BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JAMES SHELTON,
 
         
 
              Claimant,
 
                                                   File No. 833568
 
         vs.
 
                                                A R B I T R A T I 0 N
 
         CITY OF DES MOINES,
 
                                                   D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by James Shelton 
 
         against the city of Des Moines, his self-insured employer.
 
         
 
              The case was heard and fully submitted on September 15, 1987 
 
         at Des Moines, Iowa.  The record in this proceeding consists of 
 
         testimony from James Shelton and Michael Peterson and joint 
 
         exhibits 1, 2 and 3.
 
         
 
                                      ISSUES
 
         
 
              The only issue presented by the parties is the extent of 
 
         claimant's permanent disability.  All other pertinent parts of 
 
         the case were established by stipulation.  The rate of 
 
         compensation is stipulated to be $235.67 per week.  It was 
 
         stipulated that claimant's entitlement to compensation for 
 
         temporary total disability or healing period commenced August 27, 
 
         1986 and ran through November 16, 1986 and has been fully paid.  
 
         It was stipulated that any permanent disability should be 
 
         compensated industrially and that, if awarded, it should commence 
 
         on November 16, 1986.
 
         
 
                            SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Only the evidence most pertinent to this decision is 
 
         discussed, but all of the evidence received at the hearing was 
 
         considered in arriving at this decision.  Conclusions about what 
 
         the evidence showed are inevitable with any summarization.  The 
 
         conclusions in the following summary should be considered to be 
 
         preliminary findings of fact.
 
         
 
              James Shelton is a 45-year-old divorced man.  He completed 
 
         the ; ninth grade in school, but has no further formal education 
 
         or vocational training.
 
              Since high school, claimant has performed a variety of jobs, 
 
         most of which have involved moderate or heavy physical exertion.
 
         
 
              Claimant was initially employed by the city of Des Moines in 
 
         approximately 1965 as a casual laborer.  He became full time in 
 
         approximately 1974 or 1975.  Throughout his term of full-time 
 
         employment, he has been classified as either a truck driver or a 
 

 
         
 
         
 
         
 
         SHELTON V. CITY OF DES MOINES
 
         Page   2
 
         
 
         laborer (exhibit 2, pages 10-55).  Claimant testified that he has 
 
         engaged in a variety of activities including operating an 
 
         endloader, mowing, trimming trees, shoveling snow and dirt and, 
 
         in general, a lot of lifting and carrying.  Claimant's evaluation 
 
         reports show that he was consistently graded as performing 
 
         satisfactorily overall, but there were a few instances where it 
 
         was indicated that improvement was needed (exhibit 2, pages 
 
         56-73).
 
         
 
              Shelton testified that, on August 26, 1986, he was riding a 
 
         lawn mower, mowing in the cemetery, when a tire hit a hole and 
 
         the mower flipped over.  Claimant testified that he twisted the 
 
         lower part of his back and experienced pain.  Claimant testified 
 
         that he reported the incident to his supervisor, John Lowe, and 
 
         was then sent to the health clinic.
 
         
 
              Claimant testified that he underwent x-rays and was treated 
 
         for a time at the health clinic, but was then referred to Scott 
 
         Neff, D.O.  Claimant testified that Dr. Neff told him his back 
 
         was deteriorating and sent him to therapy, but that the therapy 
 
         did no good.
 
         
 
              Claimant testified that he continues to experience pain in 
 
         his back that is sometimes sharp.  He stated that activities such 
 
         as lifting aggravate his back.  He has had no other medical 
 
         treatment since last seeing Dr. Neff.
 
         
 
              Claimant testified that he was released to return to 
 
         light-duty work in November, 1986.  He related that he went back 
 
         for three or four nights driving a dump truck, patrolling a 
 
         cemetery.  Claimant testified that truck driving did not violate 
 
         Dr. Neff's restrictions and that the roads in the cemetery are 
 
         asphalt.  He related that he would sometimes stop the truck, sit, 
 
         or get out and walk around if he felt the need.  He stated that 
 
         the sitting and bouncing made his back worse.  Claimant testified 
 
         he reported to his supervisor and to the health clinic that he 
 
         was unable to do that job.  Claimant related that nothing 
 
         happened with regard to his employment after that and that, since 
 
         he could not work, he resigned in January, 1987.
 
         
 
              Claimant denied having any back injuries prior to the time 
 
         he commenced employment with the city.  However, claimant 
 
         recalled having back problems off and on prior to hitting the 
 
         hole with the mower.  He stated that, while with the city, he 
 
         had.back injuries in 1975 and 1980 which affected the same 
 
         general area of his back, but that, on each occasion, he missed a 
 
         week or ten days of work and was able to return to work without 
 
         restriction.  Claimant testified that this injury is a lot worse 
 
         than the others.  He stated that he is unable to lift and that 
 
         his back starts to hurt if he walks as much as three blocks.
 
         
 
              Claimant testified that he has applied for Social Security 
 
         disability, but has not yet received a ruling.  He related that 
 
         he has not applied for unemployment because he was told he was 
 
         ineligible.
 
         
 
              Claimant testified that he does not think he could do any 
 
         job which he has held in the past.  He stated he is unable to sit 
 
         or stand for very long and that he lies down for a while every 
 
         day.  Claimant related that he has no office skills and that he 
 

 
         
 
         
 
         
 
         SHELTON V. CITY OF DES MOINES
 
         Page   3
 
         
 
         has not kept records or supervised others.
 
         
 
              Claimant related that he never inquired about or bid on any 
 
         other jobs with the city of Des Moines because he did not think 
 
         he would be able to do them.  He stated that he has not been to a 
 
         physician since he quit driving the dump truck.  He feels there 
 
         is nothing a doctor can do for him.
 
         
 
              Claimant testified that he has not asked to be seen by a 
 
         different physician.  He stated that he has not looked for work 
 
         because he feels he is unable to perform any work.
 
