
 
         CLARINDA CORRECTIONAL                                 841123
 
         TREATMENT COMPLEX,
 
                                                  A R B I T R A T I 0 N 
 
              Employer,
 
                                                     D E C I S I 0 N
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance carrier,
 
              Defendants.
 
         
 
         
 
         51401; 51402-40; 51803
 
         
 
              Claimant, a correctional officer and guard, 6 foot 4 inches 
 
         tall and weighing 333 pounds, injured his back lifting a 
 
         transportation kit weighing 80 to 90 pounds.  Doctor awarded 20 
 
         percent permanent functional impairment and imposed restrictions 
 
         of no prolonged walking, standing and climbing, and no repetitive 
 
         stooping, lifting and bending.  Claimant could not drive for very 
 
         long.  Doctor limited claimant to light or sedentary work. 
 
         Defendants' vocational rehabilitation consultant tested and 
 
         evaluated claimant.  Test results or the evaluator's report were 
 
         not served on claimant or his attorney.  The evaluator did not 
 
         testify.  Claimant never heard from the evaluator again.  
 
         Claimant quit school in the eighth grade when he was 17 years old 
 
         and went into the army.  Defendants instructed claimant to apply 
 
         for long-term disability and terminated claimant.  Defendants 
 
         required claimant to apply for social security disability 
 
         benefits and claimant was awarded social security disability 
 
         benefits.  At the time of hearing, claimant had a number of 
 
         health problems and was receiving long-term disability benefits, 
 
         social security disability benefits and permanent partial 
 
         disability benefits and so there was little if any incentive to 
 
         work.  Claimant had not sought any work since the injury.  
 
         Claimant awarded 50 percent industrial disability.
 
         4100
 
         
 
              Claimant was not odd-lot because he had not sought any work.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         1701, 1703; 1704
 
         
 
              Defendants credit for long-term disability payments could 
 
         not be determined from the evidence submitted.  Claimant did not 
 
         introduce an administrative memorandum that he relied on. 
 
         Defendants did not submit a copy of the long-term disability 
 
         policy or even cite Iowa Code section 79.20 in their posthearing 
 
         brief.  The record did not disclose whether claimant received 
 
         long-term disability benefits concurrently with or separately 
 
         from workers' compensation benefits.
 
         
 
              It was determined that the State of Iowa Employees Long-term 
 
         Disability plan qualifies for a credit under Iowa code section 
 
         85.38(2).  During those times when claimant received both 
 
         workers' compensation benefits and long-term disability benefits, 
 
         credit is not available to deprive claimant of weekly benefits in 
 
         the future, because workers' compensation is intended to insure 
 
         that claimant receives a weekly benefits check every week.  The 
 
         long-term disability carrier may have an action against claimant 
 
         for any excess payments they made to which claimant was not 
 
         entitled. During those periods when the long-term disability was 
 
         paid and workers' compensation was not paid, defendants may apply 
 
         the credit.  Sufficient data was not submitted for the deputy to 
 
         accurately calculate the actual amounts involved.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         HAROLD RICK, JR.,
 
         
 
              Claimant,
 
         
 
         vs.
 
         
 
         THOMPSON ELECTRIC, CO.,                       File No. 832229
 
         
 
              Employer,                                  R U L I N G
 
         
 
         and
 
         
 
         CIGNA INSURANCE COMPANY
 
         OF NORTH AMERICA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
              On February 19, 1988 claimant filed a petition for a 
 
         declaratory ruling.  On March 15, 1988 the undersigned entered an 
 
         order of extension.  Claimant on the same date filed an amendment 
 
         to the previously filed petition.  Defendants have filed a 
 
         response to claimantOs petition.  On April 13, 1988 the 
 
         undersigned talked to petitionerOs attorney who, over the phone, 
 
         agreed to waive his request to a right of meeting pursuant to 
 
         paragraph 11 of his petition.
 
         
 
              Division of Industrial Services Rule 343-X.5 states that 
 
         this agency may refuse to issue a declaratory ruling for good 
 
         cause.
 
         
 
              WHEREFORE, claimantOs petition for declaratory ruling is 
 
         refused for the following reason:.
 
         
 
              The questions presented by the petition are also presented 
 
         in a current contested case that may definitively resolve them.
 
         
 
              THEREFORE, claimantOs petition for declaratory ruling is 
 
         refused and dismissed.
 
