Page   1
 
            
 
            
 
            
 
            
 
                      51803
 
                      Filed July 3, 1991
 
                      Marlon D. Mormann
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            GARRY STONER,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No.  832932
 
            MIDWEST MANUFACTURING,   :
 
                      :  A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            SENTRY INSURANCE,   :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            51803
 
            Claimant, age 27, factory worker, with 5 percent impairment 
 
            and 20 to 40-pound lifting restrictions was returned to work 
 
            for employer with a small wage loss entitled to 12 percent 
 
            industrial disability.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DONALD E. CARLE,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :        File No. 833021
 
            RILEY BROTHERS, INC.,         :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            UNITED STATES FIDELITY and    :
 
            GUARANTY COMPANY,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                                   introduction
 
            
 
                 This is an arbitration proceeding brought by Donald E. 
 
            Carle, claimant, against Riley Brothers, Inc., employer, and 
 
            United States Fidelity and Guaranty Company, insurance 
 
            carrier, defendants.  The case was heard by the undersigned 
 
            on July 18, l989, in Burlington, Iowa.
 
            
 
                 The record consists of joint exhibits 1-50 and exhibits 
 
            51 and 52 for purposes of rebuttal.  An application to 
 
            strike from the record certain documents which were 
 
            improperly and untimely appended to deposition transcript of 
 
            claimant's expert Varner was filed by defendants on July 26, 
 
            1989.  Claimant's resistance to respondent's application to 
 
            strike was filed on August 1, 1989.  After reviewing the 
 
            application and the resistance, it is the determination of 
 
            the undersigned that the deposition exhibits attached to 
 
            exhibit 47A are admissible.  All of the exhibits have been 
 
            discussed in the deposition.  Detailed citation references 
 
            have been given during the deposition.  Defendants have been 
 
            afforded an opportunity to cross-examine Dr. Varner relative 
 
            to the same, as well as to use the exhibits when deposing 
 
            Dr. Harbison.
 
            
 
                 It is the ruling of the undersigned that the 
 
            aforementioned exhibits are admissible.
 
            
 
                          
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            issues
 
            
 
                 As a result of the prehearing report and order 
 
            submitted on July 18, 1989, the issues presented by the 
 
            parties are:
 
            
 
                 1.  Whether claimant received an injury which arose out 
 
            of and in the course of employment;
 
            
 
                 2.  Whether there is a causal relationship between the 
 
            alleged injury and the disability;
 
            
 
                 3.  Whether claimant is entitled to temporary 
 
            disability/ healing period benefits or permanent partial or 
 
            total disability benefits;
 
            
 
                 4.  Whether claimant is entitled to medical benefits 
 
            under section 85.27 and/or a medical evaluation under 
 
            section 85.39; and,
 
            
 
                 5.  What is claimant's weekly benefit rate, if any.
 
            
 
                                   stipulations
 
            
 
                 Prior to the hearing, the parties entered into a number 
 
            of stipulations.  The stipulations are as follows:
 
            
 
                 1.  The existence of an employer-employee relationship 
 
            between claimant and employer at the time of the alleged 
 
            injuries;
 
            
 
                 2.  That the type of permanent disability, if the 
 
            injury is found to be a cause of permanent disability, is 
 
            stipulated to be an industrial disability to the body as a 
 
            whole;
 
            
 
                 3.  Medical/hospitalization expenses in the amount of 
 
            ____________ (unknown) and defendants are entitled to 
 
            credit; and,
 
            
 
                 4.  Defendants paid claimant 23.14 weeks of 
 
            compensation at the rate of $150.04 per week prior to 
 
            hearing.
 
            
 
                                 facts presented
 
            
 
                 Claimant completed the tenth grade before dropping out 
 
            of school.  He received his GED in 1978.  Claimant testified 
 
            he began his employment with defendant through JTPA and that 
 
            he started on October 1, 1984, at the Washington Street 
 
            plant.  Claimant indicated he was hired to wash and hang 
 
            parts with a solvent known as xylo or xylene.  According to 
 
            claimant, he would dip a brush into a bucket of solvents and 
 
            brush the solvents onto the parts he washed.  Claimant 
 
            testified he performed this task for four or five hours per 
 
            day.  During the time he used the solvent, claimant 
 
            testified he would become light headed.  After an hour, he 
 
            testified, he would have to go outside and smoke a 
 
            cigarette.  Then he stated, he would return to the building.  
 
            Claimant reported he would get headaches which would last 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            for three or four days.
 
            
 
                 Claimant indicated he was placed in several locations 
 
            in both plant number 1 and in plant number 2.  At one 
 
            location, claimant indicated an exhaust fan blew solvent 
 
            fumes directly into his face and he was not wearing a 
 
            respirator.  Claimant indicated he wore rubber gloves and an 
 
            apron while working.  The gloves covered his wrists, but 
 
            according to claimant, xylene would get into the gloves and 
 
            burn the skin.  Xylene would also run into his shoes.
 
            
 
                 Claimant testified he was often required to clean a 
 
            particular 4 x 4 foot dip tank.  He stated he would work 
 
            approximately ten minutes near a trough and then he would 
 
            have a headache.
 
            
 
                 According to claimant's direct testimony, he was moody 
 
            during the time he worked in plant number 2.  Claimant 
 
            indicated he sought medical treatment from N. D. Kauffman, 
 
            M.D.
 
            
 
                 Dr. Kauffman, in his letter to claimant's employer, 
 
            wrote as of September 9, 1986:
 
            
 
                 The above named patient has come under my care 
 
                 recently.  He has multiple symptoms including irri
 
                 tability, depressive feelings, memory loss, lack 
 
                 of initiative, etc.  Current laboratory testing 
 
                 has demonstrated marked elevation of various 
 
                 solvents in his blood.  It appears that the source 
 
                 of these is his workplace and it appears that his 
 
                 symptoms are related to such solvent exposure.  I 
 
                 have advised him, on this basis, from a medical 
 
                 standpoint, that he must stop working at this 
 
                 time.  The future resolution of his medical 
 
                 problem is absolutely uncertain at this point.  
 
                 Placing him on disability benefits, workmen's 
 
                 compensation, etc., would be absolutely 
 
                 appropriate.  Please call if there are any 
 
                 questions.
 
            
 
                 Later, Dr. Kauffman wrote in his letter of October 3, 
 
            1986:
 
            
 
                 My impression is that Mr. Carle suffers from 
 
                 complex symptomatology which is related to solvent 
 
                 exposure.  The presence of excess amounts of 
 
                 solvent has been demonstrated by blood levels.  In 
 
                 addition, he seems to have a memory impairment.  
 
                 He has been seen by a neurologist who has 
 
                 interpreted that he has mixed motor-sensory 
 
                 neuropathy.  This type of picture is seen with 
 
                 high solvent level exposures and is entirely 
 
                 compatible with this.
 
            
 
                 I have accordingly advised the patient that he 
 
                 must not work any further.  Due to the central 
 
                 nervous system damage which he's experienced as 
 
                 well as peripheral nervous system impairment, I do 
 
                 not feel he is a candidate for returning to any 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 kind of work at this point.  Future acceptability 
 
                 for employment will be dependent on his recovery 
 
                 and it is anticipated this will some time to 
 
                 occur, and, in fact, may never occur.
 
            
 
                 There is also no question that the patient's work 
 
                 exposure has been the cause of his high level of 
 
                 solvents.
 
            
 
                 Claimant testified he was also examined at the 
 
            University of Iowa Occupational Medicine Clinic on December 
 
            15, 1986.  Claimant was seen by James A. Merchant, M.D. and 
 
            L. Fuortes, M.D.
 
            
 
                 Dr. Merchant opined claimant was not suffering from 
 
            solvent induced neuropathy, but there was "a probable 
 
            transient solvent intoxication with occupational exposure."
 
            
 
                 As of February 16, 1987, Dr. Merchant recommended for 
 
            claimant:
 
            
 
                 We recommend that the patient's work environment 
 
                 and tasks be modified such as to minimize dermal 
 
                 and inhallational exposures to solvents.  The only 
 
                 limitations placed upon his return to work are 
 
                 that protective clothing and engineering controls 
 
                 be provided.  Although full length aprons, elbow 
 
                 length gloves, and local exhaust ventilation may 
 
                 satisfactorily limit solvent exposures, strong 
 
                 consideration should be given to use of an 
 
                 automated or self-contained degreasing unit.  The 
 
                 solvents should not be used for hand washing under 
 
                 any conditions; industrial hand cleaners may be a 
 
                 suitable alternative.  Consideration should also 
 
                 be given to use of respiratory protection.
 
            
 
                 The record reveals that while claimant was seen at the 
 
            University of Iowa Occupational Medicine Clinic, he was also 
 
            continuing treatment with Dr. Kauffman.
 
            
 
                 In April of 1987, Dr. Kauffman wrote a report 
 
            concerning claimant's condition.  He opined:
 
            
 
                 He has had demonstrated peripheral neuropathy with 
 
                 associated symptoms as well as a change in 
 
                 mentation and this is also documented by testing, 
 
                 demonstrating that he has had toxic insult to his 
 
                 nervous system.  It is well documented in the 
 
                 literature that exposure to aromatic solvents in 
 
                 the workplace is associated with development of 
 
                 these problems.
 
            
 
                 In addition, Mr. Carle has a behavior problem 
 
                 which is simply characterized as an explosive 
 
                 temperament.  On March 6 he had an explosion of 
 
                 his temper while in the presence of his 
 
                 stepdaughter and struck her on the face with his 
 
                 hand to the point where a handprint was clearly 
 
                 visible to me three days later, when I wasn't even 
 
                 expecting to find it.  He has had multiple 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 episodes of a similar type of explosions in recent 
 
                 weeks.  Going over this man's history carefully, 
 
                 he did have some indications of this type of 
 
                 behavior on an intermittent and milder basis prior 
 
                 to his working at Riley Brothers.  However, this 
 
                 problem has become markedly exacerbated since his 
 
                 working there.  The medical diagnosis for this 
 
                 condition has been variously termed episodic 
 
                 dyscontrol syndrome, episodic rage attacks, and 
 
                 limbic system dysfunction with pseudosensory 
 
                 phenomena without loss of consciousness and has 
 
                 also been loosely characterized as a temporal lobe 
 
                 seizure, although that is probably not the best 
 
                 terminology.
 
            
 
                 This seizure-like behavior has been described in 
 
                 the literature in painters who are exposed heavily 
 
                 to solvents in their working environment.  It is 
 
                 my opinion that whatever pathology he may have had 
 
                 before has been markedly exacerbated by his 
 
                 exposure to the solvents in his workplace.
 
            
 
                 P.S.  Mr. Carle will not be cleared to return to 
 
                 work until the episodic dyscontrol is under better 
 
                 control or otherwise he will be a significant 
 
                 danger to those around him in his workplace.  Even 
 
                 at best, should such control be achieved, and it 
 
                 is anticipated it will be with the proper 
 
                 adjustment of his medication, I must say I have 
 
                 great reservations about sending a man back into 
 
                 an environment where he will be re-exposed to sol
 
                 vents that have previously caused him injury.  
 
                 That should not, however, prevent his returning to 
 
                 some type of employment when his symptoms are 
 
                 adequately controlled.
 
            
 
                 Dr. Kauffman determined that as of February 3, 1989, 
 
            claimant had reached maximum recovery.  Dr. Kauffman also 
 
            opined claimant sustained peripheral neuropathy due to 
 
            exposure to solvents in the workplace and claimant sustained 
 
            episodic dyscontrol prior to his employment with defendant 
 
            but that claimant's condition was exacerbated by the solvent 
 
            exposure.
 
            
 
                 Dr. R. F. Neiman, M.D., a neurologist, examined 
 
            claimant in September of 1986.  He opined claimant suffered 
 
            from an axonal type neuropathy.  He indicated the CT scan 
 
            was normal and he would have to review medical literature 
 
            for problems associated with organic solvents.
 
            
 
                 The medical records indicate claimant was referred to 
 
            Vernon P. Varner, M.D., by Dr. Kauffman.  Dr. Varner also 
 
            diagnosed claimant's condition.  The physician opined:
 
            
 
                 My consulting diagnosis is organic affective 
 
                 syndrome, organic mental disorder with organic 
 
                 brain syndrome, episodic rage reactions which are 
 
                 temporal-lobe like in nature related to the 
 
                 solvent exposure.
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 Dr. Kauffman's assessment - headache with the 
 
                 increased irritability "quite possibly secondary 
 
                 to a solvent exposure."  He also is concerned 
 
                 about a possible depression - maybe secondary to 
 
                 solvents also.
 
            
 
                 Dr. Varner testified by way of deposition on two 
 
            separate occasions.  In his first deposition, Dr. Varner 
 
            testified that he opined to a reasonable degree of medical 
 
            certainty that claimant had suffered an injury as a result 
 
            of exposure to solvents.  Dr. Varner testified he believed 
 
            the injury would be permanent in nature.  The physician 
 
            testified that xylene can result in irreversible damage to 
 
            the body.  Dr. Varner cited the following textbook as a 
 
            reference detailing the long term effects of xylene:
 
            
 
                               i.  general comments
 
            
 
                   Aromatic hydrocarbons make up a large class of 
 
                 substances with wide uses in industry and in 
 
                 commercial products.  They are used as fuels, 
 
                 paint and lacquer solvents, in adhesives, polymer 
 
                 solvents and additives, and cleaners, as raw 
 
                 materials for the synthesis of other chemicals and 
 
                 medicines, and in many other uses requiring 
 
                 volatile solvents or carriers.  They also result 
 
                 from incomplete combustion of carbonaceous 
 
                 materials.
 
            
 
                   As a group, their high lipid solubility results 
 
                 in accumulation in lipid rich tissues, 
 
                 particularly the brain, spinal cord, and 
 
                 peripheral nerves.  Accumulation of these 
 
                 materials in the nervous system may lead to 
 
                 functional impairment either acutely or 
 
                 chronically.  Impairment may be seen as 
 
                 nonspecific complaints of nausea, vomiting, 
 
                 weakness, tiredness, vertigo, or in more severe 
 
                 cases inebriation or unconsciousness.  With some 
 
                 materials, such as benzene, seizures may occur.
 
            
 
                   Recent studies on workers chronically exposed to 
 
                 mixtures of aliphatic and aromatic substances have 
 
                 found psychological and neurophysiological 
 
                 differences between solvent exposed and nonexposed 
 
                 workers, particularly painters, suggesting that 
 
                 aromatic hydrocarbons may have subtle long-lasting 
 
                 neurologic effects.  For the most part, with the 
 
                 possible exception of the materials covered in 
 
                 this chapter, specific aromatic hydrocarbons 
 
                 causing long-lasting neural effects have not been 
 
                 identified.
 
            
 
            Neurotoxicity of Industrial and Commercial Chemicals, Vol. l 
 
            John L. O'Donoghue p. 128.
 
            
 
                 The record establishes that claimant was also examined 
 
            in the Department of Preventive Medicine Environmental 
 
            Health and Occupational Medicine at the University of Iowa 
 
            by Laurence Julius Fuortes, M.D.  Dr. Fuortes testified by 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            deposition.  He testified to the following relative to 
 
            claimant's condition:
 
            
 
                 Q.  Have you made any attempt to make a diagnosis            
 
                 of their condition?  I'm speaking of Mr. Carle          
 
                 first.  Have you made any attempt to diagnose           
 
                 his condition?
 
