BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROGER CHESHIRE
 
         
 
              Claimant,                             File No. 834891
 
         
 
         vs.                                    A R B I T R A T I O N
 
         
 
         THE CAIRO-TOUCH, INC.,
 
                                                    D E C I S I 0 N
 
              Employer,
 
              Defendant.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Roger 
 
         Cheshire, claimant, against The Cairo-Touch, Inc., employer, to 
 
         recover benefits under the Iowa Workers' Compensation Act as a 
 
         result of an alleges injury sustained August 26, 1986.  This 
 
         matter came on for hearing before the undersigned deputy 
 
         industrial commissioner May 4, 1988.  The record was considered 
 
         fully submitted at the close of the hearing.  The record in this 
 
         case consists of the testimony of the claimant and claimant's 
 
         exhibits 1 through 28, inclusive.
 
         
 
              An examination of the industrial commissioner's file reveals 
 
         an original notice and petition was filed May 5, 1987 and 
 
         delivered to defendant on May 9, 1987, return receipt requested, 
 
         alleging an injury occurring August 26, 1986.  No answer to the 
 
         original notice and petition was filed.  Claimant thereafter 
 
         filed a motion for default.  In response thereto, on October 22, 
 
         1987, Deputy industrial Commissioner Larry P. Walshire ordered 
 
         defendant to file an answer to claimant's petition within 20 days 
 
         after the date of the order.  Records show defendant received 
 
         that order October 23, 1985 and no answer to claimant's petition 
 
         was thereafter filed.  On December 2, 1987, Deputy Industrial 
 
         Commissioner Walshire ordered "Under the authority of Division of 
 
         industrial Services Rule 343-4.36, the record is closes to 
 
         further evidence or activity by defendant."  Claimant argues that 
 
         therefore all aspects of the liability of the employer for the 
 
         injury are determined against the employer asserting a default 
 
         judgment for failure to timely respond to an original notice and 
 
         petition has been issued against the employer.  Claimant cites to 
 
         Sherwood v. Collins Radio Company, 33 Biennial Report of the 
 
         Industrial Commissioner 66 (1978).  However, no a default 
 
         judgment was entered in this case and therefore the Sherwood case 
 
         is not controlling herein.
 
         
 
                                  ISSUES
 
         
 
              Pursuant to the hearing assignment order,.the following 
 
         issues were presented for determination:
 
         
 
              1.  Whether claimant sustained an injury which arose out of 
 

 
         
 
         
 
         
 
         CHESHIRE V. THE CAIRO-TOUCH, INC.
 
         PAGE   2
 
         
 
         and in the course of his employment;
 
         
 
              2.  Whether there is a causal relationship between the 
 
         alleged injury and the disability;
 
         
 
              3.  Whether claimant is entitled to temporary total 
 
         disability/healing period benefits or permanent partial 
 
         or.permanent total disability benefits;
 
         
 
              4.  The appropriate rate; and
 
         
 
              5.  Iowa Code section 85.27 benefits.
 
         
 
              At the time of hearing, claimant asserted that he is 
 
         preserving the right to pursue additional benefits for permanent 
 
         partial disability in a review-reopening proceeding and is not 
 
         currently seeking benefits for permanent partial disability.  
 
         However, pursuant to the hearing assignment order, this matter 
 
         has not been bifurcated and therefore must be determined.  In 
 
         addition, claimant has requested an independent medical 
 
         examination pursuant to Iowa Code section 85.39.  However, this 
 
         issue was not raised on the hearing assignment order.  Pursuant 
 
         to the industrial commissioner's decision in Joseph Presswood v. 
 