         
 
         
 
              Signed and filed this 15th day of April, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                                DAVID E. LINQUIST
 
                                                INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
                                                
 
                                                         
 
         
 
         Mr. David A. O'Brien
 
         Attorney at Law
 
         922 Douglas Street
 
         P.O. Box 3223
 
         Sioux City, Iowa 51102
 
         
 
         Mr. James. M. Cosgrove
 
         Attorney at Law
 
         1109 Badgerow Building
 
         P.O. Box 1828
 
         Sioux City, Iowa 51102
 
 
 
         
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         before the iowa industrial commissioner
 
         ____________________________________________________________
 
                   :
 
         THOMAS EDWARD JOHNSON,   :
 
                   :
 
              Claimant, :
 
                   :
 
         vs.       :
 
                   :      File No. 832378
 
         ROCHESTER PRODUCTS, :
 
                   :        A P P E A L
 
              Employer, :
 
                   :      D E C I S I O N
 
         and       :
 
                   :
 
         ROYAL INSURANCE COMPANY, :
 
                   :
 
              Insurance Carrier,  :
 
              Defendants.    :
 
         ___________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         February 28, 1990 is affirmed and is adopted as the final agency 
 
         action in this case. 
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of August, 1991.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                        INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. P. D. Furlong
 
         Attorney at Law
 
         401 Commerce Bldg
 
         P.O. Box 3005
 
         Sioux City, Iowa 51102
 
         
 
         Mr. Roger L. Carter
 
         Mr. William Kevin Stoos
 
         Attorneys at Law
 
         Jackson Plaza, Suite 300
 
         P.O. Box 327
 
         Sioux City, Iowa 51102
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed August 29, 1991
 
            Byron K. Orton
 
            DAD
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            THOMAS EDWARD JOHNSON,   :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 832378
 
            ROCHESTER PRODUCTS, :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            ROYAL INSURANCE COMPANY, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed February 
 
            28, 1990.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         THOMAS EDWARD JOHNSON,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                         File No. 832378
 
         ROCHESTER PRODUCTS,
 
                                         A R B I T R A T I 0 N
 
              Employer,
 
                                             D E C I S I 0 N
 
         and
 
         
 
         ROYAL INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Thomas Edward 
 
         Johnson, claimant, against Rochester Products, employer, and 
 
         Royal Insurance Company, insurance carrier, to recover benefits 
 
         under the Iowa Workers' Compensation Act as a result of an 
 
         alleged injury of June 25, 1986.  This matter came on for hearing 
 
         before the undersigned deputy commissioner June 14, 1989 and was 
 
         considered fully submitted at the close of the hearing   The 
 
         record in this case consists of the testimony of claim ant, 
 
         Shirley Patch, Earl Rose, Jane Pflepsen, Shirley Iddings, and 
 
         Rich Senger, and Joint Exhibits 1 through 13, inclusive, and 15 
 
         through 95, inclusive.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report and order submitted and 
 
         approved June 14, 1989, the following issues are presented for 
 
         resolution:
 
         
 
              1. Whether the claimant sustained an injury on June 25, 
 
         1986, which arose out of and in the course of his employment;
 
         
 
              2. Whether the alleged injury is the cause of the disability 
 
         on which claimant now bases his claim;
 
         
 
              3. The extent of claimant's entitlement to weekly benefits 
 
         including temporary total disability/healing period and permanent 
 
         partial disability benefits, if any; and
 
         
 
         
 
         
 
         JOHNSON V. ROCHESTER PRODUCTS
 
         Page 2
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
              4. Claimant's entitlement to certain medical benefits as 
 
         provided by Iowa Code section 85.27.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant, a union plumber and pipefitter with a city 
 
         plumber's license, testified he was injured in a fall while 
 
         carrying a pipe weighing approximately 50 pounds.  Claimant, who 
 
         had injured his back in 1980 and had Harrington rods placed in 
 
         his back in 1981 as a result of that injury, explained that the 
 
         pain he felt immediately after the fall on June 25, 1986 was 
 
         three or four inches above the pain he felt in his back after the 
 
         1980 injury and also that the pain went down both legs.  Claimant 
 
         recalled he reported the incident to his foreman, then went to 
 
         see the company nurse and then went to see a Dr. Morgan who 
 
         diagnosed a "stretched muscle" and told claimant to return to 
 
         work and seek a consultation with H. Randall Woodward, M.D., who 
 
         was claimant's physician for the 1980 injury.
 
         
 
              Claimant testified he did not go to see Dr. Woodward but 
 
         returned to work the following day as defendant employer provided 
 
         a lighter duty job, although claimant stated he was "in and out 
 
         of the nurse's office lying down" all the while he was at work 
 
         and could not recall whether or not he worked the entire day.  
 