            
 
                 A.  Yes.
 
            
 
                 Q.  What is your diagnosis?
 
            
 
                 A.  A history of acute intermittent solvent intox-            
 
                 ication without evidence of chronic solvent-                 
 
                 induced neuropathies or other neurologic sequela.       
 
                 And two, possible episodic dyscontrol syndrome.
 
            
 
                 Q.  Have you reached any opinions or conclusions 
 
                 as              to the cause of problems that Mr. 
 
                 Carle has?
 
            
 
                 A.  Opinions.
 
            
 
                 Q.  I'm asking to give your opinion, if you can, 
 
                 to         a reasonable medical certainty based 
 
                 upon your            education and your experience 
 
                 and on your exami-         nation of the patient 
 
                 and his medical records.
 
            
 
                 A.  Well, my opinion is that this man has not suf-            
 
                 fered a measurable loss or a documentable loss               
 
                 of neurologic function as a result of his oc-            
 
                 cupational exposures, per se.  But he has severe        
 
                 symptoms.  And my feeling is that these symptoms        
 
                 may well be situational, that he has a number of 
 
                 --    he has a number of stressors which may have 
 
                 con-        tributed to this presentation.
 
            
 
                        In other words, the toxin-induced 
 
                 neurologic           dysfunction, organic brain 
 
                 syndrome, fronto-               temporal lobe 
 
                 epilepsy, peripheral neuropathy,         those 
 
                 diagnoses which were given to him and he           
 
                 was told which are a result of your solvent             
 
                 exposure, I can't corroborate and I have some           
 
                 difficulties with those diagnoses.
 
            
 
                 Q.  Do you have an opinion based upon reasonable 
 
                 --
 
            
 
                 A.  But --
 
            
 
                 Q.  Go on.
 
            
 
                 A.  -- the syndrome which he presents with of 
 
                 [sic]           mood disorders, difficulty with 
 
                 mentation, that           syndrome could well be 
 
                 mimicked by an anxiety         disorder, an 
 
                 adjustment disorder, an adjustment            
 
                 disorder being a catch phrase for ones injuries,        
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 long-time difficult [sic] subsequently.  They 
 
                 could      be the results of a combination of an 
 
                 intrinsic            personality characteristic of 
 
                 this individual.
 
            
 
                     I believe that if one could look into his 
 
                 prior           record, one might find that he had 
 
                 problems with        emotional control in the 
 
                 past.  That's certainly        a hypothesis, that 
 
                 the individual has not under-        gone a 
 
                 dramatic change in personality.  And that's   one 
 
                 hypothesis.  And another one that a lot of the     
 
                 syndrome may be the result of numerous interact-         
 
                 ing stressors; an occupational stress syndrome          
 
                 possibly resultant from a fear about the results             
 
                 of the exposures which maybe somewhat iatrogenic,            
 
                 may be somewhat a manifestation of the fear one         
 
                 has subsequent to seeing a physician and being 
 
                 told       you have permanent serious brain 
 
                 injury.  Those            sorts of situations 
 
                 might have contributed to the            medical 
 
                 syndrome that I observed.
 
            
 
                 Q.  All right.  And those as you presented, 
 
                 Doctor,         you presented those in a 
 
                 hypothetical.  I guess         what I would like 
 
                 -- I don't guess.  What I would          like you 
 
                 to say is do you have an opinion that the     
 
                 diagnosis which has been given to Mr. Carle by his      
 
                 treating doctors of peripheral neuropathy, frontal      
 
                 lobe syndrome, is, in fact -- do you have an                 
 
                 opinion to a reasonable degree of medical 
 
                 certainty       that that diagnosis is incorrect?
 
            
 
                 A.  The diagnosis of solvent-induced neurotoxicity 
 
                 is         suspect, to my mind.
 
            
 
                 Q.  Do you have an opinion based upon reasonable             
 
                 medical certainty that it is incorrect?
 
            
 
                 A.  Solvent-induced neurotoxicity, I'll say that, 
 
                 that       within my field of experience and 
 
                 research of the           literature, it appears 
 
                 to me that this man's               medical 
 
                 syndrome isn't entirely the result of the          
 
                 long-term neurologic sequelae of exposure to                 
 
                 solvents.
 
            
 
                 Q.  I'm not asking you entirely.  Was the exposure 
 
                 to         not only solvents but to any type of 
 
                 toxic material       which may be present in the 
 
                 workplace a cause or a    contributor to his 
 
                 present or past problems?
 
            
 
                 A.  If we can go by it -- this in a different 
 
                 manner.    I don't know if there is liturature 
 
                 [sic] which          suggests -- 
 
            
 
                 Q.  Sir --
 
            
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 A.  I don't know if there is literature which 
 
                 suggests   that frontotemporal lobe epilepsy 
 
                 results from         solvent exposures.  I don't 
 
                 believe there is.
 
            
 
                 Q.  All right.  Are you saying then that you 
 
                 disagree        that that is a proper diagnosis in 
 
                 this case?
 
            
 
                 A.  That's a different issue.
 
            
 
                 Q.  That's what I'm asking you.  I'm asking you 
 
                 does            any exposure, whether it be to 
 
                 solvents or any           material at the Riley 
 
                 Brothers Paints, is it a            cause or a 
 
                 contributor to any of the diagnosed           
 
                 symptoms -- or excuse me, the diagnoses of his          
 
                 treating doctors?
 
            
 
                           MR. STONEBRAKER:  Excuse me.  And don't            
 
                 answer until I make my objection.  Counsel, I           
 
                 appreciate your difficulty with this subject                 
 
                 matter.  But that is a multiple question and                 
 
                 involves too many things.
 
            
 
                           THE WITNESS:  You've asked several 
 
                 things.         And as I said, I can go by these 
 
                 item by item.
 
            
 
                         The diagnosis of frontotemporal lobe 
 
     
 
            
 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
                 epilepsy        is suspect, firstly.
 
            
 
                 Q.  I'm not interested if it's suspect.  Do you              
 
                 disagree with it?
 
            
 
                 A.  I can't corroborate it.
 
            
 
                 Q.  I don't care whether you can corroborate.  Do 
 
                 you        disagree with it?
 
            
 
                 A.  I don't agree strongly with it and I did not 
 
                 make            that diagnosis myself.  I have 
 
                 difficulty accepting      the diagnosis.  I would 
 
                 suggest if you want to         pursue that 
 
                 question that you ask for another        
 
                 neurologist's opinion.  But my opinion is that I        
 
                 can't corroborate that diagnosis.  If I can't           
 
                 corroborate it, what can I tell you?
 
            
 
                         That the likelihood to my mind is that he            
 
                 does not have frontotemporal lobe epilepsy, that        
 
                 that would be my interpretation of the data.            
 
                 But there's some more workup that could be done.             
 
                 The man could have ambulatory EEGs, certainly           
 
                 three negative EEGs don't rule out the diagnosis             
 
                 of epilepsy.  But there are a lot of other              
 
                 explanations for people experiencing smells, an         
 
                 epilepsy.
 
            
 
                         I think that there is some difficulty with           
 
                 medical semantics and I don't want to get overly        
 
                 bogged down with the term seizure, epilepsy,                 
 
                 frontotemporal syndromes as you have used and say            
 
                 that if we were to rely more heavily on the crux             
 
                 of the matter, was the injury caused by the             
 
                 exposure which is what I was trying to get at,          
 
                 I'd have to say that I don't see evidence for this      
 
                 man having suffered a longstanding [sic] 
 
                 neurologic      illness from a solvent exposure.
 
            
 
                 Q.  Do you see of any problems with solvent or any           
 
                 exposure?
 
            
 
                 A.  He definitely had recurrent acute 
 
                 intoxication.             Okay.  That in and of 
 
                 itself might have been              tremendously 
 
                 anxiety provoking.
 
            
 
                         Two example [sic] I gave Mr. Stonebraker 
 
                 is              assume you go into work and you 
 
                 don't expect              this to be anything but 
 
                 an ordinary work day and            somehow 
 
                 through the day you start finding your        
 
                 tongue getting thick, your visual perception                 
 
                 altered, you feel as if you're going to stagger         
 
                 and fall, you get out of the workplace and breathe      
 
                 some fresh air and you feel better.  You know,          
 
                 what  was that that happened to me?  You go back             
 
                 in the workplace and that scenario repeats itself.      
 
                 That in and of itself without being forewarned 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
                 that       the solvents you're dealing with could 
 
                 cause this           syndrome could be incredibly 
 
                 anxiety provoking.
 
            
 
                           In addition to that, being diagnosed as            
 
                 having a permanent brain injury might be tremen-         
 
                 dously anxiety provoking
 
            
 
                 Q.  With regard to the recurrent -- Let me just do 
 
                 one   thing before I ask.  Could I make a phone 
 
                 call?           I'll just take a second.
 
            
 
                                (A discussion was held off the 
 
                 record.)
 
            
 
                 Q.  Doctor, based upon a short conversation off 
 
                 the        record, is it a fact that in your 
 
                 opinion, your        diagnosis of Mr. Carle is not 
 
                 mutually exclusive             of the diagnosis 
 
                 that his treating doctors have           made.
 
            
 
                 A.  That's correct.
 
            
 
                 Q.  With regard to --
 
            
 
                 A.  Excuse me.  The diagnosis of frontotemporal 
 
                 lobe            epilepsy, that's correct.
 
            
 
                 Q.  With regard to frontotemporal lobe epilepsy or           
 
                 frontal lobe or partial complex seizures, are 
 
                 those      terms used interchangeably?
 
            
 
                 A.  I believe the most appropriate term is the 
 
                 partial    complex seizure, yes.
 
            
 
                 Q.  All right.  In diagnosing that condition, what 
 
                 are   the symptoms that one might look for?
 
            
 
                 A.  Absence seizures, staring, spells of staring, 
 
                 these      may be triggered or associated with 
 
                 certain stimuli      or auras.  And such an aura 
 
                 or anticipatory event          might be the 
 
                 sensation of a particular smell.  And    these 
 
                 seizures may be predominantly sensory.  Some-       
 
                 body might have auditory hallucinations, olfactory      
 
                 hallucinations and this be a manifestation of a         
 
                 seizure.  Some people may have motor phenomenon,        
 
                 they may have twitching of the face, for example.
 
            
 
                 Q.  Is there an article which you believe gives an           
 
                 appropriate listing of the symptoms of partial          
 
                 complex seizures?
 
            
 
                 A.  A standard neurology text.
 
            
 
                 Q.  You have no preferences of one over the other?
 
            
 
                 A.  I can try to take them up with a recent review           
 
                 article on the topic and share it with you.
 
            
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
                 Q.  With regard to the EEG that was done at the              
 
                 University, do you know whether or not there            
 
                 was any medication -- or that Mr. Carle was                  
 
                 on any medication at the time that was                  
 
                 administered?
 
            
 
                 A.  I believe he was on Tegretol at that time.
 
            
 
                 Q.  And Tegretol is an anticonvulsant; is it not?
 
            
 
                 A.  Yes.
 
            
 
                 Q.  And it's used to control seizure activity; is 
 
                 it         not?
 
            
 
                 A.  Among other things.
 
            
 
                 Q.  And would that, if in fact Mr. Carle was on              
 
                 therapeutic dosage of Tegretol at the time of           
 
                 the EEG, would that affect the readings?
 
            
 
                 A.  It could.
 
            
 
                 Q.  Also, we discussed the recurrent chemical                
 
                 intoxication which Mr. Carle received.  Do              
 
                 you have an opinion as to whether or not that           
 
                 was, in fact, a contributor, a cause or a               
 
                 contributing factor to the psychological prob-           
 
                 lems that you interpreted Mr. Carle as suf-              
 
                 fering from?
 
            
 
                 A.  That is a very likely scenario.  I think that            
 
                 that would be a stressful event which might have        
 
                 affected his subsequent ability to work, his                 
 
                 subsequent development of medical complaints.
 
            
 
            (Exhibit 36, page 40, line 3 to page 48, line 21)
 
            
 
                 Dr. Fuortes also conducted an on site inspection of 
 
            defendant-employer's plant.  As a result of that inspection, 
 
            he issued a report to defendants.  A portion of the report 
 
            recommended:
 
            
 
                    A brief review of the recommendations for 
 
                 engineering and work task modifications resultant 
 
                 from the clinical evaluations and industrial 
 
                 hygiene walk-through performed with Dr. Berry 
 
                 include:  1) Use of protective clothing, 
 
                 specifically elbow length gloves and full length 
 
                 aprons, to minimize dermal contact with solvents 
 
                 such as xylene.  2) Consideration ought to be 
 
                 given to other protective clothing such as goggles 
 
                 and safety shoes.  3) Inhalational exposures to 
 
                 solvents ought to be minimized by implementation 
 
                 of appropriately designed local exhaust 
 
                 ventilation in areas where solvents are stored and 
 
                 used.  4) Consideration ought to be given to use 
 
                 of an automated, appropriately exhausted, parts 
 
                 degreaser, thereby precluding most dermal contact 
 
                 to solvents.  5) The dip tanks used for degreasing 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
                 grills and air drying method described present 
 
                 hazard for employees regarding resultant inhala
 
                 tional exposure to solvents.  Redesign of this 
 
                 degreasing operation and optimal exhaust 
 
                 ventilation (with exhausted air always being drawn 
 
                 away from employees breathing zones), are in 
 
                 order.  6) Documentation of capture velocity and 
 
                 proper maintenance protocol for the water rinse 
 
                 paint booths ought to be pursued as per the 
 
                 recommendations of the manufacturer, as was recom
 
                 mended by prior industrial hygiene consultation.  
 
                 7) Hand washing with solvents should not be 
 
                 permitted in the work place [sic].  Appropriate 
 
                 substitutes would include industrial hand 
 
                 cleaners, soap and water, and potentially large 
 
                 molecular weight hydrocarbons such as vegetable 
 
                 oils or vaseline.  It was notable that three of 
 
                 the thirteen employees interviewed at the time of 
 
                 our walk-through demonstrated some degree of 
 
                 dermatosis secondary to hand washing with 
 
                 solvents, manifested by mild defatting and 
 
                 fissuring of the skin.  8) The procedure of 
 
                 standing and working on metal platforms above the 
 
                 rinse tanks presents another safety hazard which 
 
                 may be obviated by simple redesign of the work 
 
                 tasks and procedures.  9) The potential for a 
 
                 conflagration must certainly be considered in 
 
                 measures taken to prevent and control that 
 
                 possibility.  Consultation with the local fire 
 
                 department may be quite reasonable.  In the 
 
                 interim scrupulous hygiene, appropriate exhaust 
 
                 ventilation to capture volatile and solvent 
 
                 vapors, must be considered.  Examination of all 
 
                 potential for ignition should be undertaken 
 
                 including sources of electrical sparks, friction, 
 
                 and other thermal energies.  Strong consideration 
 
                 ought to be given to the maintenance of a 
 
                 nonsmoking work environment.  In addition to the 
 
                 water sprinkling system, consideration ought to be 
 
                 given to an appropriate chemical fire prevention 
 
                 system.  10)  In addition to the two individuals 
 
                 examined in our clinic, four of the thirteen indi
 
                 viduals examined and interviewed on the day of our 
 
                 walk-through describe recurrent solvent 
 
                 intoxication states most commonly noting 
 
                 "dipping," and "grills".  Although appropriate 
 
                 solvent vapor containment and exhaust is 
 
                 necessary, consideration ought to be given to use 
 
                 of respiratory protection.  For those people who 
 
                 can tolerate same, negative pressure canister 
 
                 masks with appropriate canisters for solvent 
 
                 vapors may be satisfactory.  For individuals with 
 
                 obstructive pulmonary physiology (asthmatics, 
 
                 bronchitics, or emphysimatics), negative pressure 
 
                 respirators may be poorly tolerated, and external 
 
                 air supplied respirators may be most beneficial.  
 