         
 
              Michael E. Peterson, safety and training administrator for 
 
         the city of Des Moines, testified that, on or about October 10, 
 
         1986, a light-duty release for claimant to return to work was 
 
         received from Dr. Neff.  Peterson stated that claimant was 
 
         assigned to work as a truck driver for a couple of days 
 
         performing security work since there had been a problem with 
 
         vandals at the cemetery.  Peterson stated that, on October 31, 
 
         Dr. Neff and James Blessman, M.D., released claimant to 
 
         light-duty work and a light-duty job was prepared which would 
 
         enable claimant to simply sit at the park entrance without doing 
 
         any driving, but that claimant never tried the job.  Peterson 
 
         testified that he also tried to get claimant light-duty work 
 
         painting park barrels, but that claimant never tried the job.
 
         
 
              Peterson stated that claimant was authorized sick leave and 
 
         vacation leave which provided pay through January 13, 1987 at 
 
         which time he was given an additional sixty days leave with 
 
         benefits.  Peterson stated that, on January 15, 1987, claimant 
 
         resigned.
 
         
 
              Peterson testified that it is the policy of the city of Des 
 
         Moines to place injured employees in positions they can 
 
         physically handle and that they have a good success rate in 
 
         placing injured employees.  Peterson felt that it became apparent 
 
         claimant did not.want to return to employment.
 
         
 
              In rebuttal, claimant testified that he was not informed of 
 
         the availability of a job painting park barrels or of changing 
 
         the patrol job so it would not require driving.
 
         
 
              The primary portion of claimant's medical care was  provided 
 
         by Dr. Neff, an orthopedic surgeon.  On October 27, 1986, Dr. 
 
         Neff indicated that claimant has degenerative disc disease, but 
 
         that it is not related to anything that happened at work.  He 
 
         indicated that it was simply the aging process and that claimant 
 
         had no permanent impairment which was due to his work.  He 
 
         recommended, however, that claimant perform only light work 
 
         (exhibit 1, pages 4 and 8).  On October 20, 1986, Dr. Neff 
 
         indicated that, while claimant does have degenerative disc 
 
         disease and should avoid heavy work, he was not disabled from all 
 
         gainful employment (exhibit 1, pages 3 and 7).
 
         
 
              In December, 1986, claimant was evaluated by Thomas Bower, a 
 
         licensed physical therapist.  Bower indicated that claimant did 
 
         not put forth good effort and that the results of the test do not 
 
         appear valid.  He indicated that there were indications claimant 
 
         was magnifying his symptoms substantially (exhibit 1, pages 
 
         12-17).
 

 
         
 
         
 
         
 
         SHELTON V. CITY OF DES MOINES
 
         Page   4
 
         
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              It was stipulated that claimant sustained an injury on 
 
         August 26, 1986 which arose out of and in the course of his 
 
         employment and that his entitlement to compensation for temporary 
 
         total disability, or healing period, runs from August 27, 1986 
 
         through November 16, 1986.  The primary issue of this case is 
 
         whether that injury produced any degree of permanent disability.
 
         
 
              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 
 
              occupational 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.
 
         
 
              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, 760-761 
 
         (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).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of August 26, 1986 is causally 
 
         related to the disability on which he now bases his claim.  
 

 
         
 
         
 
         
 
         SHELTON V. CITY OF DES MOINES
 
         Page   5
 
         
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
               However, expert medical evidence must be considered with 
 
         all other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              According to Dr. Neff, claimant's problem is a degenerative 
 
         condition which is due to aging.  Claimant has been extensively 
 
         tested and the diagnostic tests failed to disclose any basis for 
 
         his complaints other than the degenerative process, which Dr. 
 
         Neff has indicated is due to aging.  There is no direct medical 
 
         evidence in the record which relates claimant's current level of 
 
         complaints to the August 26, 1986 injury.  It is only claimant's 
 
         own complaints of an increased level of discomfort which support 
 
         his claim.  Having observed claimant's demeanor as he testified 
 
         and having considered the evidence from Dr. Neff and Mr. Bower, 
 
         claimant's testimony regarding the degree of his symptoms is 
 
         found to be unreliable.  There is no reliable evidence in the 
 
         record which shows the injury to have been anything other than a 
 
         temporary aggravation of a preexisting degenerative condition.  
 
         It is therefore found and concluded that claimant has failed to 
 
         prove by a preponderance of the evidence that the injuries he 
 
         sustained on August 26, 1986 produced any degree of permanent 
 
         functional physical impairment or any permanent physiological 
 
         change in his body.
 
         
 
              The employer offered claimant work that was within the 
 
         medically imposed restrictions, yet claimant failed to show up 
 
         for work or to make any bona fide efforts to retain his 
 
         employment.  The records show that, when he saw Dr. Neff on 
 
         October 1, 1986, he indicated that he had already applied for 
 
         Social Security disability.  Summarily stated, in a period of 
 
         approximately five weeks, he went from being gainfully employed 
 
         to a point that he apparently considered himself totally 
 
         disabled.  Claimant attempts to relate that change to what 
 
         appears to be a relatively minor incident of trauma that occurred 
 
         on August 26, 1986.  The evidence simply does not support 
 
         claimant's contentions.
 
         
 
              It is therefore found and concluded that claimant has failed 
 
         to prove by a preponderance of the evidence that there has been 
 
         any permanent change in his earning capacity as a result of the 
 
         August 26, 1986 injury.
 
         
 
         
 

 
         
 
         
 
         
 
         SHELTON V. CITY OF DES MOINES
 
         Page   6
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  On August 26, 1986, James Shelton was a resident of the 
 
         state of Iowa employed by the city of Des Moines, Iowa.
 
         
 
              2.  Shelton was injured on August 26, 1986 when a mower he 
 
         was operating struck a hole.
 
         
 
              3.  Shelton has failed to introduce evidence to show that 
 
         the injuries he sustained on August 26, 1986 were a substantial 
 
         factor in producing any permanent physical impairment in his 
 
         body, any permanent change in his physical health or any 
 
         permanent change in his earning capacity.
 
         
 
              4.  Having observed claimant's appearance and demeanor as he 
 
         testified and considering it in relation to the other evidence in 
 
         the record, his testimony is found to be unreliable.
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  The injury of August 26, 1986 produced only temporary 
 
         disability and claimant has been fully compensated for that 
 
         temporary disability.
 