         Claimant explained that his pain continued getting worse and that 
 
         he continued to see Dr. Morgan who, each time told claimant to 
 
         "go see your own doctor."  Claimant recalled that he went to see 
 
         Dr. woodward in approximately July 1986 and that Dr. Woodward 
 
         took him off work for a couple of weeks, restricting his ability 
 
         to stand, twist, bend, kneel and lift.  Claimant recalled that 
 
         when he did return to work defendants gave him a "lighter duty" 
 
         job sitting at a dial and that he tried this job on and off for 
 
         four or five days during which time he was in the nurse's office 
 
         lying down "a whole lot" and that eventually he was hurting so 
 
         bad he walked out of the plant sometime just after the first of 
 
         January 1987.
 
         
 
              Claimant stated that defendant insurance company has sent 
 
         him to see Michael J. Morrison, M.D., who advised him to quit his 
 
         job and that Dr. Morrison agreed with Dr. Woodward's treatment; 
 
         that defendant sent him to see a Dr. Durward, who told him to see 
 
         his own doctor and to a Dr. Samuelson, who told him to return to 
 
         his doctor and to check out a pain clinic.  Claimant testified 
 
         that he followed Dr. Woodward's advice and underwent surgery in 
 
         November of 1987 to take out the Harrington rod and to "fuse 
 
         vertebra above the others" which had been worked on after the 
 
         1980 injury. claimant stated he was hospitalized for two weeks 
 
         and restricted completely from lifting, twisting, kneeling and 
 
         bending.  Claimant testified that approximately six months after 
 
         surgery he was advised he could begin lifting up to five pounds 
 
         but that he was not released to return to work until August 1,
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         JOHNSON V. ROCHESTER PRODUCTS 
 
         Page 3
 
         
 
         
 
         1988, with the restrictions of "light duty," lifting no more than 
 
         15 pounds, no twisting, bending or kneeling and no standing or 
 
         sitting "for long periods of time."  Claimant stated he did not 
 
         return to defendant employer at this time because he did not 
 
         believe he could do the job that was offered since he had tried 
 
         doing it at home and he "hurt."  Claimant acknowledged he did not 
 
         try to do the job at work.  Claimant explained that every thirty 
 
         minutes he must change positions and that he can "maybe" walk a 
 
         block before his back bothers him.
 
         
 
              Claimant testified he was offered a job as a service 
 
         technician in California and that he therefore moved to 
 
         California where he worked on a commission basis earning 
 
         approximately $5,000 per month gross.  Claimant explained that 
 
         this was mostly light duty work and that he had two apprentices 
 
         working with him.  Claimant voluntarily left this employment to 
 
         return to Iowa as his family had not gone to California with him.  
 
         Claimant testified that since his return to Iowa he has been 
 
         self-employed having formed his own heating/plumbing and air 
 
         conditioning company.  Claimant stated he can now lift a maximum 
 
         of 25 pounds and that he employs subcontractors and others to do 
 
         any "heavy work."  Claimant estimated his earnings at $1,500 per 
 
         month gross, $500 per month net.
 
         
 
              Claimant testified that he is still under the restrictions 
 
         imposed by Dr. Woodward in August of 1988, that presently if he 
 
         "does too much of anything" he is stiff and sore for three days 
 
         after, that he cannot kneel, does not bend over anymore and does 
 
         not have the flexion now that he had before.  Claimant stated 
 
         that he can manage being in business for himself because he can 
 
         lie down whenever he wants to and that he "wants to do" his job 
 
         and "does not want to be an invalid."
 
         
 
              On cross-examination, claimant testified he is an "able and 
 
         gifted" mechanic, that he can install, design and supervise 
 
         wiring, that he owned and operated a used car lot and has been a 
 
         "very effective" drug and alcohol dependency counselor for his 
 
         union.  Claimant admitted that, along with the "pain factor," he 
 
         did not wish to return to work with defendant because the job 
 
         offered was "demeaning" and that he was "more qualified" than the 
 
         job required.  Claimant acknowledged that he was alone on the 
 
         roof on June 25, 1986 and that the only injuries he sustained to 
 
         his back were in 1980 and 1986 although "years and years ago" he 
 
         went to see a chiropractor whom he did not consider a doctor.  
 
         Claimant also acknowledged a 1977 injury from a fall off a ladder 
 
         from which he maintained he had completely recovered.  Claimant 
 
         testified he settled the 1980 injury for a $21,000 payment on the 
 
         basis of a compromise special case settlement (Iowa Code section 
 
         85.35).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         JOHNSON V. ROCHESTER PRODUCTS
 
         Page 4
 
         
 
         
 
              Claimant explained that on or about January 7, 1988, he 
 
         opened a used car lot where he managed the sales staff and hired 
 
         two individuals for cash to do the labor for him.  Claimant had 
 
         no record of payment to either of these individuals and 
 
         maintained that since he got no income from the car lot he did 
 
         not consider it employment.  Claimant admitted that he drove 
 
         himself to California on one occasion since his most recent back 
 
         surgery but maintained that he had to pull over several times in 
 
         order to rest and change positions.  Claimant, who owns some 
 
         income property, acknowledged that since his last surgery he has 
 
         repaired some steps, helped to install two furnaces, rerouted and 
 
         repaired some plumbing and helped to load some junk into a 
 
         pickup.
 