                 The problems with external air supplied 
 
                 respirators are that supplied air must be appro
 
                 priately conditioned, as cold, dry air may well 
 
                 trigger bronchospastic physiology.  In addition, 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
                 such a system must be appropriately designed and 
 
                 maintained to preclude introduction of any 
 
                 respiratory irritants or toxicants into the 
 
                 system.
 
            
 
                    Regarding the concern of long term health 
 
                 effects subsequent to xylene exposure, such 
 
                 concern is understandable given the history which 
 
                 suggests exposure sufficient to cause recurrent 
 
                 intoxicated states.  My pragmatic viewpoint 
 
                 regarding these concerns is that they be addressed 
 
                 by whatever means feasible to minimize all future 
 
                 contact with said solvents.  As there is current 
 
                 interest and some controversy regarding long 
 
                 standing health effects of such exposures, the 
 
                 request of a health hazard evaluation seems 
 
                 totally appropriate.  Again, pragmatically such 
 
                 issues may well be best addressed on an individual 
 
                 clinical basis....As stated in this document, "the 
 
                 major problem of xylene toxicity concerns it 
 
                 narcotic effects on workers, causing symptoms and 
 
                 signs such as muscular weakness, incoordination, 
 
                 and mental confusion which pose risk to both the 
 
                 worker and others."  The blood samples obtained by 
 
                 outside physicians on the two individuals 
 
                 evaluated at the University of Iowa, and those who 
 
                 obtained in the work place [sic] on the bulk of 
 
                 employees at Riley Brothers were reviewed.  These 
 
                 blood levels seem to be all of the order of 
 
                 magnitude expected given the degree of dermal and 
 
                 inhalational contact observed and reported.  Such 
 
                 levels do not either surprise me nor suggest to me 
 
                 the presence of any permanent injury....
 
            
 
                 The evidence presented also demonstrates claimant 
 
            received extensive psychological testing, treatment and 
 
            evaluation.  Frank S. Gersh, Ph.D., a clinical psychologist, 
 
            evaluated claimant in 1986.  Dr. Gersh testified by 
 
            deposition.  He testified he took a history from claimant 
 
            and tested him.  In his report of August 29, 1986, Dr. Gersh 
 
            wrote:
 
            
 
                 Impression:  1) Organic Brain Syndrome with  
 
                 signif-icant impairment of visual memory, left 
 
                 hand manual dexterity, sustained concentration and 
 
                 mental pro-cessing speed.  2) Organic affective 
 
                 Disorder.  3) Marijuana abuse.
 
            
 
                 The exposure to Xylene is suspicious, especially 
 
                 given the high blood levels of various solvents.
 
            
 
                 During his deposition, Dr. Gersh testified he did not 
 
            form an opinion whether the organic brain syndrome described 
 
            above was a permanent condition.  Dr. Gersh opined claimant 
 
            suffered brain damage and the damage was due to claimant's 
 
            solvent exposure at work.  Dr. Gersh, however, admitted he 
 
            had not done laboratory research on the toxicological 
 
            properties of any chemical substances.
 
            
 
                 Claimant was also evaluated by Daniel Tranel, Ph.D., a 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            licensed psychologist.  Dr. Tranel was retained by 
 
            defendants.  In his report of June 16, 1989, Dr. Tranel 
 
            writes:
 
            
 
                    The conclusion that Mr. Carle does not have 
 
                 brain injury related to solvent exposure is 
 
                 supported by the data from the neuropsychological 
 
                 examination conducted by Dr. K. Welsh, at the 
 
                 University of Iowa Hospitals and Clinics in 
 
                 January, 1987.  According to Dr. Welsh, the 
 
                 neuropsychological examination did not indicate 
 
                 that Mr. Carle suffered from major brain 
 
                 dysfunction.  I have reviewed Dr. Welsh's data, 
 
                 and I concur with her conclusion.
 
            
 
                    I conducted a comprehensive neuropsychological 
 
                 and psychological examination of Mr. Carle on June 
 
                 4, 1989.  The results of this evaluation are as 
 
                 follows:  (1) Mr. Carle has low average 
 
                 intellectual abilities, consistent with 
 
                 expectations based on his educational and 
 
                 occupational background.  (2) Acquisition, 
 
                 retention, retrieval, and recall of verbal and 
 
                 nonverbal material are normal.  (3) Speech and 
 
                 lingusitic [sic] functioning are normal.  (4) 
 
                 Visual perception and visuoconstructive abilities 
 
                 are normal.  (5) Executive control functions such 
 
                 as judgment, planning, abstract thinking, and 
 
                 decision-making, are normal. (6) Orientation and 
 
                 attention are normal.  (7) Academic achievement 
 
                 skills are consistent with educational background.  
 
                 (8) Mr. Carle has significant depressive 
 
                 symptomatology, including demoralization, low 
 
                 self-confidence, and low self-esteem.  This is 
 
                 most likely due to current social/personal 
 
                 stressors.
 
            
 
                    In summary, I do not find evidence that Mr. 
 
                 Carle has sustained any permanent injury to the 
 
                 central nervous system.
 
            
 
                 Finally, the record demonstrates that defendants also 
 
            retained a toxicologist, Raymond D. Harbison, Ph.D.  Dr. 
 
            Harbison was deposed on two occasions.  He also drafted a 
 
            report for defendants, dated May 17, 1989.  In his May 
 
            report, Dr. Harbison wrote the following summary relative to 
 
            claimant's condition:
 
            
 
                                       Conclusions
 
            
 
                 In summary, the following points refute Mr. 
 
                 Carle's claim of xylene-induced central and 
 
                 peripheral nervous system injury.
 
            
 
                 There is no medical consensus as to the nature of 
 
                 Mr. Carle's alleged neurobehavioral impairment.  
 
                 Overall, objective medical evidence of 
 
                 neurological injury is absent.
 
            
 
                 Xylene has never been shown to produce a 
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
                 solvent-induced organic brain syndrome.  Even if 
 
                 xylene was associated with organic brain syndrome, 
 
                 Mr. Carle's psychological presentation does not 
 
                 fit the pattern reported to occur in individuals 
 
                 with this affliction.
 
            
 
                 His exposure was limited and demonstrated by 
 
                 industrial hygiene surveys to be within 
 
                 occupational guidelines that produce no harm.  
 
                 Solvent induced brain damage is associated with 
 
                 long-term daily exposure to solvent levels in 
 
                 excess of safety guidelines recommended by the 
 
                 Occupational Safety and Health Administration.
 
            
 
                 Mr. Carle's pre-existing neurobehavorial problems 
 
                 and his drug abuse obscure all attempts at 
 
                 defining the cause of his problem.
 
            
 
                 The consideration of all these factors has led me 
 
                 to believe that there is no basis for Mr. Carle's 
 
                 claim of xylene-induced neurological injury.
 
            
 
                 In his deposition, Dr. Harbison opined to a reasonable 
 
            degree of scientific certainty that claimant did not sustain 
 
            any medical, psychiatric, or psychological problems because 
 
            of his involvement in the workplace at defendant-employer's 
 
            establishment.  Dr. Harbison also testified to the 
 
            following:
 
            
 
                 Q.  Let me ask you about one of them in 
 
                 particularly [sic].  You mentioned in the report 
 
                 that Mr. Carle's ordered ailment [sic] are not 
 
                 consistent with the solvent of xylene?
 
            
 
                 A.  That's correct.
 
            
 
                 Q.  All right.  Is that a basis for your opinion?
 
            
 
                 A.  That is a basis for my opinion, yes.
 
            
 
                 Q.  Describe in a little greater detail what your 
 
                 basis is for that statement?
 
            
 
                 A.  Sure.  Xylene is a material that has the 
 
                 pharmacological properties of being a central 
 
                 nervous system depressant.  That is, those are the 
 
                 effects that it produces when it gets into the 
 
                 body.  The effects of xylene are reversible.  That 
 
                 is, it can produce drowsiness.  It can even 
 
                 produce unconsciousness, but in the absence of 
 
                 prolonged unconsciousness or hypoxia or anoxia, 
 
                 the effects of xylene are completely reversible.  
 
                 It's like many of the other aromatic solvents in 
 
                 that it has an anesthetic property.  That is, it's 
 
                 able to cause a depression of the central nervous 
 
                 system which is a pharmacological effect that is 
 
                 completely reversible in its actions.
 
            
 
                 Q.  Would you describe for me the terms you used 
 
                 of hypoxia or anoxia?
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
            
 
                 A.  Hypoxia is a deficiency of oxygen and anoxia 
 
                 is an absence of oxygen.  If one were exposed to a 
 
                 sufficient level of xylene, xylene can cause 
 
                 unconsciousness.  It can render one unconscious.  
 
                 And when one is rendered unconscious, respiration 
 
                 is shallow or depressed, and as a result of that, 
 
                 insufficient oxygen gets into the body.  That can 
 
                 lead - if it is for any prolonged period of time - 
 
                 can lead to nervous system damage, but in the 
 
                 absence of that unconsciousness and hypoxia, 
 
                 xylene has pharmacological effects which are 
 
                 completely reversible.
 
            
 
            (Ex. 37, p. 13-14 to l. ll)
 
            
 
                 Q.  Dr. Harbison, as part of your analysis in this 
 
            case, do you have a conclusion to examine what would be 
 
            known of exposure, insult, and duration of exposure of Mr. 
 
            Carle in regards to any claim of the central or peripheral 
 
            nervous system damage?
 
            
 
                 A.  Yes, I've evaluated that.
 
            
 
                 Q.  Describe that, please?
 
            
 
                 A.  Well, the exposure of Mr. Carle may have been 
 
                 to levels that were well below the allowable 
 
                 levels; that is, the safe levels that are allowed 
 
                 in the workplace, and that exposure was for a 
 
                 relatively short period of time and it was also an 
 
                 intermittent exposure.  That is, he worked for a 
 
                 period of time and then didn't work for a period 
 
                 of time, so the exposure was intermittent, the 
 
                 exposure was to low levels well below those 
 
                 allowed in the workplace to be safe, and that was 
 
                 my evaluation of the exposure of Mr. Carle.
 
            
 
            (Ex. 37, p. 14, l. 25 to p. 15, l. 14)
 
            
 
                 Dr. Harbison additionally related he was not familiar 
 
            with a solvent induced organic brain syndrome.  He admitted 
 
            he had never examined claimant but only reviewed medical 
 
            records, depositions, the blood analysis done by 
 
            Envior-Health Laboratories, and industrial hygiene reports.  
 
            Dr. Harbison testified he did not believe claimant was 
 
            exposed to xylene in excess of OSHA standards.
 
            
 
                 John W. Fichel, plant manager, testified at the 
 
            hearing.  He testified that employees are "slightly 
 
            intoxicated" and nauseated if they inhale too much xylene.  
 
            Mr. Fichel testified claimant never complained to him about 
 
            the effects of xylene.
 
            
 
                 James S. Jenessen, president of defendant-employer, 
 
            testified at the hearing.  He reported an employee can 
 
            experience light headedness and dizziness if he is exposed 
 
            to a xylene solvent.  The light headedness can happen 
 
            readily but it is not a common occurrence.  Mr. Jenessen 
 
            stated there is a policy for breaks and opportunities for 
 

 
            
 
            Page  18
 
            
 
            
 
            
 
            
 
            fresh air.  Mr. Jenessen denied he had received complaints 
 
            from claimant relative to solvent exposure.
 
            
 
                 Other individuals testified at the hearing.  Their 
 
            testimony did not bear upon the decision of the undersigned.
 
            
 
                                  applicable law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on June 18, 1986, 
 
            which arose out of and in the course of his employment.  
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); 
 
            Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 

 
            
 
            Page  19
 
            
 
            
 
            
 
            
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63 (1955).
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 
 
            128 (1967). 
 
            
 
                 The supreme court of Iowa in Almquist v. Shenandoah 
 
            Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) 
 
            discussed the definition of personal injury in workers' 
 
            compensation cases as follows:
 
            
 
                 While a personal injury does not include an occupa
 
                 tional disease under the Workmen's Compensation 
 
                 Act, yet an injury to the health may be a personal 
 
                 injury.  [Citations omitted.]  Likewise a personal 
 
                 injury includes a disease resulting from an 
 
                 injury....The result of changes in the human body 
 
                 incident to the general processes of nature do not 
 
                 amount to a personal injury.  This must follow, 
 
                 even though such natural change may come about 
 
                 because the life has been devoted to labor and 
 
                 hard work.  Such result of those natural changes 
 
                 does not constitute a personal injury even though 
 
                 the same brings about impairment of health or the 
 
                 total or partial incapacity of the functions of 
 
                 the human body. 
 
            
 
                    ....
 
            
 
                 
 
                 A personal injury, contemplated by the Workmen's 
 
                 Compensation Law, obviously means an injury to the 
 
                 body, the impairment of health, or a disease, not 
 
                 excluded by the act, which comes about, not through the 
 
                 natural building up and tearing down of the human body, 
 
                 but because of a traumatic or other hurt or damage to 
 
                 the health or body of an employee.  [Citations 
 
                 omitted.]  The injury to the human body here 
 
                 contemplated must be something, whether an accident or 
 
                 not, that acts extraneously to the natural processes of 
 
                 nature, and thereby impairs the health, overcomes, 
 
                 injures, interrupts, or destroys some function of the 
 
                 body, or otherwise damages or injures a part or all of 
 
                 the body.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of June 18, 
 
            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 
 

 
            
 
            Page  20
 
            
 
            
 
            
 
            
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
            N.W.2d 128 (1967).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 When an aggravation occurs in the performance of an 
 
            employer's work and a causal connection is established, 
 
            claimant may recover to the extent of the impairment.  
 
            Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 
 
            N.W.2d 591, 595 (1960).
 
            
 
                 The Iowa Supreme Court cites, apparently with approval, 
 
            the C.J.S. statement that the aggravation should be material 
 
            if it is to be compensable.  Yeager v. Firestone Tire & 
 
            Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. 
 
            Workmen's Compensation sec. 555(17)a.
 
            
 
                 Our supreme court has stated many times that a claimant 
 
            may recover for a work connected aggravation of a 
 
            preexisting condition.  Almquist, 218 Iowa 724, 254 N.W. 35 
 
            (1934).  See also Auxier v. Woodward State Hosp. Sch., 266 
 
            N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 
 
            N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 
 
            N.W.2d 704 (1965); Olson v. Goodyear Service Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 
 
            N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 
 
            (1960).
 
            
 
                 An employee is not entitled to recover for the results 
 
            of a preexisting injury or disease but can recover for an 
 
            aggravation thereof which resulted in the disability found 
 
            to exist.  Olson, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 
 
            Iowa 613, 106 N.W.2d 591 (1960).  See also Barz, 257 Iowa 
 

 
            
 
            Page  21
 
            
 
            
 
            
 
            
 
            508, 133 N.W.2d 704 (1965); Almquist, 218 Iowa 724, 254 N.W. 
 
            35 (1934).
 
            
 
                 If a claimant contends he has industrial disability he 
 
            has the burden of proving his injury results in an ailment 
 
            extending beyond the scheduled loss.  Kellogg v. Shute and 
 
            Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964).
 
            
 
                 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, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson, 255 Iowa 1112, 125 N.W.2d 251 (1963).  
 
            Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 
 
            (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985);  Christensen v. Hagen, Inc., 
 

 
            
 
            Page  22
 
            
 
            
 
            
 
            
 
            (Appeal Decision, March 26, l985).  For example, a defendant 
 
            employer's refusal to give any sort of work to a claimant 
 
            after he suffers his affliction may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).
 
            
 
                 Similarly, a claimant's inability to find other 
 
            suitable work after making bona fide efforts to find such 
 
            work may indicate that relief would be granted.  McSpadden, 
 
            388 N.W.2d 181 (Iowa 1980).
 
            
 
                                     analysis
 
            
 
                 Claimant has proven he sustained an injury which arose 
 
            out of and in the course of his employment.  Claimant 
 
            testified he worked with the solvent xylene in the workplace 
 
            for five to six hours per day.  Claimant reported the xylene 
 
            would get on his hands and feet.  The president of the 
 
            company testified he did not require his employees to wear 
 
            personal protective clothing or respirators.  However, he 
 
            did allow his employees to go outdoors and take a fresh air 
 
            break whenever the employees felt dizzy.
 
            
 
                 Claimant also testified he would become light headed 
 
            and dizzy after working with xylene.  A blood level analysis 
 
            was conducted of claimant's blood sample.  Xylene was found 
 
            in claimant's blood.  Claimant was exposed to xylene.  There 
 
            is no evidence, the xylene was from a source other than from 
 
            claimant's workplace.  Claimant's injury arose out of and in 
 
            the course of his employment.
 
            
 
                 The next issue to address is whether claimant's 
 
            condition is causally related to claimant's injury.  
 
            Claimant has proven by a preponderance of the evidence there 
 
            is the requisite causal connection.  Dr. Kauffman 
 
            specifically related claimant's condition of peripheral 
 
            neuropathy and a change in mentation to solvent exposure in 
 
            the workplace.  Additionally, Dr. Kauffman opined claimant's 
 
            behavior problems were exacerbated by claimant's exposure to 
 
            solvents.  Likewise, Dr. Kauffman determined claimant's 
 
            headaches were consistent with solvent exposure.
 
            
 
                 Dr. Fuortes also causally related a portion of 
 
            claimant's symptoms to solvent exposure in the workplace.  
 
            (Ex. 36, pp. 40-41)  The physician testified:
 
            
 
                 ...I'd have to say that I don't see evidence for 
 
                 this man having suffered a longstanding [sic] 
 
                 neurologic illness from a solvent exposure.
 
            
 
                 Q.  Do you see of any problems with solvent or any 
 
                 exposure?
 
            
 
                 A.  He definitely had recurrent acute 
 
                 intoxication.  Okay.  That in and of itself might 
 
                 have been tremendously anxiety provoking.
 
            
 
            (Ex. 36, p. 45, ll. 16-20)
 
            
 
                 Likewise, Dr. Varner causally related claimant's 
 

 
            
 
            Page  23
 
            
 
            
 
            
 
            
 
            condition to solvent exposure in the workplace.  (Exhibit 
 
            34, p. 101, ll. 18-25)
 
            
 
                 The third issue to address is whether claimant is 
 
            temporarily or permanently disabled.  Claimant has not 
 
            proven by a preponderance of the evidence that he is 
 
            permanently disabled because of his exposure to xylene in 
 
            the workplace.  Claimant has proven he has been temporarily 
 
            disabled.  Claimant has failed to prove that exposure to 
 
            xylene results in permanent irreversible damage to the brain 
 
            and/or the nervous system.
 
            
 
                 Great weight is assigned to the testimony of Dr. 
 
            Fuortes.  He is board certified in internal medicine and he 
 
            has experience in the areas of occupational medicine and 
 
            environmental health.  At the time of his involvement in 
 
            this case, Dr. Fuortes was acting in the capacity of a 
 
            public health service officer.  He was not hired as a 
 
            consultant for one party or the other.  He was acting as an 
 
            objective public official performing his regularly assigned 
 
            duties.
 
            
 
                 Dr. Fuortes diagnosed claimant as having:
 
            
 
                 A.  A history of acute intermittent solvent 
 
                 intoxication without evidence of chronic 
 
                 solvent-induced neuropathies or other neurologic 
 
                 sequela.  And two, possible episodic dyscontrol 
 
                 syndrome.
 
            
 
            (Ex. 36, p. 40, ll. 9-13)
 
            
 
                      In other words, the toxin-induced neurologic 
 
                 dysfunction, organic brain syndrome, 
 
                 frontotemporal lobe epilepsy, peripheral 
 
                 neuropathy, those diagnoses which were given to 
 
                 him and he was told which are a result of your 
 
                 solvent exposure, I can't corroborate and I have 
 
                 some difficulties with those diagnoses.
 
            
 
                     ...
 
            
 
                 A. -- the syndrome which he presents with of mood 
 
                 disorders, difficulty with mentation, that 
 
                 syndrome could well be mimicked by an anxiety 
 
                 disorder, an adjustment disorder, an adjustment 
 
                 disorder being a catch phrase for ones injuries, 
 
                 long-time difficulty subsequently.  They could be 
 
                 the results of a combination of an intrinsic 
 
                 personality characteristic of this individual.
 
            
 
            (Ex. 36, p. 41, ll. 4-10, 14-21)
 
            
 
                 Dr. Fuortes opined claimant did not sustain any 
 
            permanent impairment because of his exposure to xylene.  He 
 
            was rendering an objective unbiased opinion in his official 
 
            capacity.
 
            
 
                 Dr. Harbison, although not a physician, is a professor 
 
            of toxicology and pharmacology.  He testified to a 
 

 
            
 
            Page  24
 
            
 
            
 
            
 
            
 
            reasonable degree of scientific certainty that claimant's 
 
            complaints were not the result of exposure to xylene in the 
 
            workplace.  Additionally, Dr. Harbison stated the following 
 
            relative to xylene exposure and its effects:
 
            
 
                 Q.  Let me ask you about one of them in 
 
                 particularly [sic].  You mentioned in the report 
 
                 that Mr. Carle's ordered ailment [sic] are not 
 
                 consistent with the solvent of xylene?
 
            
 
                 A.  That's correct.
 
            
 
                 Q.  All right.  Is that a basis for your opinion?
 
            
 
                 A.  That is a basis for my opinion, yes.
 
            
 
                 Q.  Describe in a little greater detail what your 
 
                 basis is for that statement?
 
            
 
                 A.  Sure.  Xylene is a material that has the 
 
                 pharmacological properties of being a central 
 
                 nervous system depressant.  That is, those are the 
 
                 effects that it produces when it gets into the 
 
                 body.  The effects of xylene are reversible.  That 
 
                 is, it can produce drowsiness.  It can even 
 
                 produce unconsciousness, but in the absence of 
 
                 prolonged unconsciousness or hypoxia or anoxia, 
 
                 the effects of xylene are completely reversible.  
 
                 It's like many of the other aromatic solvents in 
 
                 that it has an anesthetic property.  That is, it's 
 
                 able to cause a depression of the central nervous 
 
                 system which is a pharmacological effect that is 
 
                 completely reversible in its actions.
 
            
 
            (Ex. 37, p. 13)
 
            
 
                 Dr. Harbison also opined he had never heard of solvent 
 
            induced organic brain syndrome.  He further testified that 
 
            exposure to xylene did not cause a permanent irreversible 
 
            effect.
 
            
 
                 Dr. Harbison did opine that an employee who was exposed 
 
            to xylene needs to be concerned.  The basis for that 
 
            rationale was:
 
            
 
                 A.  My concern would be that they could injury 
 
                 [sic] themselves as a result of being intoxicated, 
 
                 that they could make bad decisions or 
 
                 inappropriate or decisions which could cause harm 
 
                 as a result of being intoxicated.  That they 
 
                 couldn't perform their work duties as a result of 
 
                 being intoxicated, and that if the level were high 
 
                 enough, perhaps they would even be rendered 
 
                 unconscious and fall down and hurt themselves.  So 
 
                 those would be my concerns.
 
            
 
                 Q.  If the workers never became unconscious to the 
 
                 point of falling down and not getting out of the 
 
                 solvent, do you think repeated intoxications can 
 
                 result in any permanent disability for a worker?
 

 
            
 
            Page  25
 
            
 
            
 
            
 
            
 
            
 
                 A.  I would not believe that intoxication would 
 
                 result in a permanent damage to the nervous system 
 
                 even if that intoxication were on a rather 
 
                 frequent basis.  Again, that's simply the 
 
                 pharmacological effects of these compounds.  These 
 
                 compounds are able to cause central nervous system 
 
                 depression, and the pharmacological effects are 
 
                 reversible and do not result in permanent damage 
 
                 to the nervous system.
 
            
 
            (Ex. 37, pp. 45-46)
 
            
 
                 However, the toxicologist did not believe claimant's 
 
            complaints were the result of repeated exposures to xylene.  
 
            Dr. Harbison opined there were confounding variables.
 
            
 
                 Dr. Varner, on the other hand, is a psychiatrist/lawyer 
 
            by education and training.  He rendered an opinion which was 
 
            outside his academic discipline.  He had not had any 
 
            formalized training in the fields of toxicology or 
 
            environmental health.  He provided an opinion which was 
 
            contrary to the above two recognized experts.  Consequently, 
 
            not as much weight has been accorded to the opinion of Dr. 
 
            Varner who was testifying outside of his recognized field.  
 
            See:  Hemm v. Van Buren School District, File No. 636036 
 
            Arbitration Decision filed October 25, 1984).
 
            
 
                 Therefore, in light of the foregoing, it is the 
 
            determination of the undersigned that claimant does not have 
 
            a permanent disability to the body as a whole.  The finding 
 
            is based upon:  1) the aforementioned considerations; 2) 
 
            based upon personal observation of claimant; 3) based upon 
 
            claimant's testimony; and 4) based on agency expertise (Iowa 
 
            Administrative Procedures Act 17A.14(s)).
 
            
 
                 Claimant, however, was temporarily totally disabled 
 
            under section 85.33(1).  The section reads:
 
            
 
                 1.  Except as provided in subsection 2 of this 
 
                 section, the employer shall pay to an employee for 
 
                 injury producing temporary total disability weekly 
 
                 compensation benefits, as provided in section 
 
                 85.32, until the employee has returned to work or 
 
                 is medically capable of returning to employment 
 
                 substantially similar to the employment in which 
 
                 the employee was engaged at the time of injury, 
 
                 whichever occurs first.
 
            
 
                 Dr. Fuortes opined claimant could return to work on 
 
            February 16, 1987, so long as he was only minimally exposed 
 
            to solvents.  Dr. Fuortes acknowledged there was a 
 
            difference of opinion between him and Dr. Kauffman.  Dr. 
 
            Kauffman, the primary physician, would not release claimant 
 
            to return to work at that time.  Dr. Kauffman opined 
 
            claimant needed to exhibit more behavioral control before 
 
            claimant was released to return to work.
 
            
 
                 As of February 3, 1989, Dr. Kauffman wrote in his 
 
            letter to claimant's attorney:
 

 
            
 
            Page  26
 
            
 
            
 
            
 
            
 
            
 
                 In actuality, the main disabilities that Mr. Carle 
 
                 sustains at this point are those related to the 
 
                 episodic dyscontrol syndrome as well as the severe 
 
                 headaches.  Because of these problems and also his 
 
                 previous episodes of neuropathy it is absolutely 
 
                 mandatory that he not be placed in any environment 
 
                 where he would have further exposure to 
 
                 significant amounts of solvents.  This would be 
 
                 solvents in even what would be considered safe 
 
                 amounts because of his increase susceptibility or 
 
                 lowered threshold created by his previous exposure 
 
                 and insult.  In addition, his ability to work is 
 
                 significantly limited and complicated by the fact 
 
                 that he has difficulty dealing with pressure or 
 
                 stress as well as difficulty in dealing with 
 
                 groups of people.  Any employment would have to be 
 
                 something that would be non stressful and require 
 
                 not much in the way of interpersonal relationships 
 
                 with other employees.
 
            
 
                 My prognosis is essentially given above.  I do not 
 
                 expect further improvement to occur in Mr. Carles 
 
                 [sic] condition.  My recommendations are that he 
 
                 continue to take the medication that he presently 
 
                 is on which includes Verapamil for his headaches, 
 
                 Tegretol for the episodic dyscontrol as well as 
 
                 vitamin supplements and some Advil.  In addition, 
 
                 he has been recently prescribed Zantac for 
 
                 treatment of indigestion symptoms.
 
            
 
                 Claimant testified in February of 1987 he worked 
 
            several hours per day at his mother-in-law's restaurant.  
 
            According to claimant he was not paid cash for his services.  
 
            The services were totally voluntary and he only worked for 
 
            several months.  It is the determination that this type of 
 
            work was not substantially similar to the employment with 
 
            which claimant had been employed.  Claimant was still 
 
            temporarily disabled during this period.
 
            
 
                 Claimant also testified he moved to Arizona in January 
 
            of 1988 where he began working for his uncle-in-law.  
 
            Claimant was hired to pump septic tanks.  By his own 
 
            admission, claimant worked for five or six months.  He was 
 
            paid $200 to $300 in cash per month.  Claimant moved back to 
 
            the Midwest around the time he began receiving his social 
 
            security disability checks.  This was apparently in June of 
 
            1988.
 
            
 
                 After reviewing all of the evidence, it appears while 
 
            in Arizona, claimant was engaged in employment substantially 
 
            similar to the employment in which he was engaged at the 
 
            time of his injury.  Under section 85.33(1) claimant's 
 
            temporary total disability ended when claimant commenced his 
 
            employment in January of 1988.  For purposes of this case 
 
            the undersigned finds the ending date for his temporary 
 
            total disability to be January 1988.
 
            
 
                 Claimant's rate of pay is calculated pursuant to 
 
            section 85.36(6).  This totals $2,574 divided by 13 weeks 
 

 
            
 
            Page  27
 
            
 
            
 
            
 
            
 
            equals $198.00 in gross weekly earnings.  Using the 1985 
 
            rate book for married and four exemptions, this equals 
 
            $136.83 weekly benefit rate.
 
            
 
                 The final issue to address is whether claimant is 
 
            entitled to medical benefits under section 85.27 after his 
 
            health insurance paid some benefits.  Claimant is requesting 
 
            payment for:
 
            
 
                 Medical mileage
 
            7,876 miles x .21 /mile = $1,653.96
 
            
 
                 unknown                    $  193.00
 
            internal medicine             630.00
 
            Mercy Hospital                301.25
 
            Edward Larson, DDS, P.C.       27.50
 
            Walgreen's                      4.00
 
            Wal-Mart                      502.63
 
            Mercy Hospital              3,066.70
 
            Dr. Varner                    153.75
 
                           Total       $3,873.57
 
            
 
                 All of the expenses with the exception of the unknown 
 
            bill in the sum of $193.00, and Dr. Larson's bill of $27.50, 
 
            are reasonable and necessary medical expenses.  Defendants 
 
            are liable for the same as well as reimbursement to claimant 
 
            for medical mileage in the sum of $1,653.96.
 
            
 
                     findings of fact and conclusions of law
 
            
 
                 Based upon the evidence presented, the testimony given 
 
            and the stipulations of the parties, the following are the 
 
            findings of fact and conclusions of law:
 
            
 
                 Finding 1.  Claimant sustained a temporary injury to 
 
            his body as a whole as a result of a work injury on June 18, 
 
            1986.
 
            
 
                 Finding 2.  Claimant received medical treatment for his 
 
            temporary injury to his body as a whole.
 