         
 
              3.  Claimant has failed to prove by a preponderance of the 
 
         evidence that he sustained any permanent disability that was 
 
         proximately caused by the injuries he sustained on August 26, 
 
         1986.
 
         
 
              4. Claimant has failed to prove any entitlement to any 
 
         additional benefits under Chapter 85 of the Iowa Code.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that claimant take nothing from this 
 
         proceeding.
 
         
 
              IT IS FURTHER ORDERED that the costs of this action are 
 
         assessed against claimant pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              IT IS FURTHER ORDERED that the defendant file Claim Activity 
 
         Reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.
 
         
 
         
 
              Signed and filed this 22nd day of March, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                         MICHAEL G. TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 

 
         
 
         
 
         
 
         SHELTON V. CITY OF DES MOINES
 
         Page   7
 
         
 
         
 
         Mr. David Drake
 
         Attorney at Law
 
         West Towers Office Complex
 
         1200 35th Street, Suite 500
 
         West Des Moines, Iowa 50265
 
         
 
         Ms. Anne L. Clark
 
         Assistant City Attorney
 
         City Hall
 
         East lst & Locust
 
         Des Moines, Iowa 50307
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    1108, 1402.40, 1803
 
                                                    Filed March 22, 1988
 
                                                    MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         JAMES SHELTON,
 
         
 
              Claimant,
 
                                                  File No. 833568
 
         vs.
 
                                               A R B I T R A T I 0 N
 
         CITY OF DES MOINES,
 
                                                  D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         1108, 1402.40, 1803
 
         
 
              Claimant's claim for permanent partial disability was not 
 
         supported by a medical opinion providing a causal connection 
 
         between any disability and the injury which the employer 
 
         admitted.  Claimant's appearance and demeanor was observed and he 
 
         was found to be an unreliable witness.  It was held that claimant 
 
         had failed to prove by a preponderance of the evidence that he 
 
         sustained any degree of permanent disability whatsoever in the 
 
         injury which was the subject of the action.
 
 
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MAURICE A. EVERS,
 
         
 
              Claimant,
 
                                                File No. 833656
 
         vs.
 
                                             A R B I T R A T I O N
 
         BLUE STAR FOODS, INC.,
 
                                                D E C I S I O N
 
              Employer,
 
         
 
         and                                       F I L E D
 
         
 
         MARYLAND CASUALTY COMPANY,               JAN 23 1989
 
         
 
              Insurance Carrier,         IOWA INDUSTRIAL COMMISSIONER
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by claimant, 
 
         Maurice A. Evers, against Blue Star Foods, Inc., employer and 
 
         Maryland Casualty Company, insurance carrier, to recover benefits 
 
         as a result of an injury sustained on September 20, 1986.  This 
 
         matter came on for hearing before the undersigned deputy 
 
         industrial commissioner in Council Bluffs, Iowa, on November 14, 
 
         1988.
 
         
 
              The record consists of the testimony of claimant, Maurice 
 
         A.Evans, Mike Ahlers, certified vocational evaluation specialist 
 
         from Career Design, Inc.; joint exhibits 1 through 23b (medical), 
 
         24 through 27 (vocational rehabilitation), and 28 through 30 (tax 
 
         returns); and the deposition of Edward M. Schima, M.D.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report, the parties stipulated 
 
         that:
 
              
 
              1.  Claimant's rate of weekly compensation is $358.77;
 
              
 
              2.  Claimant did receive an injury arising out of and in the 
 
         course of his employment;
 
              
 
              3.  An injury occurred on September 20, 1986;
 
              
 
              4.  If permanent disability is found, claimant's injury is 
 
         to the body as a whole and should be rated industrially.
 
         
 
              5.  Claimant's entitlement to medical benefits under section 
 
         85.27 is not in dispute; and,
 
              
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              6.  There is to be credits of $3,901.40 healing period 
 
         benefits and $9,336.00 permanent partial disability benefits 
 
         (5%).
 
              
 
              The remaining issues for resolution are whether claimant is 
 
         entitled to any additional healing period benefits and the extent 
 
         of any permanent partial disability .
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant suffered an injury on September 20, 1986 while 
 
         driving a truck and trailer as an over-the-road driver for 
 
         defendant Blue Star Foods, Inc.  Claimant testified that the 
 
         truck hit a bump in the road at a bridge construction site and 
 
         claimant was bounced up and down in the truck cab.  Shortly 
 
         thereafter, claimant noticed headaches and numbness in his right 
 
         hand, differing in degree depending on what activities claimant 
 
         may be doing, which have continued since the injury to present.  
 
         Claimant sought medical help September 21, 1986 and was referred 
 
         by a medical doctor to a neurosurgeon, Behrouz Rassekh, M.D., who 
 
         diagnosed a C5 and C6 vertebra injury and suggested surgery.  Dr. 
 
         Anil K. Agarwal's diagnosis on claimant's September 24, 1986 exam 
 
         suggested therapy.  Claimant returned to work for two weeks in 
 
         October 1986, but claimant's complaints increased.
 
         
 
              Dr. Rassekh then did a myelogram on October 27, 1986 which 
 
         showed herniated disc at C5-C6.  On October 29, 1986, claimant 
 
         underwent anterior interbody fusion of C5-C6 vertebra and removal 
 
         of extruded disc surgery.  After surgery claimant testified he 
 
         continued to have similar but milder complaints, except for the 
 
         starting of numbness in his left hand.  Dr. Rassekh wrote on 
 
         November 7, 1986 that claimant's prognosis after his October 29, 
 
         1986 surgery was good.  Claimant stated that Dr. Rassekh released 
 
         him on December 5, 1986 to return to work with no work 
 
         restrictions.
 
         
 
              Claimant testified his return to work on December 29, 1986 
 
         increased his prior complaints of pain in his lower neck, 
 
         numbness in his right and left hand, and caused him difficulty in 
 
         adjusting truck visor by reaching above his head.  Claimant 
 
         indicated these complaints continued through his last work trip 
 
         November 19, 1987. Claimant's job with defendant employer ended 
 
         on November 21, 1987 when claimant delivered Dr. Rassekh's three 
 
         hours driving restrictions to defendant employer.  Claimant 
 
         stated he then saw Edward M. Schima, M.D., who recommended no 
 
         lifting above the head and three to four hours driving limit.
 