         
 
              The parties stipulated that, if called, claimant's wife 
 
         would verify claimant's testimony and would similarly testify.
 
         
 
              Shirley Patch, who identified herself as the plant nurse for 
 
         defendant employer responsible for the medical department and 
 
         supervision of workers' compensation benefits paid to employees, 
 
         testified that the light duty work available in the plant might 
 
         have varied but all of it would have been within claimant's 
 
         medical restrictions and would have paid claimant his regular 
 
         wage.  Ms. Patch explained that claimant worked from September 
 
         1986 through March 1987 at his regular job of pipefitter without 
 
         voicing any complaint or inability to do his job and that 
 
         claimant worked overtime during this period.  Ms. Patch recalled 
 
         that in March of 1987, when claimant did voice complaints 
 
         concerning his back, he was placed on light duty working the 
 
         dials which would allow him to sit or stand, "be his own boss" 
 
         and that claimant refused the work because it drove him "crazy" 
 
         but not on the basis that he could not do the job.  Ms. Patch 
 
         stated that when claimant was released to return to work he did 
 
         not return but took his sick time, his vacation time and applied 
 
         for a lump sum payment under the voluntary termination of 
 
         employment program.  That application, signed by claimant on 
 
         October 13, 1988, states, in part:
 
         
 
                 In consideration for the receipt of a VTEP payment, I 
 
              understand that (i) I will cease to be a General Motors 
 
              employe and my seniority will be broken at any and all of 
 
              the Corporation's Plants or other locations as of the date 
 
              this application for a VTEP payment is received by GM, and 
 
              (ii) I will have cancelled any eligibility that I otherwise 
 
              have had.for a Separation Payment and/or Redemption Payment 
 
              under Exhibits D-1 and E-1, respectively, to the Collective 
 
              Bargaining Agreement.  I hereby acknowledged that I am 
 
              voluntarily applying for this VTEP payment and that I am 
 
              able and available for work and suffer from no disability 
 
              that would preclude me from doing my regular assigned job.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         JOHNSON V. ROCHESTER PRODUCTS 
 
         Page 5
 
         
 
         
 
              I hereby represent that the information I am furnishing in 
 
              this application is true and correct to the best of my 
 
              information and belief.
 
         
 
         (Joint Exhibit 24)
 
         
 
              Earl Rose, who identified himself as a maintenance 
 
         supervisor for defendant employer responsible for coordinating 
 
         and delegating work to skilled personnel, testified that he was 
 
         claimant's supervisor on June 25, 1986 and had no specific 
 
         recollection of any conversation wherein claimant requested help 
 
         carrying pipe.  Mr. Rose stated he never denied an employee's 
 
         request for help pursuant to his own and the company policy.  On 
 
         cross-examination, Mr. Rose testified that he did not recall 
 
         claimant reporting an injury on June 25, 1986.
 
         
 
              Jane Pflepsen, who identified herself as an industrial 
 
         engineer for defendant employer who lays out and designs work 
 
         stations, testified that the light duty work at the dials 
 
         constitutes small and separate work stations for sub-assembly.  
 
         Ms. Pflepsen stated employees who work at the dials may sit or 
 
         stand as they wish and they can shut off the dials and walk away 
 
         from them if they need to.  Ms. Pflepsen stated she prepares 
 
         training films for defendant employer and that Exhibit 46 is a 
 
         composite of those films.
 
         
 
              Shirley Iddings testified that claimant was her landlord for 
 
         approximately three years and that she would call claimant or his 
 
         brother if she had a problem at the apartment.  Ms. Iddings 
 
         stated that since June 26, 1986, she has called claimant 
 
         concerning repairs and that claimant has personally made those 
 
         repairs.  Ms. Iddings opined that claimant had no problems 
 
         lifting, bending or stooping.
 