            
 
                 Finding 3.  Claimant was medically incapable of working 
 
            at defendant-employer from June 18, 1986 to January 2, 1988.
 
            
 
                 Finding 4.  Claimant returned to work pumping septic 
 
            tanks on January 3, 1988.
 
            
 
                 Finding 5.  As a result of his work injury on June 18, 
 
            1986, claimant incurred medical expenses and mileage in the 
 
            amounts of $3,873.57 and $1,653.96, respectively.
 
            
 
                 Finding 6.  Claimant did not incur any permanent 
 
            functional impairment as a result of his work injury on June 
 
            18, 1986.
 
            
 
                 Conclusion A.  Claimant has proven by a preponderance 
 
            of the evidence that he is entitled to temporary total 
 
            disability benefits from June 18, 1986 to January 2, 1988.
 
            
 
                 Conclusion B.  Claimant has incurred medical expenses 
 

 
            
 
            Page  28
 
            
 
            
 
            
 
            
 
            in the sum of $3,873.57 and medical mileage in the sum of 
 
            $1,653.96 for which defendants are liable.
 
            
 
                                      order
 
            
 
                 THEREFORE, defendants are liable to claimant for eighty 
 
            point five-seven-one (80.571) weeks of temporary total 
 
            disability benefits at the rate of one hundred thirty-six 
 
            and 83/l00 dollars ($136.83) per week.
 
            
 
                 Defendants are also liable for medical expenses in the 
 
            sum of three thousand eight hundred seventy-three and 57/l00 
 
            dollars ($3,873.57) and medical mileage in the sum of one 
 
            thousand six hundred fifty-three and 96/l00 dollars 
 
            ($1,653.96).
 
            
 
                 Accrued benefits are to be paid in a lump sum together 
 
            with the statutory interest rate allowable.
 
            
 
                 Defendants are to be given credit for all benefits 
 
            previously paid to claimant.
 
            
 
                 Costs are assessed to defendants.
 
            
 
                 Defendants are to file a claim activity report upon 
 
            payment of all benefits.
 
            
 
            
 

 
            
 
            Page  29
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of April, 1990.
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Edward M. Blando
 
            Mr. Jack C. Paige
 
            Attorney at Law
 
            700 Higley Bldg
 
            P O Box 1968
 
            Cedar Rapids  IA  52406
 
            
 
            Mr. John D. Stonebraker
 
            Mr. Mark D. Cleve
 
            Ms. Patricia Rhodes Cepican
 
            Attorney at Law
 
            P O Box 2746
 
            Davenport  IA  52809
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    1801; 1803
 
                                                    Filed April 27, 1990
 
                                                    MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DONALD E. CARLE,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :        File No. 833021
 
            RILEY BROTHERS, INC.,         :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            UNITED STATES FIDELITY and    :
 
            GUARANTY COMPANY,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            1801; 1803
 
            Claimant was exposed to xylene, a solvent.  The exposure was 
 
            due to working with the chemical in the workplace.  Claimant 
 
            was temporarily disabled.  He could not establish by a 
 
            preponderance of the evidence that he was permanently 
 
            disabled because of his chemical exposure in the workplace.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DONALD E. CARLE,              :
 
                                          :
 
                 Claimant,                :        File No. 833021
 
                                          :
 
            vs.                           :            N U N C
 
                                          :
 
            RILEY BROTHERS, INC.,         :             P R O
 
                                          :
 
                 Employer,                :            T U N C
 
                                          :
 
            and                           :           O R D E R
 
                                          :
 
            UNITED STATES FIDELITY and    :
 
            GUARANTY COMPANY,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            It is hereby ordered that the arbitration decision in this 
 
            matter filed on April 27, 1990, should be amended in the 
 
            following particulars:
 
            1.  Paragraph 2 under the Order provisions on page 29 of the 
 
            decision should be corrected to reflect that defendants are 
 
            liable for medical expenses in the sum of three thousand six 
 
            hundred fifty-three and 07/l00 dollars ($3,653.07).
 
            
 
            
 
            
 
                 Signed and filed this ____ day of May, 1990.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Edward M. Blando
 
            Mr. Jack C. Paige
 
            Attorneys at Law
 
            700 Higley Bldg
 
            P O Box 1968
 
            Cedar Rapids  IA  52406
 
            
 
            Mr. John D. Stonebraker
 
            Mr. Mark D. Cleve
 
            Ms. Patricia Rhodes Cepican
 
            Attorneys at Law
 
            P O Box 2746
 
            Davenport  IA  52809
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            DARRELL D. BROWN,   :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 833027
 
            MIDWEST READY MIX,  :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            HAWKEYE SECURITY INSURANCE,   :
 
                      :
 
                 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 December 26, 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 September, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                           INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Steven C. Jayne
 
            Attorney at Law
 
            5935 Grand Avenue
 
            Suite 201
 
            Des Moines, Iowa 50312
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            Mr. Helmut A. Mueller
 
            Attorney at Law
 
            RR 5
 
            Osceola, Iowa 50213
 
            
 
            Mr. Thomas Henderson
 
            Mr. A. Roger Witke
 
            Attorneys at Law
 
            1300 First Interstae Bank Building
 
            Des Moines, Iowa 50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      9998
 
                      Filed September 26, 1991
 
                      BYRON K. ORTON
 
                      DRR
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                      :
 
            DARRELL D. BROWN,   :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 833027
 
            MIDWEST READY MIX,  :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            HAWKEYE SECURITY INSURANCE,   :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            _____
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed December 
 
            26, 1990.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DARRELL D. BROWN,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 833027
 
            MIDWEST READY MIX,            :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            HAWKEYE-SECURITY INSURANCE,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon claimant's 
 
            petition filed June 15, 1988.  Claimant allegedly sustained 
 
            a work injury to his back when he slipped on oil while 
 
            attempting to move a heavy chute while standing on the rear 
 
            platform of a cement truck on September 5, 1986.  He now 
 
            seeks benefits under the Iowa Workers' Compensation Act from 
 
            his employer, Midwest Ready Mix, and its insurance carrier, 
 
            Hawkeye-Security Insurance.
 
            
 
                 Hearing on the arbitration petition was had in Des 
 
            Moines, Iowa, on April 27, 1990.  The record consists of 
 
            joint exhibits 1 through 17 and 19 through 22, defendants' 
 
            exhibits 18 (except the deposition testimony of Jody Legler, 
 
            which was excluded upon objection), 25 through 30 and 32, 
 
            claimant's exhibits 23, 24 and 31, and the testimony of 
 
            claimant, Jeff Johnson, Lewis Vierling and Tim Janssen.  The 
 
            exhibits include original x-rays and a videotape.  
 
            Defendants' exhibit 18 includes the depositions of claimant, 
 
            Fred Chiodo, C. E. Tindle, D.C., James Audlehelm, D.C., 
 
            Robert Hayne, M.D., and Joshua Kimelman, D.O.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report, the parties have 
 
            stipulated:  that an employment relationship existed between 
 
            claimant and Midwest Ready Mix on September 5, 1986; that if 
 
            claimant sustained a work injury causing temporary 
 
            disability, claimant's entitlement to healing period or 
 
            temporary total disability is from September 6, 1986 through 
 
            November 18, 1987; that if claimant has sustained permanent 
 
            disability, it is an industrial disability to the body as a 
 
            whole and the commencement date is November 19, 1987; that 
 
            affirmative defenses are waived; that medical benefits are 
 
            no longer in dispute.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 Issues presented for resolution include:  whether 
 
            claimant sustained an injury arising out of and in the 
 
            course of his employment on September 5, 1986; whether the 
 
            alleged injury caused temporary or permanent disability and 
 
            the extent of the latter; the appropriate rate of 
 
            compensation; the extent to which defendants are entitled to 
 
            credit for compensation paid voluntarily prior to hearing; 
 
            whether claimant is entitled to permanent total disability 
 
            benefits under the "odd-lot" theory of recovery; taxation of 
 
            costs.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all of the evidence, finds:
 
            
 
                 Claimant, age 38 at time of hearing, has a work history 
 
            in farming, construction work, machine operation, meat 
 
            cutting and self-employment as a bulldozer operator.  He 
 
            began working for Midwest Ready Mix in April, 1985, and 
 
            continued that employment with intermittent layoffs through 
 
            September 5, 1986.
 
            
 
                 C. E. Tindle, D.C., testified by deposition on June 1, 
 
            1989.  He first saw claimant on July 28, 1986, less than six 
 
            weeks prior to the claimed work injury.  Claimant presented 
 
            with complaints of lower back ache and discomfort in the 
 
            left leg, which Dr. Tindle assumed to be radiating pain from 
 
            the lower back.  Claimant gave a history of this pain 
 
            beginning after he had been driving a tractor for about four 
 
            days.  Dr. Tindle took an x-ray which he described as 
 
            showing a vertebra pulled to the left indicative of muscle 
 
            spasms in the lumbar region.  Dr. Tindle treated claimant 
 
            with manipulation of the lower spine on July 28, and again 
 
            on July 30, August 4, August 6, and August 8, 1986.  Based 
 
            on his observations, Dr. Tindle believed that claimant was 
 
            improving and, after claimant discontinued returning for 
 
            treatment, further assumed that he was getting along 
 
            alright.
 
            
 
                 In fact, claimant had merely decided to shift his 
 
            business to another chiropractor, a younger man and 
 
            apparently more extensively equipped.  This was James 
 
            Audlehelm, D.C., who testified by deposition on April 27, 
 
            1989.
 
            
 
                 Claimant presented to Dr. Audlehelm on August 9, 1986.  
 
            He gave a history of having low back pain for the past two 
 
            weeks which had started to bother him after he had been 
 
            riding a tractor and that after riding a lawnmower the week 
 
            before, was unable to get out of bed the following morning 
 
            with radiating pain down both legs, especially the left.  
 
            Forward bending caused radiating pain down the left leg.  
 
            Claimant also indicated that his pain had become 
 
            progressively worse over the past two weeks.  He further 
 
            complained that his legs would not hold him up when walking.
 
            
 
                 Dr. Audlehelm described his chart notes of leg pain as 
 
            meaning pain going down past the knees.  Asked specifically 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            if the pain had been reported as radiating from the low back 
 
            to the thigh area, he responded that he would have made a 
 
            different chart notation.
 
            
 
                 Claimant proved to be bilaterally positive on straight 
 
            leg raising tests, which can be indicative of spinal nerve 
 
            root impingement.  Dr. Audlehelm considered it indicative 
 
            only of low back muscle spasms, "irritation of the ligaments 
 
            and nerves."  Claimant had limited range of motion on 
 
            extension, flexion, rotation and bending to either side.
 
            
 
                 Dr. Audlehelm treated claimant with manipulation on 
 
            August 9, 11, 13, 16, 19 and 22, 1986.  He took x-rays on 
 
            August 9 which he read as showing a congenital deformity in 
 
            the L5-S1 area (an overgrowth of the left transverse process 
 
            and right transverse process, referred to as sacralization).
 
            
 
                 Thereafter, claimant appeared for treatment on 
 
            September 5, September 8, September 9 and September 10.  On 
 
            September 10, claimant for the first time told Dr. Audlehelm 
 
            of the alleged September 5 injury and further x-rays were 
 
            taken.  Little difference was seen.
 
            
 
                 In describing the injury to Dr. Audlehelm, claimant 
 
            stated that he had been stepping off the back of a cement 
 
            truck and stepped in some grease, falling and injuring or 
 
            reinjuring the low back.  As of September 10, Dr. Audlehelm 
 
            revised his original diagnosis of strain-sprain complex of 
 
            the lower lumbar spine, sciatic neuralgia radiating into 
 
            both legs and spinal misalignments to "severe" 
 
            strain-sprain.  Dr. Audlehelm felt that claimant's condition 
 
            had worsened from when he had been seen in August, but was 
 
            unable to state within a reasonable degree of chiropractic 
 
            certainty that permanent changes had resulted from the 
 
            alleged September fall.  No evidence of trauma was noted on 
 
            claimant's body.
 
            
 
                 As it turned out, claimant suffered a herniated disc at 
 
            L4-5 which has required two surgical interventions and has 
 
            left him with great residual pain and disability.  Claimant 
 
            has been treated by numerous other physicians, but has 
 
            apparently not given an accurate history to any of them.
 
            
 
                 Dr. Audlehelm referred claimant to Thomas J. Lower, 
 
            D.O., in October, 1986.  Dr. Lower's report of December 11 
 
            of that year indicates a history of pain occurring as the 
 
            result of the injury received while working as a cement 
 
            truck driver and notes that "in summary, Mr. Brown does not 
 
            appear to have any similar previous injuries, * * *."
 
            
 
                 Claimant was seen for physical therapy treatment with 
 
            M. E. Schinzel, R.P.T.  Schinzel noted the following history 
 
            on November 3, 1986:
 
            
 
                 Objectively, the patient indicates he injured his 
 
                 back approximately two months ago while working as 
 
                 a cement driver.  According to the patient, he 
 
                 slipped and nearly fell from the truck with the 
 
                 sudden unguarded movement being the cause of the 
 
                 pain.  He has had no previous history of lower 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 back pain.
 
            
 
                 Schinzel's notes also reflect that claimant described 
 
            himself as not having immediately realized he had injured 
 
            himself, but that pain progressively worsened throughout the 
 
            day.
 
            
 
                 Claimant's treating surgeon was Robert A. Hayne, M.D.  
 
            Dr. Hayne testified by deposition on January 26, 1990.  He 
 
            first saw claimant on November 10, 1986, taking a history on 
 
            that date as follows:
 
            
 
                 A.  History dating back to 5 September 1986, at 
 
                 which time Mr. Brown stated that he fell from a 
 
                 cement truck at work, and following this, almost 
 
                 immediately experienced pain in his low back and 
 
                 the right lower extremity.
 
            
 
            (Dr. Hayne deposition, page 3, lines 17 through 21)
 
            
 
                 And:
 
            
 
                 A.  No.  He was asked that, but any further 
 
                 elaboration as to any treatments that he had had 
 
                 of his back would not have been asked, because he 
 
                 said he had had no trouble with his back.
 
            
 
                 Q.  Where did he say he had no trouble with his 
 
                 back in the past?  Did he write it down somewhere?
 
            
 
                 A.  No.  His health in the past had been good, and 
 
                 he had had, he said, no difficulty with any areas 
 
                 in his body in the past, and so in view of the 
 
                 back being a part of his body, I assumed that he 
 
                 had no trouble there.
 
            
 
            (Dr. Hayne deposition, page 26, line 23 through page 27, 
 
            line 8)
 
            
 
                 Dr. Hayne was also asked the following hypothetical 
 
            question:
 
            
 
                 Q.  Doctor, I'd like you to assume that each of 
 
                 those facts is true that I've told you about 
 
                 Darrell Brown, that he was employed by his 
 
                 father-in-law doing farm work during the summer of 
 
                 1986, riding a tractor for up to 16 hours a day, 
 
                 and began to feel pain in his lower back radiating 
 
                 into his lower extremities.
 
            
 
                 I would like you to further assume that he saw 
 
                 chiropractors on 11 occasions prior to September 
 
                 5th, 1986, and I would like you to further assume 
 
                 that on one incident during that summer he was 
 
                 riding a lawn tractor and the next morning the 
 
                 pain was so significant, he had difficulty getting 
 
                 out of bed due to the discomfort.
 
            
 
                 Doctor, I would like to ask you if you have an 
 
                 opinion within a reasonable degree of medical 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 certainty as to whether or not the disc that you 
 
                 treated him for in December of 1986 would have 
 
                 existed during the summer of 1986 when Darrell 
 
                 Brown was complaining of these difficulties?
 