         
 
              Since November 21, 1987 claimant has made attempts to find 
 
         employment.  Claimant said he was receiving unemployment benefits 
 
         for seven months and needed two job contacts per week.  Claimant 
 
         acknowledges no other material accidents or injuries other than 
 
         the September 1986 incident.
 
         
 
              Claimant testified he graduated from high school and went 
 
         for two very short periods of time (a semester or less) to Iowa 
 
         Western College in 1985 and 1987.  Claimant indicated that in 
 
         1987, he went to college to further his education and to better 
 
         train himself for a greater variety of jobs.  Claimant stated he 
 
         depended on financing in order to go to school.  Claimant 
 
         acknowledged that additional training and education would still 
 
         be desirable and that this also was suggested by Mr. Mike Ahlers, 
 
         the vocational consultant.  Claimant said his prior government 
 
         loan default would prevent the necessary borrowing required for 
 
         school just as it did in 1987 when claimant was unable to 
 
         complete a semester as the result of funds being terminated.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Edward M. Schima, M.D., testified that the injury claimant 
 
         suffered on September 20, 1986 has caused claimant's permanent 
 
         impairment.  This doctor opined that claimant's physical 
 
         functional impairment is 10 percent of the whole man.  Dr. Schima 
 
         testified that he did not think claimant will be able to drive 
 
         long distances, and that strenuous work with both arms or working 
 
         with his arms above his head or shoulder area will also 
 
         exacerbate claimant's difficulties.  Dr. Schima stated that 
 
         claimant will require future treatment for the medical problems 
 
         he is experiencing which may be in the form of medication, muscle 
 
         relaxants, analgesics, non-steroidal agents or even physical 
 
         therapy, but he did not foresee any surgical intervention to 
 
         alleviate claimant's problems.
 
         
 
              Behrouz Rassekh, M.D., wrote:
 
         
 
                   When seen at the office on September 25, 1987, he was 
 
              released to return to his occupation as of October 05, 1987. 
 
              He telephoned the office on three occasions stating he still 
 
              had neck pain.  The patient returned to the office on 
 
              November 21, 1987, and continued to complain of neck pain 
 
              and some occipital pain, especially after driving for long 
 
              period of time.
 
         
 
                   As you know, this patient underwent anterior interbody 
 
              fusion for disc herniation.  Usually after this surgery, 
 
              there is some change in the motion of the cervical spine 
 
              after the fusion of two vertebrae which puts more stress on 
 
              the disc space above that.  Also, the constant driving would 
 
              be an aggravating factor to his problem.
 
         
 
                   The patient was advised it would be preferable if he 
 
              did not do long periods of driving which will cause him to 
 
              have more recurrent headache and neck problem and could also 
 
              possibly accelerate some of the disc degeneration above the 
 
              fusion.
 
         
 
         (Joint Exhibit 23, page 11)
 
         
 
              When Dr. Rassekh re-evaluated claimant on August 16, 1988, 
 
         he wrote:
 
         
 
                   This patient still has occasional headache and some 
 
              discomfort in the neck but no longer has any radicular pain. 
 
              He does have slight residual numbness.  The patient states 
 
              that driving and riding will increase the headache.
 
         
 
                 ....
 
         
 
                   On examination today, the patient has slight limitation 
 
              of neck motion, especially to the Right on extension; but, 
 
              no neurological deficit.  Reflexes are symmetrical.
 
         
 
              ...[T]he partial permanent functional disability was 
 
              estimated at 5% as a whole body due to some discomfort in 
 
              cervical region and some limitation of neck motion.  I do 
 
              believe the patient had reached maximum recovery from the 
 
              September 1986 injury and I do not anticipate any further 
 
              improvement of the neck motion and believe the disability of 
 
              5% remains the same.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
                   As far as the injury of September 1987, I do not 
 
              believe the patient has any partial permanent functional 
 
              disability as a result of that injury to the lumbar region.
 
         
 
              Charles Edwards, M.D., examined claimant on behalf of the 
 
         Division of Vocational Rehabilitation Services, Council Bluffs, 
 
         and wrote on April 20, 1988 that claimant "should be able to do 
 
         all activities of daily living.  Functional limitation would be 
 
         limited by his extreme obesity."
 
         
 
              Mr. Ahlers determined in his evaluation of claimant that 
 
         claimant could perform a variety of jobs considering the 20 
 
         pounds or less weight lifting restriction.  At the time of the 
 
         hearing, Ahlers testified that he.was not aware of claimant's 
 
         current restrictions, namely:  Not lifting over 75-100 pounds and 
 
         an eight hour driving limit.  Ahlers opined that claimant should 
 
         have been able to obtain employment after his recovery from the 
 
         injury, notwithstanding claimant's additional problems of 
 
         excessive weight--300 pounds, his felony conviction in 1982, and 
 
         long sideburns.  Ahlers stated that, pursuant to his most recent 
 
         evaluation of claimant, claimant has a 40 percent loss of earning 
 
         potential.  He suggested that claimant could anticipate an annual 
 
         income of $11,960 ($5.75 per hour) to $16,640 ($8.00 per hour). 
 
         Claimant's income at the time of injury was approximately 
 
         $27,000.00.
 
         
 
              It would appear from the exhibits and testimony that Ahlers 
 
         is making a decision of industrial disability on actual loss of 
 
         earnings rather than loss of earning capacity.  If not, the 
 
         deputy cannot determine how Ahlers is considering the various 
 
         factors on how he arrived at loss of earnings capacity.  For that 
 
         reason, Ahlers' opinion as to earning capacity is given little 
 
         weight.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 
 
         257 (1963).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              A treating physician's testimony is not entitled to greater 
 
         weight as a matter of law than that of a physician who later 
 
         examines claimant in anticipation of litigation.  Weight to be 
 
         given testimony of physician is a fact issue to be decided by the 
 
         industrial commissioner in light of the record the parties 
 
         develop.  In this regard, both parties may develop facts as to 
 
         the physician's employment in connection with litigation, if so; 
 
         the physician's examination at a later date and not when the 
 
         injuries were fresh; the arrangements as to compensation; the 
 
         extent and nature of the physician's examination; the physician's 
 
         education, experience, training, and practice; and all other 
 
         factors which bear upon the weight and value of the physician's 
 
         testimony may be considered.  Both parties may bring all this 
 
         information to the attention of the fact-finder as either 
 
         supporting or weakening the physician's testimony and opinion.  
 