         
 
              Ms. Iddings testified that claimant installed two electrical 
 
         outlets in her kitchen, two furnaces with a friend, although 
 
         claimant did most of the work, replaced two stairs, loaded and 
 
         unloaded a pickup, repaired a faucet, was seen, with his son, 
 
         carrying a "big roll of carpet" upstairs, corrected a leak on 
 
         January 26, 1989, and carried in "a package of three tiles" for a 
 
         drop ceiling for her apartment on January 31, 1989.  Ms. Iddings 
 
         recalled that claimant eventually installed those tiles for that 
 
         ceiling.  Ms. Iddings stated that on February 4 claimant came to 
 
         her apartment to reroute the pipes, that claimant later climbed a 
 
         ladder and reached overhead to repair a light fixture, that on 
 
         February 8 claimant was seen carrying, with his nephew, two 
 
         mattresses and that claimant, later in February, replaced a floor 
 
         and installed plumbing pipes.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              On cross-examination, Ms. Iddings explained that while her 
 
         relationship with claimant as her landlord was good in the past,
 
         
 
         
 
         
 
         JOHNSON V. ROCHESTER PRODUCTS 
 
         Page 6
 
         
 
         
 
         most recently it has not been "so good."  Ms. Iddings 
 
         acknowledged that defendant counselor's partner wrote a letter to 
 
         claimant concerning a thermostat on her behalf and that she did 
 
         not pay this attorney for those services.
 
         
 
              Rich Senger, who identified himself as a licensed private 
 
         investigator with Interlux Investigations, testified he conducted 
 
         surveillance of claimant during the summer of 1988, that on July 
 
         14 claimant was observed loading an air conditioning unit onto a 
 
         Chevy pickup and that on July 16 claimant was seen working 
 
         underneath his Chevy pickup.
 
         
 
              Mr. Senger opined that there was "no way [claimant] was 
 
         hampered in what [he] was doing" and that claimant appeared to 
 
         bend, stoop and twist freely.  Mr. Senger summarized his findings 
 
         and conclusions as:
 
         
 
                 Information obtained concerning Mr. Johnson has shown him 
 
              to be involved in automotive sales and repairs, 
 
              independently and through his association with "Heartland 
 
              Motors" of Sioux City, Iowa and in the repair and 
 
              maintenance of rental property.  He is also actively 
 
              involved in heating and air conditioning work, locally, and 
 
              presently has a position with a heating and air conditioning 
 
              business in Anaheim, California.
 
              
 
                 Through our documented observations of Mr. Johnson, we 
 
              have found him engaged in a number of physical activities, 
 
              including the loading and unloading of equipment, an air 
 
              conditioning unit and various repair operations on motor 
 
              vehicles and the regular operation of same, including Mr. 
 
              Johnson's favorite vehicle, a dual wheeled GMC pickup.
 
              
 
                 In these observations, neither I, nor my operatives have 
 
              witnessed anything to indicate that Mr. Johnson's movement 
 
              or functional ability is impaired in any way.  His mobility 
 
              and movements are fluid and unencumbered and he has 
 
              displayed marked ability to bend, stoop, twist and flex with 
 
              full mobility, while showing no signs of pain or discomfort.
 
              
 
                 Any injuries Mr. Johnson may have suffered appears to 
 
              have healed to the point that it no longer diminishes his 
 
              capacity to effectively perform any task which he elects to 
 
              perform.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         (Jt. Ex. 47)
 
         
 
         
 
         
 
         JOHNSON V. ROCHESTER PRODUCTS 
 
         Page 7
 
         
 
         
 
              The office notes of H. Randall Woodward, M.D., dated August 
 
         1, 1986, state:
 
         
 
              The patient reports a sudden onset of low back pain about 
 
              7/16/86 while he was "wrestling" with a 6" drain pipe.  
 
              After the injury he was seen by his company doctor, who 
 
              recommended muscle relaxants and two weeks of bed rest.  He 
 
              has done this, but continues to have discomfort in his low 
 
              back.  There is not a significant amount of pain in his 
 
              lower extremities other than mild to moderate in his 
 
              buttocks.
 
              
 
                 Once again his neurologic examination is normal, and 
 
              range of motion of his lower extremities is normal.
 
              
 
                 I believe the diagnosis remains the same as when I saw 
 
              him in March of 1986.  He probably has pseudarthrosis, at 
 
              least at L4-5.  This may resolve with a little time and 
 
              rest.  I have given him a prescription for Flexeril and 
 
              Indocin, and the patient should call my office in about 2 
 
              weeks to report his progress and see whether we should 
 
              gradually return to normal activities at that time.
 
         
 
         (Jt. Ex. 1, page 3)
 
         
 
              Dr. Woodward, on October 7, 1987, summarized claimant's 
 
         medical treatment to that date as:
 
         
 
              The patient is a 37-year old white male, who I first 
 
              evaluated in 1981, at which time he underwent posterolateral 
 
              spine fusion, L4 through Sl, using double Knodt rods in the 
 
              distraction mode, with a right iliac autogenous bone graft.  
 
              He had an excellent postoperative course and recovery, and 
 
              went back to work, doing relatively heavy labor in a 
 
              plumbing company.
 