            
 
                 A.  Yes.
 
            
 
                 Q.  And what is that opinion?
 
            
 
                 A.  I think that it did probably exist in a 
 
                 herniated condition.
 
            
 
            (Dr. Hayne deposition, page 15, line 5 through page 16, line 
 
            3)
 
            
 
                 Dr. Hayne further indicated that if claimant had 
 
            suffered a fall such as he described on September 5, 1986, 
 
            it probably caused an aggravation to the herniated disc.
 
            
 
                 Claimant was also seen by Joshua D. Kimelman, D.O.  Dr. 
 
            Kimelman testified by deposition on February 28, 1990.  He 
 
            first saw claimant on January 3, 1989.  His chart notes of 
 
            that date reflect as to the history he was given:
 
            
 
                 This 37 year old male reported that on September 
 
                 5, 1986, he slipped on some oil spill from the 
 
                 back of a cement truck and struck his lower back.  
 
                 He was able to work that day but had progressive 
 
                 discomfort in his back and leg pain since that 
 
                 time.
 
            
 
                 Claimant did not advise Dr. Kimelman of his preexisting 
 
            low back and left leg pain and chiropractic treatment in the 
 
            six weeks preceding the claimed injury.
 
            
 
                 Dr. Kimelman referred claimant to the University of 
 
            Iowa Hospitals and Clinics.  An admission chart note of 
 
            April 13, 1989, apparently prepared by Brian D. Mulliken, 
 
            M.D., and Ernest Found, M.D., reflects:
 
            
 
                 Darrell Brown is a 37 year old white male here for 
 
                 evaluation of low back and leg pain.  The patient 
 
                 had no previous history of back problems until 
 
                 9/86 when he suffered severe back pain after 
 
                 slipping on an oil patch and falling on his back.
 
            
 
                 Claimant testified not only at hearing but by 
 
            deposition taken April 5, 1989.  In his deposition 
 
            testimony, claimant stated that later in the day he began 
 
            getting strong sharp pains right in the middle of the back 
 
            around the belt line area, but that it did not radiate into 
 
            either leg at that time.  He further indicated that when he 
 
            had been seeing Dr. Tindle, pain was located in the buttocks 
 
            area or on the side of the hip, but not in the lower back or 
 
            into the legs.  He further stated that prior to the subject 
 
            accident, he had never had any trouble with his back at all.  
 
            Prior to the accident he had no pain radiating below the 
 
            buttock area.
 
            
 
                 In his trial testimony, claimant indicated that the 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            pain for which he saw Drs. Tindle and Audlehelm did include 
 
            some low back pain and leg pain and a "soreness" in the 
 
            thighs.
 
            
 
                 There are a number of other discrepancies with respect 
 
            to the way in which claimant reported this injury.  At 
 
            hearing, he stated that he told dispatcher "Jeff" when he 
 
            returned to the plant that he had fallen and was sore, but 
 
            felt okay.  Further, that he had told dispatcher Timothy 
 
            Janssen of the injury on the same day after he had washed 
 
            out his truck.  Tim Janssen testified that "Jeff" was no 
 
            longer employed by Midwest Ready Mix in 1986 and that he did 
 
            not recall discussing the incident with claimant until a 
 
            telephone conversation the next week.
 
            
 
                 There are a number of minor discrepancies concerning 
 
            whether claimant fell from a ladder or platform, whether the 
 
            truck was at a job site or in the plant, and whether he 
 
            slipped on grease or oil.  None of these strike this 
 
            observer as particularly significant, and are as likely to 
 
            result from sloppy record keeping as a deliberate attempt at 
 
            falsification.
 
            
 
                 However, it is significant that claimant described the 
 
            injury as occurring while he stood on a platform at the back 
 
            of the truck and attempted to move a chute filled with 
 
            cement residue so that he could wash the chute out into a 
 
            storm sewer.  While perhaps possible, an action such as this 
 
            would be extremely awkward, the operator would not be able 
 
            to operate controls with his feet, and the chute would be 
 
            sufficiently heavy (containing concrete residue) that it 
 
            would be extremely difficult to move from the back of a 
 
            truck as opposed to from the ground.  However, it is a 
 
            little difficult to make a definitive determination because 
 
            the videotape submitted apparently was of a different truck 
 
            than the one operated by claimant.
 
            
 
                 Given the above noted inconsistencies and problems in 
 
            claimant's testimony and the very misleading histories he 
 
            gave subsequent treating physicians, this observer finds 
 
            himself unconvinced that an actual incident occurred on 
 
            September 5, 1986, as claimant described.  He obviously did 
 
            suffer a herniated disc at some time, but as shown by Dr. 
 
            Hayne's testimony, this very probably occurred in July or 
 
            August when claimant sought 11 chiropractic treatments 
 
            immediately prior to the claimed injury.
 
            conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on September 5, 
 
            1986 which arose out of and in the course of his employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 
 
            128 (1967). 
 
            
 
                 Claimant has failed to establish that a work injury 
 
            occurred as he described on September 5, 1986.  This is his 
 
            burden of proof.  As he has failed to meet that burden of 
 
            proof, he has not established an injury arising out of and 
 
            in the course of his employment causally related to his 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            current state of ill-being.
 
            
 
                 Accordingly, other issues are moot.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED:
 
            
 
                 Claimant shall take nothing from this proceeding.
 
            
 
                 The costs of this action shall be assessed to claimant 
 
            pursuant to 343 IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Steven C. Jayne
 
            Attorney at Law
 
            5835 Grand Avenue
 
            Suite 201
 
            Des Moines, Iowa  50312
 
            
 
            Mr. Helmut A. Mueller
 
            Attorney at Law
 
            RR 5
 
            Osceola, Iowa  50213
 
            
 
            Mr. Thomas Henderson
 
            Mr. A. Roger Witke
 
            Attorney at Law
 
            1300 First Interstate Bank Building
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1402.20
 
                           Filed December 26, 1990
 
                           DAVID RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DARRELL D. BROWN,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 833027
 
            MIDWEST READY MIX,            :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            HAWKEYE-SECURITY INSURANCE,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            5-1402.20
 
            Due to inconsistent medical histories and testimony, 
 
            claimant lacked credibility.  Although he had a herniated 
 
            disc, he failed to prove a work injury as opposed to a 
 
            preexisting condition.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            ROBERT M. LAMB,     
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 833231
 
            BETNER, INC.,  
 
                       
 
                 Employer,                        A P P E A L
 
                      
 
            and                                 D E C I S I O N
 
                      
 
            AMERICAN MOTORISTS INSURANCE  
 
            COMPANY - KEMPER GROUP,  
 
                      
 
                 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 issues on appeal are:  Whether claimant sustained an 
 
            injury on September 9, 1986 which arose out of and in the 
 
            course of his employment; whether there is a causal 
 
            connection between claimant's alleged work injury and his 
 
            alleged disability; the nature and extent of claimant's 
 
            disability, if any; claimant's entitlement to medical 
 
            benefits pursuant to Iowa Code section 85.27; and the rate 
 
            of weekly benefits.
 
            
 
                                  FINDINGS OF FACT
 
 
 
            Claimant was born June 16, 1964.  Claimant testified he 
 
            graduated from high school at age 21.  Claimant said he has 
 
            a learning disorder.  Claimant stated he had many 
 
            interruptions in grade school, junior and senior high school 
 
            because his parents moved around so much.  Claimant stated 
 
            he took a remedial reading course at Hawkeye Institute of 
 
            Technology in 1989.  Claimant related he received C's and 
 
            D's in high school.
 
            Claimant described his work history which basically involved 
 
            working for minimum wages at fast food restaurants in 
 
            various cities in two different states.  He stated his jobs 
 
            involved work as a crew member, cook and janitor.  He stated 
 
            he also worked a short time painting plywood for signs and 
 
            helped to put them up.
 
            Claimant testified he started working for defendant employer 
 
            at the Waterloo McDonalds in August 1986 as a cook.  He said 
 
            that a semi-truck came to the restaurant on September 9, 
 
            1986 with a delivery of different items including soda pop 
 
            cylinders, boxes of paper, foam containers, tomatoes, 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            cucumbers and other items.  Claimant had one helper whose 
 
            name he could not recall.  Claimant said that he and the 
 
            helper were to unload the truck and stack the supplies on 
 
            the shelves or in the cooler.  Claimant described the 
 
            various boxes, their sizes and weights, some weighing 50-75 
 
            pounds.  Claimant said there was a conveyor belt running 
 
            from the truck into the store.  Claimant stated there was no 
 
            ladder to use.  Claimant said that he had to climb on the 
 
            shelves and straddle them in order to stack the higher 
 
            shelves.  Claimant stated he first had to rotate the boxes 
 
            or supplies on the shelves and then lift the new supplies to 
 
            place them on the shelves.  Claimant emphasized he could not 
 
            bend his knees while straddling the shelves.  Claimant said 
 
            that as he doing this, he suffered a low back pain and 
 
            headache.  Claimant said he did not report this pain at 
 
            first because he didn't think it was a big deal as he has 
 
            had back pain before.  Claimant related he finished work 
 
            that day and went home.  Claimant emphasized the pain was 
 
            different from any time before and his back was swollen.  He 
 
            said he went to work the next day around 10:00 a.m. even 
 
            though his back was sore.  Claimant stated he became sick to 
 
            his stomach, had a headache and his back hurt.  He revealed 
 
            he told the manager who suggested claimant continue to work.  
 
            Claimant said he tried to work but couldn't, so he went 
 
            home.  Claimant said his wife told him his back was swollen, 
 
            so claimant called Bruce, the district manager.  Claimant 
 
            related his district manager said to go to the hospital 
 
            emergency room and send the bill to McDonalds.
 
            Claimant said he did not work Thursday, September 11, 1986, 
 
            and delivered a doctor's slip to the manager on duty 
 
            September 12, 1986 (Friday).  Claimant said he then checked 
 
            the bulletin board for the one week schedule and there were 
 
            no hours after his name.  He stated all the other workers 
 
            had some hours after their names.  Claimant said he talked 
 
            to the manager who told claimant to call Bruce.  Claimant 
 
            related Bruce told him he was terminated and claimed that 
 
            claimant did not put everything down on his application.  
 
            Claimant said he put everything on his application to the 
 
            best of his knowledge.
 
            Claimant said he lived on food stamps and help from the 
 
            county and sold his blood for money after his September 9, 
 
            1986 injury.  Claimant says his wife is currently receiving 
 
            $347 per month in ADC and he is receiving $388 in social 
 
            security benefits and both are receiving food stamps.  
 
            Claimant said he was willing to have psychological help and 
 
            physical therapy after his injury but the insurance company 
 
            would not pay for it.  Claimant explained he did not know 
 
            who was paying for his physical therapy now.  Claimant 
 
            related the jobs he attempted to find, including those 
 
            suggested to him by the vocational consultant.  Claimant 
 
            said he still has problems bending, stooping and lifting.  
 
            He related the doctor put restrictions of no lifting over 15 
 
            pounds and no standing for long periods of time.  Claimant 
 
            acknowledged that when he applied for a job, he is honest 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            and does put his restrictions on the application.  Claimant 
 
            said the only injury prior to September 9, 1986 was an 
 
            electrocution injury to his shoulder in 1983 which required 
 
            surgery, a broken thumb, left hand and wrist injury in 1982 
 
            and a left carpal tunnel in 1983.  Claimant contends he has 
 
            no permanent disability from those injuries.
 
            Claimant acknowledged his income in 1984, 1985 and 1986 was 
 
            $1,211.88, $500.83 and $1,430.81, respectively.
 
            Claimant admitted he had previously been fired at McDonalds 
 
            Restaurant in the spring of 1985.  Claimant also indicated 
 
            that he was fired at Maidrite in 1986 and does not dispute 
 
            his firing from JTPA in 1986.
 
            Claimant acknowledged he has a hearing problem, but 
 
            emphasized he could work with his hearing loss problem.
 
            Claimant acknowledged that when his deposition was taken in 
 
            February 1988, one year after his back surgery, he had said 
 
            he had not gone out to look for work.  Claimant claimed the 
 
            doctor said he couldn't work at that time.  Claimant 
 
            explained he did not have the money to go look for a job, 
 
            but indicated it was important for him to get a job.  
 
            Claimant mentioned he feels that if he returns to work he 
 
            may injure himself.
 
            Claimant acknowledged he is in better financial shape now 
 
            than he was before his injury as he and his wife are 
 
            receiving approximately $700 per month from social security 
 
            and ADC and he only made approximately $1,500 in 1986.
 
            Claimant affirmed that the follow-up treatment recommended 
 
            by the spine clinic was not done because the insurance 
 
            company would not pay.  Claimant acknowledged that defendant 
 
            insurance carrier sent him there for an evaluation on July 
 
            12, 1988. 
 
            Cheryl Lamb, claimant's wife, testified she has known 
 
            claimant off and on since junior high school in 1978, but 
 
            did not know him very well until the beginning of 1985.  She 
 
            emphasized she never knew claimant to have back problems 
 
            before his September 9, 1986 injury.  She recalled claimant 
 
            came home on September 9, 1986 with his back hurting, and 
 
            the middle of his back was swollen like a football.  She 
 
            could not remember if claimant called his employer the next 
 
            day or on the 11th of September 1986.  She said claimant 
 
            then called the hospital emergency room after the call to 
 
            his employer.  Mrs. Lamb said claimant then contacted 
 
            defendant employer after he had seen the doctor and later 
 
            that same day defendant employer called claimant and told 
 
            him he was fired.  Mrs. Lamb testified that at that time 
 
            claimant couldn't bend his knees without his back hurting.  
 
            She emphasized claimant cannot do most things around the 
 
            house.
 
            She said claimant can't read very well and has trouble 
 
            spelling.  Mrs. Lamb said she went with claimant to fill out 
 
            an application at the Country Market and Hy-Vee.  She said 
 
            there were some questions neither she nor her husband could 
 
            understand.  Mrs. Lamb emphasized she would like to see her 
 
            husband get work.  She indicated he wants to get off social 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            security and she wants to get off ADC.
 
            Brad Kofron testified he is the manager of the Waterloo 
 
            McDonalds restaurant and hired claimant in August 1986.  
 
            Kofron said claimant never put on his application that he 
 
            had previously worked at the Cedar Falls McDonalds 
 
            restaurant, otherwise, he would have called Kevin Tanner.  
 
            He emphasized that McDonalds has a policy that if you are 
 
            fired at one McDonalds, you cannot work at another.  He said 
 
            falsifying an application is grounds for dismissal.
 
            Kofron stated claimant was hired part-time to work 15 to 20 
 
            hours per week at $3.35 per hour and claimant did work two 
 
            weeks.  He said there were others who were hired for 40 
 
            hours per week.  Kofron contends he helped unload the truck 
 
            with claimant and Craig Gates on September 9, 1986.  He said 
 
            there was a ladder to use to stock shelves.  He said he 
 
            didn't see claimant spreading his legs on September 9, 1986 
 
            in order to stock the shelves.
 