         Iowa Beet Processors, (Appeal Decision filed November 14, 1986), 
 
         holding an issue not noted on the hearing assignment order is 
 
         waives, the undersigned has no jurisdiction to consider 
 
         claimant's request for an independent medical examination under 
 
         Iowa Code section 85.39.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Defendant, who operated a cleaning service, first employed 
 
         claimant in May 1986 to work as a janitor at a rate of pay of 
 
         $4.30 per hour for 40 hours work per week.  Claimant testified he 
 
         sustained ah injury on August 26, 1986 when a piece of a floor 
 
         buffer (see Exhibit 28) hit his right heel causing swelling.  
 
         Claimant recalled he advised his supervisor of the injury and, 
 
         when he was not told where to seek medical attention, presented 
 
         himself at Broadlawns Medical Center emergency room.  Claimant 
 
         testifies that x-rays were taken and that he was told that 
 
         although it was probable nothing was broken, the heel was too 
 
         swollen to be sure.  Claimant testified he was advised to stay 
 
         off his feet for approximately five days and that when he 
 
         contacted the employer to relay this information on August 27, 
 
         1986, he was advised lie had been replaced.
 
         
 
              Claimant testified he continued to experience pain and leg 
 
         discomfort and that eventually as a result of trying to favor his 
 
         right leg by putting more weight on his left leg, his left leg, 
 
         which was already shorter and weaker than the right leg as a 
 
         result of a compound fracture when he was seven years old, began 
 
         to become extremely sore.  Claimant denied any other problems 
 
         with his left leg since the fracture asserting that he had always 
 
         depended on his right leg for additional support.  Claimant 
 
         testified that medication was prescribed during regular checkups 
 
         at Broadlawns Medical Center which eased the pain and that he was 
 
         eventually released to return to work without any restrictions or 
 
         limitations on April 17, 1987, although he is still under medical 
 
         care.  Claimant therefore requests temporary total 
 
         disability/healing period benefits for the period from August 26, 
 

 
         
 
         
 
         
 
         CHESHIRE V. THE CAIRO-TOUCH, INC.
 
         PAGE   3
 
         
 
         1986 to April 15, 1987.
 
         
 
              The medical records of Broadlawns Medical Center reveal 
 
         claimant was first seen in the emergency room less than one hour 
 
         after his injury with mild tenderness at the insertion of the 
 
         achilles tendon but with no obvious deformity or swelling noted. 
 
          The impression on that visit was of a soft tissue injury to the 
 
         posterior right ankle and with instructions regarding weight 
 
         bearing, icing and heat.  Claimant was given a release to return 
 
         to work for the following day, August 27, 1986.  When claimant 
 
         next presented himself for treatment on December 22, 1986, he was 
 
         noted to be walking with a cane and complaining of continued 
 
         right heel pain.  Medical records of this date refer to an injury 
 
         to the left leg in September 1986 and that the leg was badly 
 
         bruised at that time and was still sore behind the left knee.  
 
         Claimant was found to have full range of motion in both lower 
 
         extremities and was diagnosed as having tendonitis of the right 
 
         achilles tendon and left calf.  Claimant was instructed to 
 
         continue with anti-inflammatory medication and muscle creams.  
 
         Claimant was subsequently seen at Broadlawns January 27, 1987 for 
 
         a recheck of leg pain with tender right hamstring tendons; on 
 
         March 4, 1987, for left leg pain; on April 15, 1987, for left leg 
 
         pain at which time claimant was advised to work as much as 
 
         possible; on May 11, 1987, for left leg pain; on June 29, 1987, 
 
         for left leg pain; on September 24, 1987, for medication refill 
 
         with a notation that leg pain is decreased; on January 25, 1988, 
 
         for left leg pain and medication refill; on February 8, 1988, for 
 
         left leg pain noted to be "about the same" with no other 
 
         problems.  Bery Engebretsen, M.D., noted that after claimant's 
 
         examination on January 21, 1987, there was no further mention of 
 
         right achilles tendon pain and that examinations have been 
 
         consistently normal, with no abnormal findings noted.  On March 
 
         17, 1988, Dr. Engebretsen wrote to claimant's counsel:
 
         
 
              In answer to your tour specific questions, I hope the 
 
         following is useful:
 
         
 
              1.  He was temporarily disabled according to our 
 
              records for one day, from 8/26/86 to 8/27/87.
 