              
 
                 I released the patient to long-term followup, and he was 
 
              not having much problems.  He saw me in March, 1986, when I 
 
              evaluated him for occasional discomfort when he was 
 
              twisting, turning, or bending, but he had no radicular 
 
              symptoms at that that.  X-rays showed a probable 
 
              pseudarthrosis at the L4-5 level.  I recommended medical 
 
              treatment at that point.
 
              
 
                 The patient apparently then did well, until 07/16/86, 
 
              when he had the sudden onset of low back pain while he was 
 
              "wrestling" with a six-inch drain pipe.  After the injury he 
 
              was seen by his company physician, who recommended muscle 
 
              relaxants and two weeks of bed
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         JOHNSON V. ROCHESTER PRODUCTS 
 
         Page 8
 
         
 
         
 
              rest.  The patient did this, but continued to have 
 
              discomfort in his low back and was seen in my office on 
 
              08/01/86.  I reviewed the x-rays and confirmed what appeared 
 
              to be a pseudarthrosis at the L4-5 level.  I recommended 
 
              continued medical treatment, and gradual return to normal 
 
              activities.
 
              
 
                 The patient did improve to a significant degree over the 
 
              next several weeks, and was able to return to light work 
 
              duty within the next three or four weeks.  However, he 
 
              continued to have some discomfort and was treated with 
 
              anti-inflammatory medications, primarily Motrin, with 
 
              Flexeril and Parafon-Forte occasionally.
 
              
 
                 I saw the patient once again on 05/08/87, and found he 
 
              was having continued complaints of pain in the low back and 
 
              the left lower extremity, with discomfort radiating down to 
 
              the knee, which was constant.  His right lower extremity was 
 
              no problem.  At that point I recommended exploration of the 
 
              fusion mass and repair of pseudarthrosis, if present.  He 
 
              was evaluated by Dr. M. J. Morrison for this as well.
 
              
 
                 ....
 
              
 
              X-rays show a pseudarthrosis at the L4-5 level, with graft 
 
              material from L4 to Sl.  There does not appear to be a 
 
              pseudarthrosis at the L5-Sl level, and double Knodt 
 
              distraction rods are in place.
 
              
 
              IMPRESSION: 1.  Status post L4-S1 spine fusion with
 
                              internal fixation.
 
              
 
                          2.  Probable L4-5 pseudarthrosis.
 
         
 
         (Jt. Ex. 2, p. 3)
 
         
 
         
 
              S. Bailey, M.D., a consulting physician, noted his 
 
         impression of claimant's condition as "Degenerative disc disease 
 
         of the lumbosacral spine, status post posterolateral spinal 
 
         fusion.  Probable pseudoarthrosis."  (Jt.  Ex. 2, p. 6)  On 
 
         October 8, 1987 claimant underwent,an "Exploration of lumbosacral 
 
         spine fusion and removal of internal fixation, and repair of 
 
         pseudoarthrosis, L4-5 with left iliac autogenous bone graft."  
 
         (Jt. Ex. 2, p. 8)
 
         
 
              On July 19, 1988, Dr. Woodward opined:
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              I have recommended that Mr. Johnson return to work
 
              activities on 8/l/88.  One could never be absolutely
 
         
 
         
 
         
 
         JOHNSON V. ROCHESTER PRODUCTS 
 
         Page 9
 
         
 
         
 
              sure that the fusion is solid, but it appears as if it is, 
 
              and he seems to be getting along satisfactorily.  In regard 
 
              to his work activities, I think the patient could handle a 
 
              restricted duty manufacturing job as you have outlined.  
 
              Returning to his work as a "pipe fitter" may be possible but 
 
              I would be hesitant to recommend this without qualification.  
 
              He should avoid long periods of standing and walking and 
 
              should avoid twisting, turning, and bending in the low back 
 
              area.
 
              
 
                 I believe Mr. Johnson has reached maximum medical 
 
              improvement on 8/l/88.  At this point his permanent partial 
 
              impairment rating should be 22% of the whole man.
 
         
 
         (Jt..Ex. 4)
 
         
 
              Michael J. Morrison, M.D., of Orthopedic Clinic, P.C., saw 
 
         claimant at the suggestion of Eischen Rehabilitation Services.  
 
         On July 27, 1988, Dr. Morrison opined:
 
         
 
                 I am writing you in response to a follow-up examination 
 
              done on Tom Johnson, July 26, 1988.  As you are aware, he 
 
              underwent, in October of 1987, an exploration of a 
 
              lumbosacral fusion and repair of a pseudoarthrosis from 
 
              L4-L5 with iliac bone graft.  At the present time, he has 
 
              reached maximum medical recovery according to his primary 
 
              physician, Dr. Woodward.
 