            Kofron testified September 11 was the first time he knew of 
 
            claimant's injury.  Claimant was to work on that date.  He 
 
            acknowledged he talked to claimant on September 12, 1986, at 
 
            which time claimant came into the store and said he hurt his 
 
            back.  He told claimant to bring the medical bills to him at 
 
            the store and he would send them in for claimant.  Kofron 
 
            emphasized he didn't say McDonalds would pay the bills, but 
 
            only that they would reimburse claimant if the insurance 
 
            company would pay the bills.  Kofron admitted he called 
 
            claimant and fired him after he found out claimant worked at 
 
            another McDonalds and had been fired.  Kofron said, "if 
 
            claimant hadn't been fired before he probably wouldn't have 
 
            fired him."  Kofron contends he was with claimant while the 
 
            truck was being unloaded on September 9, 1986.  He contends 
 
            the ladder is always in the back of the building inside.  He 
 
            said if he is short of people, he must find a replacement or 
 
            help at the counter.
 
            Kofron revealed that Bruce Schadle, the district manager, 
 
            called Kofron and said claimant wanted his pay and also 
 
            stated claimant thought he hurt his back.  Kofron related 
 
            Bruce told him McDonalds can't tell the claimant what doctor 
 
            to go to and that he was to tell claimant to go to whatever 
 
            doctor claimant wanted.  Kofron testified that he couldn't 
 
            tell the claimant which doctor to go to treat his injury.  
 
            (Tr., p. 228, ll. 15-18)  He also testified that he had told 
 
            claimant to bring him the medical bills and he would send 
 
            them to the adjuster but he never told claimant the employer 
 
            would pay the bills.  (Tr., p. 216, l. 22-, p. 217, l. 16)
 
            Bruce Schadle testified he is the store manager at the Main 
 
            Street McDonalds in Cedar Falls.  He said he was the 
 
            district supervisor of the five area stores on September 9, 
 
            1986.  He said claimant called him on September 11, 1986 
 
            regarding two hours of pay and said he hurt his back two 
 
            days earlier.  Schadle said he referred claimant to Brad 
 
            Kofron.  Schadle testified McDonalds likes to hire part-time 
 
            help.  He said there is a small percent of full-time 
 
            compared to part-time help.  He indicated 15 to 20 hours a 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            week are normal in the industry.  
 
            Schadle said that after claimant called him, he called 
 
            Kofron and indicated he recognized claimant's name from 
 
            signing his checks and found out claimant had been fired 
 
            previously at a McDonalds restaurant.  He then explained 
 
            that they decided to exercise the area policy and terminated 
 
            claimant based on misrepresentation on the application.  He 
 
            affirmed claimant worked 35.25 hours in the two weeks 
 
            claimant was employed.  He could not recall telling claimant 
 
            to go to the doctor and send him the bill and they would 
 
            pay.
 
            Gary Mudfrom testified by way of deposition taken November 
 
            16, 1986 that he was the store manager of the Kimball Avenue 
 
            McDonalds restaurant, where the claimant's alleged injury 
 
            occurred.  He said he was the assistant manager in September 
 
            1986.  Mudfrom said he wasn't working the afternoon of 
 
            September 9, 1986.  He said claimant was in a good mood on 
 
            September 10, 1986 and appeared to be having no problems but 
 
            by the afternoon claimant was an entirely different person.  
 
            Claimant told him he wasn't feeling well.  Mudfrom contends 
 
            claimant never told him he hurt his back.  Mudfrom said he 
 
            heard claimant hurt his back from Brad Kofron, store 
 
            manager.  Mudfrom understood claimant was fired shortly 
 
            thereafter.  
 
            Kevin Tanner testified he is the owner of the Cedar Falls 
 
            McDonalds restaurant and was store manager from 1984 through 
 
            1986.  He said claimant was employed for seven and one-half 
 
            months at this store from August 28, 1984 to April 4, 1985.  
 
            He said claimant's job was as a crew person, food preparer, 
 
            counter service and custodial.  He related he fired claimant 
 
            for misconduct involving poor motivation, being late for 
 
            work, missing work without calling in, talking back to the 
 
            manager and other employees.  He indicated everyone at 
 
            McDonalds starts out part-time to see how they do.  
 
            Claimant was seen by David Poe, M.D., on September 18, 1986.  
 
            Dr. Poe's medical records indicate normal neurologic except 
 
            some decreased sensation at L5.  X-rays were normal.  The 
 
            medical records of Dr. Poe indicate that on October 9, 1986 
 
            the lumbar CT scan was negative.  Dr. Poe referred claimant 
 
            to HoSung Chung, M.D., a neurosurgeon for a second opinion.  
 
            (Cl. Ex. 11-1)
 
            In a letter dated October 15, 1986 Dr. Chung indicated that 
 
            claimant had a lumbar muscular strain at most but wanted 
 
            further tests to be conducted by A. Nakhasi, M.D.  (Cl. Ex. 
 
            10)  A letter by Dr. Nakhasi October 20, 1986 indicates that 
 
            tests showed no abnormality.  (Cl. Ex. 11-2)  An office note 
 
            by Dr. Poe dated October 28, 1986 indicated that a myelogram 
 
            and an EMG were negative.  On November 14, 1986 Dr. Poe's 
 
            office note indicates claimant's pain was of an undetermined 
 
            etiology and that he was referring claimant to John Walker, 
 
            M.D., an orthopedic surgeon.  (Cl. Ex. 44-2)  The records of 
 
            Drs. Poe, Chung and Nakhasi refer to a lifting episode by 
 
            claimant on September 9, 1986.
 
            Dr. Walker testified by way of deposition on August 11, 1987 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            that he first saw claimant on January 14, 1987 after a 
 
            referral from Dr. Poe.  Dr. Walker related the lengthy 
 
            history claimant gave him including the medical services 
 
            rendered to him.  He said his initial exam revealed extreme 
 
            tenderness at L5-S1 and also tenderness in the right and 
 
            left sacroiliac.  Dr. Walker arrived at a diagnosis on 
 
            January 14, 1987 as follows:
 
            I felt he did have a herniated lumbar disc problem with a 
 
            so-called sciatica on the left.  And secondly, I said 
 
            sacroiliac, but what he does have, what he had was a bad 
 
            lumbosacral midline sprain, with an instability problem.  
 
            And then thirdly, he did have a little sprain of the left 
 
            sacroiliac joint, and a little pain in the right, but not 
 
            terribly significant.  Those three diagnoses.
 
            
 
            (Walker Dep., Joint Exhibit 1, p. 13)
 
            Dr. Walker said he suggested conservative treatment involv
 
            ing traction.  On January 19, 1987, Dr. Walker hospitalized 
 
            claimant and had a CT scan, MRI and myelogram performed 
 
            which turned out to be negative, but claimant had an 
 
            elevated spinal fluid protein which was significant and 
 
            indicated some nerve root problems.  He said a normal fluid 
 
            is usually 15 to 45.
 
            Dr. Walker stated claimant's tests again proved negative and 
 
            claimant was released from the hospital on February 3, 1987 
 
            with the following diagnosis:
 
            Three diagnoses I have put down for the discharge summary.  
 
            Herniated lumbar disc with left-sided sciatica, probably an 
 
            L-4 disc herniation.  Two, severe lumbosacral sprain with 
 
            marked instability at L-4, L-5.  And, three, left sacroiliac 
 
            sprain.  I left out the right one.  I really thought it was 
 
            insignificant.  I didn't even include it as a diagnosis.
 
            
 
            (Walker Dep., Jt. Ex. 1, p. 16)
 
            Dr. Walker said claimant still complained of a lot of back 
 
            and leg pain.  Dr. Walker said he next saw claimant on 
 
            February 11, 1987 as claimant was having a lot of problems.  
 
            Dr. Walker scheduled surgery, which he performed on February 
 
            23, 1987.  He said he found no disc problems but did a 
 
            fusion at L4-L5 and the sacrum.  Claimant was in the 
 
            hospital two and one-half to three weeks.  On June 22, 1987, 
 
            Dr. Walker said he gave claimant a TENS unit to wear.  Dr. 
 
            Walker said claimant came in on two occasions, June 22, 1987 
 
            and July 13, 1987, complaining that his leg gave out and he 
 
            fell.  Dr. Walker said he hospitalized claimant again on 
 
            July 15, 1987 and there was still no evidence of disc protru
 
            sion.  He discharged claimant at that time.  Dr. Walker said 
 
            he didn't release claimant to work and didn't think he was 
 
            able to return at that time.  Dr. Walker opined a causal 
 
            connection between claimant's back condition and his injury 
 
            on September 9, 1986 at McDonalds.  At the time of his 
 
            deposition, Dr. Walker opined a 20 to 22 percent impairment 
 
            to claimant's body as a whole.  Dr. Walker acknowledged that 
 
            his preoperative diagnosis was different than his 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            postoperative diagnosis, because he didn't find anything in 
 
            the disc area or disc problems.  On December 7, 1987, Dr. 
 
            Walker wrote, in part:
 
               The above captioned patient is certainly not coming along 
 
            well at all.  He continually falls and complains of pain in 
 
            the left knee of course and has had major lumbar surgery 
 
            consisting of wide laminotomies of L-4, L-5 and L-5, S-1 on 
 
            the left with exploration of the 4th disc, foraminotomies 
 
            and finally a bilateral, lateral fusion of McElroy including 
 
            L-4, L-5 and the sacrum.  The patient has improved a great 
 
            deal as far as his pain is concerned but he is still 
 
            functioning very poorly because of repeated falls and 
 
            continued pain off and on....
 
               At the present time I feel that this patient is badly 
 
            disabled and certainly needs vocational rehabilitation 
 
            training if at all possible and very possibly is a candidate 
 
            for social security retirement.  This patient cannot lift or 
 
            bend repeatedly or stoop or crawl on his hands and knees.  
 
            It might be able to carry for a few times per day, a 10 lb. 
 
            object from table top to table top.  Standing and sitting 
 
            are going to have to be alternate as well as walking.  In 
 
            other words, the patient has to be able to change positions 
 
            and apparently he has lots of problems.  We see him 
 
            frequently in the office for these falls and giving outs of 
 
            the knee, etcetera.  All bending and twisting must be 
 
            restricted, particularly in the lumbo-dorsal region.  
 
            Turning, reaching, pulling and pushing will be limited 
 
            markedly and all-in-all the patient is really pretty badly 
 
            disabled.  Again to repeat, vocational rehabilitation may be 
 
            a factor although the general impression that I have of this 
 
            patient is that there is not too much that they can train 
 
            him for.
 
            
 
            (Jt. Ex. 2, p. 21)
 
            On March 18, 1988, Dr. Walker wrote:
 
               It is certainly going to be most difficult to give you 
 
            any proper evaluation of Mr. Robert Lamb.  The patient 
 
            constantly has muscle spasm of the low back and constantly 
 
            falls.  He has a knee that gives out and from week to week I 
 
            see the patient up here with additional falls, apparently 
 
            from some weakness or problem in the lower extremities.  As 
 
            far as lifting and carrying is concerned, perhaps he can 
 
            carry up to 30 lbs. occasionally, once a day.  He certainly 
 
            should not do bending, stooping, shoveling, spading or 
 
            activities which will put "torsion and twist" stresses on 
 
            his low back.  Also, he should probably not do any climbing 
 
            of ladders.  He certainly cannot do any work which will not 
 
            allow him to sit a good deal of time.  All-in-all I don't 
 
            know if this man is rehabilitative material at all but I am 
 
            sure you will want to test him and try.
 
            
 
            (Jt. Ex. 2, p. 20)
 
            On July 8, 1988, Dr. Walker wrote:
 
            Since this patient's problem in the low back with sciatica, 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            the herniated disc and fusion, he has had repeated problems 
 
            of the left leg and knee giving out.  Structurally he has 
 
            been examined by Dr. Johnston and myself and the knee is 
 
            basically sound but it does appear that this problem does 
 
            arise because of the frequent falls and near falls he has 
 
            had because of the left knee giving out.  Secondarily then I 
 
            believe the knee problem is a result of his low back injury 
 
            and the
 
            
 
            
 
            Page   9
 
            
 
            
 
            
 
            resultant problems as explained in the above paragraphs.
 
            
 
            (Jt. Ex. 2, p. 18)
 
            On October 19, 1989, Dr. Walker wrote:
 
               Robert Lamb was admitted to the hospital because his left 
 
            leg was giving out and I felt that he probably had further 
 
            disc disruptions and herniations.  He was admitted on 
 
            10-10-89 for diagnosis and treatment.
 
               Prior to this on October 6, 1989 he had an EMG of the 
 
            left, lower extremity and the impression was "chronic, mild, 
 
            left L-5 radiculopathy".  This radiculopathy involved only 
 
            dorsal root of the sensory fibers of the 5th lumbar root but 
 
            there was no motor involvement, according to Dr. John 
 
            Milner-Brage.
 
               To return to his admission, he was discharged on 10-
 
            11-89.  The lumbar myelogram did not demonstrate the 
 
            evidence of any disc protrusion.  The CT scan showed 
 
            post-operative changes and fusion of L-4 through the sacrum.  
 
            There was, however, a very high, cerebral spinal fluid 
 
            protein at 85.  This is very suspicious and I suspect that 
 
            maybe further surgery is necessary here.  The patient has 
 
            been a severe problem, of course, because of the continued 
 
            pain and discomfort.  At the present time we are planning no 
 
            further surgery but it is possible that it may have to be 
 
            done at a later date.
 
            
 
            (Jt. Ex. 2, p. 1)
 
            On July 21, 1988, James N. Weinstein, M.D., of the Spine 
 
            Diagnostic and Treatment Center at the University of Iowa, 
 
            wrote, in part:
 
               I feel that it would be helpful for you to continue to 
 
            work with our psychologist, Gene Gauron, several times a 
 
            month or you could also seek support from your local Mental 
 
            Health Center in your community to assist you in dealing 
 
            with some of the stress and frustration that has been caused 
 
            by your condition.
 
               I feel that at this time you have an estimated permanent 
 
            partial impairment of 12% to 15% of your body as a whole.  
 
            At this time, you [sic] healing period is over.
 
               I disagree with the approach of "not doing anything" 
 
            100%.  At this time, you need to begin your activity level 
 
            in a graduated manner.  This should be supervised by your 
 
            local physical therapist.  Because you have become so 
 
            deconditioned and inactive over the past two years, it will 
 
            likely take approximately another two years to recondition 
 
            you to the point that you will become functional again.  
 
            This will take a very intensive effort, both on the part of 
 
            your therapist as well as a great deal of effort on your 
 
            part to fully rehabilitate yourself.  It is therefore, my 
 
            recommendation that you begin by attending our two week Low 
 
            Back Pain Rehabilitation Program here at the University of 
 
            Iowa.  This is an intensive program which consists of not 
 
            only exercise conditioning, but also coping skills and 
 
            education as far as management of your chronic low back pain 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            long-term.  Normally our patients return to work very 
 
            shortly after leaving this program, however, since you are 
 
            so deconditioned it would not be realistic for us to expect 
 
            you to return to work within the normal two weeks to one 
 
            month after leaving the program.
 
            
 
            (Jt. Ex. 4, pp.2-3)
 
            On October 19, 1989, Scott B. Neff, D.O., wrote that 
 
            claimant was there for a rating exam.  Dr. Neff said he was 
 
            confused by the records.  It appeared he did not have all of
 
            the records.  He didn't give claimant a rating in the 
 
            letter,
 
            but one day earlier he signed a letter also signed by Thomas 
 
            Bower,L.P.T. that claimant had a 20 percent impairment to 
 
            his body as a whole.  Both letters recommended a work 
 
            hardening program.
 
            The functional capacity evaluation test (Jt. Ex. 8, p. 7) 
 
            recommends claimant go through a four to six week hardening 
 
            endurance testing and a sit-stand work hardening activity.  
 