         All factors go to the value of the physician's testimony as a 
 
         matter of fact not as a matter of law.  Rockwell Graphic Systems, 
 
         Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985).
 
         
 
              Iowa Code section 85.34(l) provides that if an employee has 
 
         suffered a personal injury causing permanent partial disability, 
 
         the employer shall pay compensation for a healing period from the 
 
         day of the injury until (1) the employee returns to work; or (2) 
 
         it is medically indicated that significant improvement from the 
 
         injury is not anticipated; or (3) until the employee is medically 
 
         capable of returning to substantially similar employment.
 
         
 
              The healing period may be characterized as that period 
 
              during which there is reasonable expectation of improvement 
 
              of the disabling condition," and ends when maximum medical 
 
              improvement is reached.  Boyd v. Hudson Pulp & Paper Corp., 
 
              177 So.2d 331, 330 (Fla. 1965).  That is, it is the period 
 
              "from the time of the injury until the employee is as far 
 
              restored as the permanent character of his injury will 
 
              permit.  "Winn Drilling Company v. Industrial Commissioner, 
 
              32 Ill.2d 144, 145-6, 203 N.E.2d 904,905-6 (1965).  See also 
 
              W. Schneider, Schneider's Workman's Compensation, section 
 
              2308 (1957).  Thus, the healing period generally terminates 
 
              "at the time the attending physician determines that the 
 
              employee has recovered as far as possible from the effects 
 
              of the injury.  Winn, 203 N.E. at 906.
 
         
 
         Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60, 65 (Iowa 
 
         1981).
 
         
 
              Claimant has been paid 10.87 weeks healing period benefits 
 
         totaling $3,901.40 for the period September 24, 1986 through 
 
         October 5, 1986, October 9, 1986 through October 11, 1986, and 
 
         October 24, 1986 through December 28, 1986.
 
         
 
              Dr. Rassekh, claimant's original treating neurosurgeon, 
 
         opined a functional disability to 5 percent of the body as a 
 
         whole.  Although this doctor used the word "disability," from the 
 
         total record, the undersigned believes he meant "impairment."
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Dr. Schima, a neurosurgeon who first became involved with 
 
         the claimant on March 31, 1988 and had a follow-up November 7, 
 
         1988, opined a functional impairment of 10 percent to the body as 
 
         a whole.
 
         
 
              Mike Ahlers, a vocational rehabilitation evaluation 
 
         specialist, opined a 40 percent loss of earning potential.  
 
         Ahlers testified he anticipated claimant's annual income 
 
         potential at $5.75 per hour or $11,960 to $8.00 per hour or 
 
         $16,640 per year compared to claimant's approximate $27,000 
 
         annual income at the time of the injury on September 20, 1986.
 
         
 
              This 40 year old claimant lacks motivation although an 
 
         injury of this nature can contribute to this attitude.  Ahlers 
 
         seemed surprised that claimant has not found work at this time 
 
         under any scenario.  Claimant has a felony record.  This was not 
 
         dwelled upon by claimant for obvious reasons, but it seems 
 
         obvious that this contributes to the unemployability of the 
 
         claimant. Claimant's weight and sideburns effect on employability 
 
         has been alluded to in the testimony and records.  
 
         Nothwithstanding suggestions to claimant to modify his sideburns 
 
         and lose weight, claimant seems by his actions not be concerned 
 
         about these two items or at least chooses not to take hint from 
 
         the doctors or vocational rehabilitation specialist as to the 
 
         possibility that these conditions may add to his employment 
 
         difficulties that already exist.  Claimant's attitude in regards 
 
         to his weight and sideburns demonstrates his lack of motivation.  
 
         Also contributing to the claimant's non-injury problems is his 
 
         government-guaranteed loan default which cut off his rights to 
 
         financial aid in the middle of the school semester in 1987.  This 
 
         default is not contributing to claimant's attempts to better 
 
         himself.  This problem is no fault of the employer.
 
         
 
              Prior to his injury on September 20, 1986, claimant 
 
         testified he had a number of jobs, some usually lasting for less 
 
         than a year except for two lasting a little over one year.  
 
         Claimant indicated his work experience is mostly as a truck 
 
         driver and a majority of that experience as a long haul, 
 
         over-the-road driver in which he experiences eight to ten hours 
 
         of driving at a time.
 
         
 
              Taking all the evidence into consideration, the claimant has 
 
         an industrial disability in the amount of 25 percent.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, it is found:
 
         
 
              1.  Claimant was injured while working for defendant 
 
         employer on September 20, 1986.
 
         
 
              2.  As a result of his September 20, 1986 injury, claimant 
 
         has permanent impairment.
 
         
 
              3.  Claimant has not worked since November 21, 1987.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              4.  Claimant has incurred a loss of earning capacity of 25 
 
         percent as a result of his injury.
 
         
 
              5.  Claimant's healing period ended when he returned to work 
 
         on December 29, 1986.
 
         
 
                               CONCLUSIONS  OF  LAW
 
         
 
              THEREFORE, it is concluded:
 
         
 
              Claimant has sustained an industrial disability of 25. 
 
         percent to the body as a whole.
 
         
 
              Claimant's healing period ended December 29, 1986.
 
         
 
                                      ORDER
 
              
 
              THEREFORE, it is ordered:
 
         
 
              That claimant is entitled to one hundred twenty-five (125) 
 
         weeks of permanent partial disability benefits at the rate of 
 
         three hundred fifty-eight and 77/100 dollars ($358.77) per week.
 
         
 
              That claimant is entitled to healing period benefits for the 
 
         period September 24, 1986 through October 5, 1986, October 9, 
 
         1986 through October 11, 1986, and October 24, 1986 through 
 
         December 28, 1986.
 