              
 
                 His examination in the office reveals well healed midline 
 
              and lateral incisions involving his lower back.  His forward 
 
              flexion is restricted to 30 degrees because of pain and 
 
              stiffness.  There is no gross muscle weakness in either 
 
              lower extremity.  Knee jerk and ankle jerks are 1+/4+ and 
 
              straight leg raising is negative bilaterally.
 
              
 
                 X-rays were deferred in our office since they have been 
 
              recently done at Dr. Woodward's office and, according to the 
 
              patient, he was informed that his fusion was solid.  I also 
 
              informed him that from my standpoint, he has reached maximum 
 
              medical recovery from undergoing an L4 to the sacrum fusion.  
 
              His permanency would be 20% whole body for all the surgery 
 
              that he has undergone and his job description in the future 
 
              should be to avoid frequent bending over to do any lifting 
 
              greater than 30-40 pounds since this would reaggravate his 
 
              back as well as avoiding prolonged sitting.or standing and 
 
              if expected to sit for any extended period of time, he 
 
              should be allowed to get up
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         JOHNSON V. ROCHESTER PRODUCTS
 
         Page 10
 
         
 
         
 
              and stretch as needed.  He should not be expected to do any 
 
              crawling, kneeling or squatting.
 
         
 
         (Jt. Ex. 69)
 
         
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              Of first concern is whether or not claimant sustained an 
 
         injury which arose out of and in the course of his employment and 
 
         whether the disability on which claimant now bases his claim is 
 
         causally connected to his employment.
 
         
 
              The claimant must prove by a preponderance of the evidence 
 
         that his injury arose out of and in the course of his employment.  
 
         Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 
 
         (1967).
 
         
 
              In the course of employment means that the claimant must 
 
         prove his injury occurred at a place where he reasonably may be 
 
         performing his duties.  McClure v. Union, et al., Counties, 188 
 
         N.W.2d 283 (Iowa 1971).
 
         
 
              Arising out of suggests a causal relationship between the 
 
         employment and the injury.  Crowe v. DeSoto Consolidated School 
 
         District, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of June 25, 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. 0. 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).
 
         
 
              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
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         JOHNSON V. ROCHESTER PRODUCTS
 
         Page 11
 
         
 
         
 
         other surrounding circumstances.  Bodish, 257 Iowa 516, 133 
 
         N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 N.W.2d 128.
 
         
 
              Claimant has alleged that on June 25, 1986, he was injured 
 
         in a fall while carrying a length of pipe and that that fall was 
 
         the precipitator of his subsequent medical treatment and 
 
         disability.  Claimant was alone on the roof when he alleged he 
 
         fell.  Defendants, outside of presenting fairly convincing 
 
         evidence which calls claimant's credibility into question 
 
         (claimant's failure to disclose prior injuries; claimant's 
 
         assertion he was totally unable to work while at the same time 
 
         making repairs on his rental property involving the expenditure 
 
         of some effort on his part; claimant's practice of paying helpers 
 
         at his own used car business in cash; and claimant's 
 
         self-employment activities subsequent to June 25, 1986), 
 
         presented no evidence which would show claimant did not fall as 
 
         alleged.  However, the greater weight of evidence leads the 
 
         undersigned to the conclusion that even if claimant fell as 
 
         alleged, his fall did not result in an injury which caused the 
 
         disability on which claimant now bases his claim.
 
         
 
              As cited above, the question of causal connection is 
 
         essentially within the domain of expert testimony and therefore 
 
         it is appropriate to first review the opinions of Drs. Woodward 
 
         and Morrison.
 
         
 
              Dr. Woodward, who treated claimant following the 1980 
 
         incident, opined as early as March 1986 that claimant was 
 
         suffering from pseudoarthrosis, or nonunion at the L4-5 level.  
 
         Claimant underwent a fusion at that level in 1981.  Dr. Woodward, 
 
         while noting a July 16, 1986 incident at work, does not causally 
 
         connect claimant's later medical treatment or his impairment to 
 
         the work incident. (It is noted that Dr. Woodward's dates are 
 
         different from that alleged by claimant; however, it is also 
 
         noted that the description of the incident recorded by Dr. 
 
         Woodward is as detailed by claimant.  Nevertheless, it calls into 
 
         question the accuracy of claimant's history given to the doctor.) 
 
         Dr. Morrison also does not causally connect claimant's problems 
 
         to the alleged June 1986 injury.  Dr. Morrison agrees with Dr. 
 
         Woodward's diagnosis and treatment and opined that claimant's 
 
         impairment was for "all the surgery that he has undergone."  Like 
 
         Dr. Woodward, Dr. Morrison does not causally claimant's 
 
         disability with any incident on June 25, 1986.
 