            Page 8 of this exhibit indicates claimant's work level as to 
 
            physical demand is "sedentary 10 pound maximum lifting limit 
 
            floor to knuckle."  In summary, this report, in part, 
 
            reflects:
 
               In summary I feel that Robert does present with some 
 
            significant objective findings limiting his ability to 
 
            completing spinal movements and lifting tasks.  I do feel he 
 
            could certainly improve his ability from the level he is 
 
            presently exhibiting if he were to improve his flexibility 
 
            and improve lifting mechanics.  It is doubtful that he could 
 
            resume anything more than light lifting activity but would 
 
            certainly provide him more job opportunities than he is 
 
            currently able to complete.  He was able to complete 
 
            standing waist level activities for 15 minutes with light 
 
            activity without problems and anticipate if he were to get 
 
            into a work hardening program he most likely could improve 
 
            that ability.  See page 3 of functional capacity evaluation 
 
            test two.  Presently he would be listed as sedentary in a 
 
            physical demand work level category.
 
            
 
            (Jt. Ex. 8, p. 14)
 
            On July 18, 1987, claimant had a psychometic testing.  The 
 
            report summary, in part, reflects:
 
               The client was a twenty-three year old male functioning 
 
            in borderline educable mental disability range of 
 
            intelligence.  His IQ score would place him at the sixth 
 
            percentile.  His academic achievement scores were at the 
 
            seventh grade level in arithmetic and below the third grade 
 
            level in reading and spelling.
 
               ...There was a speech problem but again he did not really 
 
            want to discuss it.  He was asked if he recieved [sic] 
 
            speech therapy in school and he asked, "Why, do I have a 
 
            speech problem?"  It is believed his lower functioning 
 
            level, lower academic skills, impaired back, etc., will make 
 
            a rehabilitation program challenging at the current time.
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            (Jt. Ex. 12, p. 3)
 
            There are several rehabilitation service reports written in 
 
            1988 and 1989 regarding claimant.  Jim Seitz, M.S., a 
 
            vocational rehabilitation consultant involved with claimant, 
 
            and David Prochaska, M.S., another vocational rehabilitation 
 
            consultant, wrote consistently in their reports that:
 
            1.  Claimant is of borderline intelligence.  He has a tested 
 
            IQ of 77 and a reading and spelling capability of "below 3rd 
 
            grade level".
 
            2.  He has a lack of transferable skills with very limited 
 
            work history in the fast food industry.
 
            
 
            (Jt. Ex. 32, p. 3)
 
            Thomas W. Magner, a certified rehabilitation counselor, 
 
            wrote on January 30, 1988:
 
               With his limited intellectual abilities he was limited in 
 
            regard to employment possibilities.  Since he has injured 
 
            his back and therefore cannot work doing heavy work, nor can 
 
            he for any extended period of time be on his feet or sit, he 
 
            is severely limited.  At this time I cannot think of any 
 
            regular job Mr. Lamb could perform on a regular basis.
 
            
 
            (Jt. Ex. 33, p. 4)
 
            David Prochaska, a vocational rehabilitation counselor hired 
 
            by defendant insurance company, testified he first came in 
 
            contact with claimant on July 28, 1988 and worked with 
 
            claimant to try to find a job.  He acknowledged attempts to 
 
            contact employers who may be interested in hiring claimant.  
 
            He stated he is presently working with claimant and makes a 
 
            phone contact every month or bimonthly.
 
            Prochaska said he contacted claimant's counselor at Hawkeye 
 
            Institute of Technology and it appeared claimant's third 
 
            grade reading and math skills increased to around the fifth 
 
            grade level.  He acknowledged claimant followed up on the 
 
            job leads he gave him on his own, but claimant indicated he 
 
            would like more references.  He stated claimant took 
 
            advantage of the insurance company's offer to reimburse 
 
            claimant $.21 a mile to try and find a job.  He said he saw 
 
            joint exhibit 33 which sets out the job information.  He 
 
            emphasized claimant's goal of making $2,000 per month net is 
 
            unrealistic.  He suggested claimant needs to better groom 
 
            and dress himself in his job hunts.  Prochaska acknowledged 
 
            claimant's application for vocational rehabilitation was 
 
            denied.  He did not know why but later acknowledged 
 
            claimant's lack of transferable skills is a problem or 
 
            barrier.  He acknowledged claimant has minimum transferable 
 
            skills.  He disagreed with the Thomas Magner report of 
 
            January 30, 1988. (Joint Exhibit 33)  Prochaska indicated 
 
            claimant could be a security worker, parking attendant, 
 
            answer telephones, hotel clerk, pizza delivery person, 
 
            ticket taker or a radio dispatcher with on-the-job training.  
 
            He acknowledged that all these jobs require some type of 
 
            record keeping, writing and spelling.  He indicated claimant 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            does not like working at Domino Pizza as the horseplay and 
 
            berating claimant for his low ability upset him.  Prochaska 
 
            claims he has placed people with similar skills and could 
 
            place claimant if proper grooming is followed.
 
            Prochaska acknowledged that the economy has been depressed 
 
            in Waterloo the last few years and has affected employment 
 
            and job availability.  He said claimant's very limited job 
 
            history is a barrier itself.  Prochaska admitted claimant's 
 
            attorney called him and said if there are any problems, call 
 
            him and he would help out.  Prochaska acknowledged he never 
 
            called Attorney Fulton and did place grooming as a barrier 
 
            to claimant in his report.  Prochaska testified claimant's 
 
            IQ as 77 overall.  He agreed an IQ of 77 is a significant 
 
            barrier to employment and the number of tasks one can do is 
 
            lessened.  He said people with that IQ would be the first to 
 
            go if there is a layoff.  Prochaska acknowledged that he 
 
            could not find claimant a parking lot job in Waterloo, even 
 
            though claimant made an application for the job.  He admit
 
            ted his predecessor, Mr. Seitz, also tried to find claimant 
 
            a job and wasn't successful.
 
            Joint exhibit 35 reflects 152 entries of times for McDonalds 
 
            employees on a two week basis.  Of these entries, nine show 
 
            employees working 40 hours per week or 80 hours in a two 
 
            week period.  Four of the nine is the same individual who 
 
            worked 40 hours in a four two week period.  
 
     
 
                              CONCLUSIONS OF LAW
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            The first issue to be resolved is whether claimant has 
 
            proved that he sustained an injury on September 9, 1986 that 
 
            arose out of and in the course of his employment.  Claimant 
 
            alleges he hurt himself while unloading and storing items at 
 
            work.  His testimony is corroborated by the testimony of his 
 
            wife and the medical records of Drs. Poe, Chung, and 
 
            Nakhasi.  Defendants assert that claimant is not credible.  
 
            They also assert that the incident would not have occurred 
 
            because there was a ladder to be used which presumedly, if 
 
            used, would not have resulted in the incident.  It is 
 
            entirely possible that the ladder could have been present 
 
            and the claimant did not use it.  Merely because there was a 
 
            ladder there does not mean that claimant could not have 
 
            engaged in the activities he alleges resulted in his injury.  
 
            Claimant sustained an injury that arose out of and in the 
 
            course of his employment.
 
            If there was no other evidence of claimant's allegations 
 
            this case might rise and fall upon claimant's credibility.  
 

 
            
 
            Page  13
 
            
 
            
 
            However, there is sufficient corroborating evidence that 
 
            claimant did sustain a work injury.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            The next issue to be resolved in this case is whether there 
 
            is a causal connection between the work injury and 
 
            claimant's alleged disability.  Nearly all, if not all, of 
 
            the doctors who treated claimant shortly after his September 
 
            9, 1986 seem to agree that claimant had a lumbar muscle 
 
            strain.  Even Dr. Walker who eventually recommended and 
 
            performed surgery initially thought claimant's condition was 
 
            not that serious.  Three of the four diagnostic tests used 
 
            by Dr. Walker were negative.  Dr. Walker performed surgery 
 
            that resulted in a fusion at L4-L5 and the sacrum.  His 
 
            preoperative diagnosis was different than his postoperative 
 
            diagnosis.  Claimant's functional impairment appears to be 
 
            attributable mainly, if not entirely, to the results of the 
 
            surgery performed in February 1987.  "If the employee 
 
            suffers a compensable injury and thereafter suffers further 
 
            disability which is the proximate result of the original 
 
            injury, such further disability is compensable.  Oldham v. 
 
            Scofield & Welch, 222 ap is fitted.  Olson v. Goodyear Serv. Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
            253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of the 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            1985).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Iowa Code section 
 
            85.34.
 
            
 
                 Total disability does not mean a state of absolute 
 
            helplessness.  Permanent total disability occurs where the 
 
            injury wholly disables the employee from performing work 
 
            that the employee's experience, training, education, 
 
            intelligence and physical capacities would otherwise permit 
 
            the employee to perform.  See McSpadden v. Big Ben Coal Co., 
 
            288 N.W.2d 181 (Iowa 1980); Diederich v. Tri-City Ry. Co., 
 
            219 Iowa 587, 258 N.W. 899 (1935).
 
            
 
                 A finding that claimant could perform some work despite 
 
            claimant's physical and educational limitations does not 
 
            foreclose a finding of permanent total disability, however.  
 
            See Chamberlin v. Ralston Purina, File No. 661698 (App. 
 
            October 29, 1987); Eastman v. Westway Trading Corp., II Iowa 
 
            Industrial Commissioner Report 134 (App. 1982).
 
            Claimant was 22 years old when he was injured.  His work 
 
            experience has been minimum wage jobs doing unskilled work 
 
            primarily in various fast food restaurants.  He has had 
 
            problems in an academic setting.  Retraining, or in this 
 
            case training, is not likely.  He has an IQ of 77.  After 
 

 
            
 
            Page  16
 
            
 
            
 
            his work injury and subsequent surgery he now has a 
 
            functional impairment of 20-22 percent of the body as a 
 
            whole.  He has both a substantial intellectual and physical 
 
            deficiency.  In the three years between the injury and the 
 
            evidentiary hearing, the claimant has not found employment 
 
            despite reasonable efforts and the assistance of a 
 
            vocational consultant.  Under the facts of this case, 
 
            claimant is permanently, totally disabled.
 
            The last issue to be resolved is claimant's rate of weekly 
 
            compensation.  There is evidence in the record that there 
 
            were regular full-time employees working for this employer 
 
            and other McDonalds' in the Waterloo area.  Claimant 
 
            definitely made less than these full-time employees 
 
            (claimant worked only approximately 35 hours total in two 
 
            weeks).  Claimant's rate of compensation should be 
 
            determined pursuant to Iowa Code section 85.36(10).  The 
 
            earnings upon which the rate of compensation is to be based 
 
            are 1/50th of the calendar months immediately preceding the 
 
            injury.  The record does not show any earnings during 1985, 
 
            but unemployment was not atypical for this claimant.  The 
 
            total wages upon which the rate is computed is therefore 
 
            $1,430.81.  This is claimant's entire 1986 earnings less the 
 
            $6.70 he earned the day after his injury.  (Claimant appears 
 
            to have been paid fully for the time he worked on the date 
 
            of the injury.)  The net figure is $1,424.11.  The net 
 
            figure divided by 50 equals a gross weekly wage of $28.48 
 
            per week, which in turn results in a weekly rate of $26.00 
 
            (it was stipulated that claimant was married and entitled to 
 
            two exemptions and this stipulation will be used.)
 
            WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
 
 
                                     ORDER
 
 
 
            THEREFORE, it is ordered:
 
            That defendants pay claimant weekly compensation for 
 
            permanent total disability pursuant to Iowa Code section 
 
            85.34(3) commencing September 11, 1986, and continuing at 
 
            the rate of twenty-six and 00/100 dollars ($26.00) each week 
 
            thereafter for so long as he remains totally disabled.
 
            That all amounts which are accrued shall be paid to the 
 
            claimant in a lump sum together with interest computed at 
 
            the rate of ten percent (10%) per annum from the date each 
 
            weekly payment came due until the date of its actual payment 
 
            in accordance with Iowa Code section 85.30.
 
            That defendants pay claimant's medical expenses as follows:
 
            
 
                 Covenant-Schoitz Hospital                    $20,871.62
 
            Orthopaedic Specialists                             8,271.00
 
            Clinical Radiologists                               1,292.90
 
            Consolidated Regional Labs                             13.40
 
            HoSung Chung, M.D.                                     90.00
 
            Covenant Home Medical Services (TENS Unit)            525.00
 
            Covenant Home Medical Services (Cane Rental)           53.50
 
            Waterloo Anesthesia Group                             570.00
 
            City of Waterloo-Ambulance Service                    340.00
 
            Ashok Nakhasi, M.D.                                   120.00
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
            David Poe, M.D.                                       226.50
 
            LaPorte City Medical Clinic                            65.00
 
            WYN Hosp. Television Inc.                              21.84
 
            River Plaza Athletic Club                             108.73
 
            Dale Clark Prosthetics                                230.00
 
            Dr. Milner-Brage                                      860.00
 
                 Total                                        $33,754.49
 
 
 
            That defendants shall pay the costs of this matter including 
 
            the transcription of the hearing.  
 
            
 
                 That defendant shall file claim activity reports as 
 
            required by this agency pursuant to rule 343 IAC 3.1(2).
 
            That this case be returned to docket for issue of penalty 
 
            benefits under the fourth unnumbered paragraph of Iowa Code 
 
            section 86.13, which issue was bifurcated.
 
            Signed and filed this ____ day of November, 1992.
 
            
 
            
 
            
 
            
 
                                     ________________________________
 
                                            BYRON K. ORTON
 
                                       INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert D. Fulton
 
            Attorney at Law
 
            P.O. Box 2634
 
            Waterloo, Iowa 50704-2634
 
            
 
            Mr. Michael A. McEnroe
 
            Attorney at Law
 
            P.O. Box 810
 
            Waterloo, Iowa 50704
 
            
 
 
         
 
 
 
 
 
 
 
 
 
                                5-1100; 1402.40; 1804; 2500; 5-3003
 
                                Filed November 30, 1992
 
                                Byron K. Orton
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                   
 
         ROBERT M. LAMB,     
 
                   
 
              Claimant, 
 
                   
 
         vs.       
 
                                               File No. 833231
 
         BETNER, INC.,  
 
                   
 
              Employer,                         A P P E A L
 
                   
 
         and                                 D E C I S I O N
 
                   
 
         AMERICAN MOTORISTS INSURANCE  
 
         COMPANY - KEMPER GROUP,  
 
                   
 
              Insurance Carrier,  
 
              Defendants.    
 
         ___________________________________________________________
 
         
 
         5-1100
 
         Claimant's testimony, which was corroborated by medical records, 
 
         established that claimant sustained an injury that arose out of 
 
         and in the course of his employment.
 
         
 
         1402.40 - 1804
 
         Claimant had a substantial physical impairment as a result of 
 
         surgery done to correct claimant's pain from a work injury.  
 
         Claimant was 22 years old and had a 77 IQ.  His prior work 
 
         consisted of minimum wage fast food jobs.  He had been unable to 
 
         find work after the injury despite efforts of a vocational 
 
         rehabilitationist.  Claimant was found to be permanently, totally 
 
         disabled.
 
         
 
         2500
 
         Claimant's medical care was authorized.  The employer told 
 
         claimant that the employer could not control the care and 
 
         employee chose a doctor who referred him to several other 
 
         doctors.
 
         
 
         5-3003
 
         Claimant was a part-time employee for a fast food restaurant who 
 
         worked 35 hours total in two weeks for the employer prior to the 
 
         injury.  Claimant's rate was calculated pursuant to Iowa Code 
 
         section 85.36(10) by dividing total earnings in prior year by 50.