         
 
              That defendants shall pay accrued weekly benefits in a lump 
 
         sum, and shall receive credit against the award for weekly 
 
         benefits previously paid.
 
         
 
              That defendants shall pay interest on benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              That defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants shall file an activity report upon payment 
 
         of this award as required by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 23rd day of January, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            BERNARD J. O'MALLEY
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         Mr. John M. McHale
 
         Attorney at Law
 
         233 Pearl St
 
         P.O. Box 1078
 
         Council Bluffs, IA  51502
 
         
 
         Mr. Philip Willson,
 
         Attorney at Law
 
         370 Midlands M11
 
         Council Bluffs, IA  51502
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                           1802; 1803
 
                                            Filed January 23, 1989
 
                                            Bernard J. O'Malley
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MAURICE A. EVERS,
 
         
 
              Claimant,
 
                                                  File No. 833656
 
         vs.
 
         
 
         BLUE STAR FOODS, INC.,                  A R B I T R A T I 0 N
 
         
 
              Employer,                           D E C I S I 0 N
 
         
 
         and
 
         
 
         MARYLAND CASUALTY COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1802; 1803
 
         
 
              Claimant suffered a back injury while driving a truck. 
 
         Claimant, who was a convicted felon, met burden of proof and was 
 
         awarded 25 percent permanent partial disability to the body as a 
 
         whole.  Motivation was a factor.  Claimant's injury resulted in a 
 
         fusion of C5-C6 vertebrae.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         CAROLYN J. BREWER
 
         f/k/a CAROLYN J. BROWN,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                File No.  833703
 
         
 
         ROLSCREEN COMPANY,
 
                                             A R B I T R A T I 0 N
 
              Employer,
 
                                                D E C I S I 0 N
 
         and
 
         
 
         EMPLOYERS MUTUAL COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Carolyn J. 
 
         Brewer, f/k/a Carolyn J. Brown, claimant, against Rolscreen 
 
         Company, employer, hereinafter referred to as Rolscreen, and 
 
         Employers Mutual Companies, insurance carrier, defendants, for 
 
         workers' compensation benefits as a result of an alleged injury 
 
         on September 15, 1986.  On June 2, 1988, a hearing was held on 
 
         claimant's petition and the matter was considered fully submitted 
 
         upon the close of this hearing.
 
         
 
              The parties have submitted a pre-hearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing from claimant and David 
 
         Plumb.  The exhibits received into evidence at the hearing are 
 
         listed in the pre-hearing report.
 
         
 
              According to the pre-hearing report, the parties have 
 
         stipulated to the following matters:
 
         
 
              1.  If defendants are liable for the alleged work injury, 
 
         claimant is entitled to temporary total disability or healing 
 
         period benefits from September 15, 1986 to October 8, 1987;
 
         
 
              2.  If the injury is found to have caused permanent 
 
         disability, the type of disability is an industrial disability 
 
         to the body as a whole;
 
         
 
              3.  If permanent disability benefits are awarded herein, 
 
         they shall begin as of October 8, 1987;
 
              
 
              4.  With reference to claimant's rate of weekly 
 

 
         
 
         
 
         
 
         BREWER V. ROLSCREEN COMPANY
 
         PAGE   2
 
         
 
         compensation in the event of an award of weekly benefits from 
 
         this proceeding, claimant was single and entitled to two 
 
         exemptions at the time of the alleged injury; and,
 
         
 
              5.  With reference to the medical bills listed in the 
 
         pre-hearing report and requested at the hearing, it is agreed 
 
         that the provider would testify that the applicable charges 
 
         were fair and reasonable and defendants are not offering 
 
         contrary evidence.  Also, it is agreed that these expenses are 
 
         causally connected to the back condition upon which the claim 
 
         is based, but that the issue of their causal connection to any 
 
         work injury remains an issue to be decided herein.
 
         
 
                                   ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
              I.  Whether claimant received an injury arising out of and 
 
         in the course of employment;
 
         
 
             II.  Whether there is a causal relationship between the work 
 
         injury and the claimed disability;
 
         
 
            III.  Whether the claim is barred by a failure to give notice 
 
         under Iowa Code section 85.23;
 
         
 
             IV.  The extent of claimant's entitlement to weekly benefits 
 
         for disability;
 
         
 
              V.  Claimant's gross weekly earnings; and,
 
         
 
             VI.  The extent of claimant's entitlement to medical 
 
         benefits.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Pursuant to order of the undersigned, both parties have 
 
         submitted a "Summary of Facts Relied Upon."  These summaries are 
 
         attached and made a part hereof.  Whether or not specifically 
 
         referred to in these summaries, or in the undersigned's very 
 
         brief overview of the facts, all of the evidence received at the 
 
         hearing was independently reviewed and considered in arriving at 
 
         this decision.
 
         
 
              Briefly, claimant is a 41-year-old worker who was employed 
 
         as an assembly operator in a manufacturing plant operated by 
 
         Rolscreen for almost 10 years.  Rolscreen manufactures windows 
 
         and screens.  Before this claim, claimant had two prior 
 
         compensable injuries to her left wrist and elbow from overuse 
 
         syndrome during operation of a power screwdriver for which she 
 
         received compensation.  As a result of those injuries, her 
 
         physicians imposed a 15-pound lifting restriction in 1985.
 

 
         
 
         
 
         
 
         BREWER V. ROLSCREEN COMPANY
 
         PAGE   3
 
         
 
         
 
              Claimant bases her claim in this proceeding upon a low back 
 
         condition which allegedly occurred gradually from cumulative 
 
         trauma at work.  The injury date alleged coincides with 
 
         claimant's last day at work at Rolscreen.  Claimant testified 
 
         that, although her work was for the most part not heavy, it was 
 
         very rapid, repetitive work.  However, she stated that at times 
 
         she would be required to lift in excess of her 15-pound 
 
         restriction to perform her assigned duties.  Claimant now has 
 
         similar restrictions imposed due to her current back condition.
 