         
 
              The greater weight of medical evidence establishes that the 
 
         cause of claimant's current disability was the pseudoarthrosis or 
 
         nonunion which came about as a result of the 1980 injury and 1981 
 
         surgery.  There is no evidence to suggest the nonunion was caused 
 
         by claimant's employment with defendant employer.  The only 
 
         evidence of a causal connection between claimant's employment and 
 
         his asserted disability is claimant's own self-serving testimony.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         JOHNSON V. ROCHESTER PRODUCTS 
 
         Page 12
 
         
 
         
 
         The undersigned finds this insufficient to allow claimant to meet 
 
         his burden of proof.  Therefore, it is found that claimant has 
 
         failed to show that on June 25, 1986 he sustained an injury which 
 
         arose out of and in the course of his employment which is 
 
         causally connected to the disability on which he now bases his 
 
         claim.  Accordingly, claimant shall take nothing as a result of 
 
         these proceedings and the other issues presented for resolution 
 
         need not be addressed.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based on all of the evidence presented, the 
 
         following findings of fact are made.
 
         
 
              1. Claimant sustained an injury in 1980 and in 1981 
 
         underwent posterolateral spine fusion, L4 through Sl, using Knodt 
 
         rods in the distraction mode, with a right iliac autogenous bone 
 
         graft.
 
         
 
              2. Claimant was found to be permanently impaired as a result 
 
         of that injury and settled his workers, compensation claim under 
 
         Iowa Code section 85.35.
 
         
 
              3. Claimant's treating physician for that injury was H. 
 
         Randall Woodward, M.D.
 
         
 
              4. In March 1986, claimant returned to see Dr. Woodward for 
 
         pain and Dr. Woodward diagnosed pseudoarthrosis, or nonunion, at 
 
         the L4-5 level.
 
         
 
              5. Claimant alleged he fell at work on June 25, 1986 while 
 
         carrying a length of pipe.
 
         
 
              6. Claimant was working alone when he alleged he fell.
 
         
 
              7. Claimant's credibility is suspect.
 
         
 
              8. Claimant was able to remain working at his regular job 
 
         for some time after June 25, 1986.
 
         
 
              9. Claimant eventually left work and underwent surgical 
 
         repair of the pseudoarthrosis.
 
         
 
              10. No medical practitioner who treated or evaluated 
 
         claimant causally connects claimant's disability to any work 
 
         injury on June 25, 1986.
 
         
 
              11. The greater weight of medical evidence establishes that 
 
         the cause of claimant's current disability is the pseudoarthrosis 
 
         or nonunion which came about as a result of the 1980 injury and 
 
         1981 surgery.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         JOHNSON V. ROCHESTER PRODUCTS
 
         Page 13
 
         
 
         
 
              12. The only evidence of a causal connection between 
 
         claimant's employment and his asserted disability is claimant's 
 
         own self-serving testimony.
 
         
 
              13. Claimant has failed to show that on June 25, 1986 he 
 
         sustained an injury which arose out of and in the course of his 
 
         employment which is causally connected to the disability on which 
 
         he now bases his claim.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Therefore, based on the principles of law previously stated, 
 
         the following conclusions of law are made.
 
         
 
              Claimant has failed to show that on June 25, 1986 he 
 
         sustained an injury which arose out of and in the course of his 
 
         employment which is causally connected to the disability on which 
 
         he now bases his claim.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              Claimant shall take nothing as a result of these 
 
         proceedings.
 
         
 
              Each party is assessed its own costs pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 28th day of February, 1990.
 
         
 
         
 
         
 
                                         DEBORAH A. DUBIK
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies to:
 
         
 
         Mr P D Furlong
 
         Attorney at Law
 
         401 Commerce Bldg
 
         P 0 Box 3005
 
         Sioux City IA 51102
 
         
 
         Mr Roger L Carter
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Mr William Kevin Stoos
 
         Attorneys at Law 
 
         Jackson Plaza Ste 300
 
         P 0 Box 327
 
         Sioux City IA 51102
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         5-1100
 
                                         Filed February 28, 1990
 
                                         Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         THOMAS EDWARD JOHNSON,
 
         
 
              Claimant,
 
         
 
         VS.
 
         
 
                                               File No. 832378
 
         ROCHESTER PRODUCTS,
 
         
 
                                                A R B I T R A T I 0 N
 
              Employer,
 
         
 
                                                  D E C I S I 0 N
 
         and
 
         
 
         ROYAL INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         5-1100
 
         
 
         
 
              Claimant failed to show an injury arising out of and in the 
 
         course of his employment where, in 1980, he injured his back and 
 
         underwent posterolateral spine fusion, L4 through Sl, using Knodt 
 
         rods and the diagnosis in 1985 (claimant alleged a June 25, 1985 
 
         injury) prior to the alleged injury date was pseudoarthrosis or 
 
         non-union at the fusion site.