         
 
              Claimant has not worked in any capacity since leaving 
 
         Rolscreen on September 15, 1986 upon the advice of her 
 
         physicians.  Claimant, however, is currently volunteering her 
 
         time to acquire secretarial and receptionist skills which she 
 
         hopes will lead to future employment.
 
         
 
              The dispute in this case involving gross weekly earnings 
 
         consists of whether or not the annual Christmas bonus should be 
 
         included in the rate.  Claimant testified that the bonus was 
 
         regular and guaranteed for all employees at Rolscreen.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that claimant received an injury which arose out of and 
 
         in the course of employment.  The words "out of" refer to the 
 
         cause or source of the injury.  The words "in the course of" 
 
         refer to the time and place and circumstances of the injury.  
 
         See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 
 
         1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).  An employer takes an employee subject to any 
 
         active or dormant health impairments, and a work connected injury 
 
         which more than slightly aggravates the condition is considered 
 
         to be a personal injury.  Ziegler v. United States Gypsum Co., 
 
         252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited 
 
         therein.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the work injury is a cause of the claimed 
 
         disability.  A disability may be either temporary or permanent.  
 
         In the case of a claim for temporary disability, the claimant 
 
         must establish that the work injury was a cause of absence from 
 
         work and lost earnings during a period of recovery from the 
 
         injury.  Generally, a claim of permanent disability invokes an 
 
         initial determination of whether the work injury was a cause of 
 
         permanent physical impairment or permanent limitation in work 
 
         activity.  However, in some instances, such as a job transfer 
 
         caused by a work injury, permanent disability benefits can be 
 
         awarded without a showing of a causal connection to a physical 
 
         change of condition.   Blacksmith v. All-American, Inc., 290 
 
         N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 288 
 
         N.W.2d 181 (Iowa 1980).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 

 
         
 
         
 
         
 
         BREWER V. ROLSCREEN COMPANY
 
         PAGE   4
 
         
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient along to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Asse 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966)   
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In the case sub judice, claimant asserts that her back 
 
         condition in September, 1986 was the result of her work at 
 
         Rolscreen.  Two physicians have rendered opinions on this matter.  
 
         Robert C. Jones, M.D., a neurosurgeon who treated claimant in 
 
         late 1986 and in 1987, opines that claimant has a ten percent 
 
         permanent partial impairment due to her back problem and states 
 
         as follows: "[O]f course, this has to be related to her 
 
         industrial capacity." The doctor's choice of words in this 
 
         statement is confusing.  The statement can be interpreted to mean 
 
         either that the impairment is related to her work or that the 
 
         impairment affects her capacity to perform her job.  
 
         Unfortunately, Dr. Jones provided no further explanation in the 
 
         record.
 
         
 
              J. N. Weinstein, M.D., an orthopaedic surgeon representing 
 
         the Spine Diagnostic and Treatment Center in the Department of 
 
         orthopaedic Surgery at the University of Iowa Hospitals and 
 
         Clinics, opines that claimant has a six percent permanent partial 
 
         impairment and relates this impairment to her work.  However, the 
 
         report dated October 7, 1987 from Dr. Weinstein states in part as 
 
         follows:
 
         
 
              Your back condition was not present prior to the injury 
 
              on September 15, 1986.  In this sense, the injury has 
 
              caused your condition.
 
         
 
         In an earlier report of August 12, 1987, Dr. Weinstein reports 
 
         that claimant stated to him that "she was injured in August, 1986 
 
         while lifting and reaching a sliding glass storm window."
 
         
 
              There is no way of knowing from the above statements whether 
 
         or not the University of Iowa clinic staff was basing their 
 
         opinion upon a history of a single, sudden traumatic event or 
 
         upon a gradual or cumulative onset of symptoms culminating in the 
 
         event of September, 1986.  These opinions are being made against 
 
         a backdrop of a history of chronic back problems beginning in 
 
         May, 1986 with complaints of right-sided upper and lower back 
 
         pain.  Also, claimant has a history of back pain and leg pain 
 

 
         
 
         
 
         
 
         BREWER V. ROLSCREEN COMPANY
 
         PAGE   5
 
         
 
         complaints as early as May, 1980, according to the health records 
 
         at Rolscreen.
 
         
 
              As stated in the McKeever case, a gradual injury theory is 
 
         established primarily by supportive medical opinion.  
 
         Unfortunately, clear supportive medical opinions are lacking in 
 
         this case.  Claimant's own testimony indicates that she did not 
 
         perform heavy work at Rolscreen.  Also, there is no particular 
 
         incident that stands out as a causative, precipitating factor.  
 
         Therefore, the lay facts alone in this case are insufficient to 
 
         set up the cumulative trauma theory.  Given her prior history of 
 
         pain, this agency must rely heavily upon the opinions of experts.  
 
         In this case, both experts were confusing in their opinions to 
 
         the extent that claimant has not carried her burden of proof to 
 
         show that her back problem was caused by work activity rather 
 
         than as a natural consequence of the aging process.  Claimant 
 
         likewise has not shown that her work worsened or "lighted up" the 
 
         underlying back condition.
 
         
 
              Claimant has only shown that she experienced various pain 
 
         and strains during work activity between May and September, 1986, 
 
         leading to a loss of her job.  Although this may be sufficient to 
 
         demonstrate a series of repetitive injuries, unless it is shown 
 
         that those injuries led to permanent impairment rather than 
 
         simply a symptom of pain from an aggravation of a naturally 
 
         occurring, underlying condition, any ensuing permanent disability 
 
         is not compensable.  However, any loss of work to recover from 
 
         the temporary aggravation and any medical expenses to treat and 
 
         evaluate the temporary injury would be compensable.  In this 
 
         case, the most recent work activity in September, 1986 clearly 
 
         caused temporary disability for the period of time stipulated in 
 
         the pre-hearing report.  It is necessary in the treatment of any 
 
         injury to undergo extensive diagnostic evaluations.  Therefore, 
 
         the medical expenses requested will be awarded to claimant.
 
         
 
              Defendants have raised the issue of lack of notice of the 
 
         work injury within 90 days from the date of the occurrence of the 
 
         injury under Iowa Code section 85.23.  Lack of such notice is an 
 
         affirmative defense.  DeLong v. Iowa State Highway Commission, 
 
         229 Iowa 700, 295 N.W. 91 (1940).  In Reddick v Grand Union Tea 
 
         Co., 230 Iowa 108, 196 N.W. 800 (1941), the Iowa Supreme Court 
 
         has held that, once claimant sustains the burden of showing that 
 
         an injury arose out of and in the course of employment, claimant 
 
         prevails unless defendant can prove, by a preponderance of the 
 
         evidence, an affirmative defense.  Although an employer may have 
 
         actual knowledge of an injury, the actual knowledge requirement 
 
         under Iowa Code section 85.23 is not satisfied unless the 
 
         employer has information putting him on notice that the injury 
 
         may be work-related.  Robinson v. Department of Transp., 296 
 
         N.W.2d 809, 811 (Iowa 1980).  The time period for notice of claim 
 
         does not begin to run until claimant as a reasonable person 
 
         should recognize the nature, seriousness and probable compensable 
 
         character of the injury or disease.  Robinson, Id.  An employee 
 
         may provide information to an employer at the time of injury 
 
         which would satisfy the actual knowledge notice requirement under 
 
         Iowa Code section 85.23 without nullifying its right to benefits 
 
         under the discovery rule.  Dillinger v. City of Sioux City, 368 
 
         N.W.2d 176, 180 (Iowa 1985).
 
         
 
              In the case sub judice, defendants have not shown that they 
 

 
         
 
         
 
         
 
         BREWER V. ROLSCREEN COMPANY
 
         PAGE   6
 
         
 
         lacked timely notice.  The most recent work activity relating to 
 
         temporary total disability and medical expenses was September 15, 
 
         1986 and the first report of injury to this agency was filed by 
 
         defendants on September 30, 1986.
 
         
 
              Defendants finally contend that claimant's gross weekly 
 
         wages should not include the Christmas bonus.  The employment 
 
         brochure submitted into evidence indicates that the bonus is 
 
         regular and guaranteed as long as the worker remains employed at 
 
         Rolscreen.. This is not an irregular bonus excluded from the 
 
         definition of gross earnings under Iowa Code section 85.61(12).  
 
         It was agreed that claimant was working 45 hours per week at the 
 
         time of the work injury and claimant was single and entitled to 
 
         two exemptions on the date of injury.  Given claimant's hourly 
 
         rate with a bonus of $10.42 per hour, claimant's gross weekly 
 
         earnings calculate to the sum of $468.90 on the date of injury.  
 
         Claimant's rate of compensation according to the commissioner's 
 
         rate book for this injury is $274.15 per week.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  On September 15, 1986, claimant suffered an injury to 
 
         the low back which arose out of and in the course employment with 
 
         Rolscreen.  The injury, however, was shown to be only a temporary 
 
         aggravation of a preexisting low back condition.  Claimant failed 
 
         to show that this or any of the prior injuries consisting of pain 
 
         and sprains while working at Rolscreen between May and September, 
 
         1986 resulted in permanent impairment.  Claimant's work at 
 
         Rolscreen was for the most part light assembly work involving 
 
         lifting of materials less than 15 pounds, but on a repetitive 
 
         basis.
 
         
 
              2.  The work injury of September 15, 1986 was a cause of the 
 
         medical expenses listed in the pre-hearing report which total 
 
         $10,113.40 plus mileage expenses in the amount of $619.50.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         entitlement to the disability and medical benefits awarded 
 
         below.
 
         
 
                                      ORDER
 
         
 
              1.  Claimant's claim for permanent disability benefits is 
 
         denied.
 
         
 
              2.  Defendants shall pay to claimant temporary total 
 
         disability benefits from September 15, 1986 through October 7, 
 
         1987 at the rate of two hundred seventy-four and 15/100 dollars 
 
         ($274.15) per week.
 
         
 
              3.  Defendants shall pay claimant the medical expenses 
 
         including mileage expenses listed in the pre-hearing report.  
 
         This payment shall be made directly to the provider unless 
 
         claimant demonstrates that she has paid the expenses.  However, 
 
         claimant's attorney shall have a lien upon such monies collected 
 
         herein for his fees which shall be prior to any direct payment to 
 
         providers.
 
         
 

 
         
 
         
 
         
 
         BREWER V. ROLSCREEN COMPANY
 
         PAGE   7
 
         
 
              4.  Defendants shall receive credit for previous payments of 
 
         benefits and other payments under a nonoccupational group 
 
         insurance plan pursuant to Iowa Code section 85.38(2) as 
 
         stipulated in the pre-hearing report.
 
         
 
              5.  Defendants shall pay interest on the weekly benefits 
 
         awarded herein as set forth in Iowa Code section 85.30.
 
         
 
              6.  Defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              7.  Defendants shall file Claim Activity Reports on the 
 
         payment of this award as requested by this agency pursuant to 
 
         Division of Industrial Services Rule 343-3.1.
 
         
 
         
 
                Signed and filed this 17th day of November, 1988.
 
         
 
         
 
         
 
         
 
                                          LARRY P.WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Harold B. Heslinga
 
         Attorney at Law
 
         118 North Market Street
 
         Oskaloosa, Iowa 52577
 
         
 
         Mr. William L. Dawe
 
         Attorney at Law
 
         1100 Des Moines Building
 
         Des Moines, Iowa 50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                1802, 1803
 
                                                Filed November 17, 1988
 
                                                LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CAROLYN J. BREWER
 
         f/k/a CAROLYN J. BROWN,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                File No. 833703
 
         ROLSCREEN COMPANY,
 
                                             A R B I T R A T I 0 N
 
              Employer,
 
                                                D E C I S I 0 N
 
         and
 
         
 
         EMPLOYERS MUTUAL COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1802, 1803
 
         
 
              Due to a lack of clear, supportive medical opinion, claimant 
 
         failed to carry her burden of proof and was denied permanent 
 
         partial disability benefits.  However, claimant did show at least 
 
         a temporary aggravation of her prior existing condition and 
 
         temporary total disability and medical benefits were awarded 
 
         accordingly.