              2.  I have no information as to the amount of time that 
 
              he was off work.
 
         
 
              3.  One would expect that maximum medical recovery 
 
              should occur within 4-6 weeks after a soft tissue 
 
              injury. (Obviously he is still complaining of pain 
 
              although we can document no objective findings.)
 
         
 
              4.  We have no objective evidence of any permanent 
 
              impairment.
 
         
 
         (Claimant's Exhibit 23)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant must prove by a preponderance of the evidence that 
 
         his injury arose out of and in the course of his employment. 
 
         Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 
 
         (1967).  In the course of employment means that claimant must 
 
         prove his injury occurred at a place where he reasonably may be 
 
         performing his duties.  McClure v. Union, et al., Counties, 188 
 

 
         
 
         
 
         
 
         CHESHIRE V. THE CAIRO-TOUCH, INC.
 
         PAGE   4
 
         
 
         N.W.2d 283 (1971).  Arising out of suggests a causal relationship 
 
         between the employment and the injury.  Crowe v. DeSoto Consol. 
 
         Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).  Although serious 
 
         questions abound with regard to claimant's credibility (as will 
 
         be discussed below), claimant's testimony that he was hit in the 
 
         right heel with a piece of a floor buffer is unrefuted in the 
 
         record.  Therefore, it is accepted claimant sustained an injury 
 
         which arose out of and in the course of his employment while he 
 
         was performing his regular duties on August 26, 1986.
 
         
 
              In addition to the injury to his right heel, claimant 
 
         asserts that he developed left leg pain as a result of the right 
 
         heel pain.
 
         
 
              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.  
 
         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).
 
         
 
              Claimant has failed to establish a causal connection between 
 
         the left leg pain and the injury which arose out of and in the 
 
         course of his employment.  While, claimant argues that he 
 
         sustained a compound fracture to his left leg when he was seven 
 
         years and had no other trauma to the area, the medical records of 
 
         Broadlawns Medical Center do not substantiate this allegation.  
 
         Dr. Engebretsen refers to an injury to the left leg in September 
 
         and that the leg was badly bruised at that time and was still 
 
         sore behind the left knee.  The undersigned does not find 
 
         claimant's testimony with regard to this issue to be credible.  
 
         Examinations performed at Broadlawns Medical Center are noted to 
 
         have been consistently normal with no abnormal findings.  
 
         Claimant was diagnosed as having tendonitis which has not been 
 
         found to have been causally connected to the work injury of 
 
         August 26, 1986.  As noted above, the question of causal 
 
         connection is essentially within the domain of expert testimony.  
 
         A possibility of causal connection is insufficient as a 
 
         probability is necessary.  Claimant has established nothing more 
 
         than a possibility, at best, of a causal connection.  Therefore, 
 
         the employer cannot be held responsible for any complaints which 
 
         claimant may have with regard to his left leg or, in other words, 
 
         for any complaints beyond those involving the right heel, as 
 
         claimant has not established a causal connection in this regard.
 
         
 
              Iowa Code section 85.27 provides in pertinent part:
 
         
 
                 The employer, for all injuries compensable under 
 
              this chapter or chapter 85A, shall furnish reasonable 
 
              surgical, medical, dental, osteopathic, chiropractic, 
 
              podiatric, physical rehabilitation, nursing, ambulance 
 
              and hospital services and supplies therefor and shall 
 
              allow reasonably necessary transportation expenses 
 
              incurred for such services.
 
         
 
                In accordance with the above, the employer is responsible 
 

 
         
 
         
 
         
 
         CHESHIRE V. THE CAIRO-TOUCH, INC.
 
         PAGE   5
 
         
 
         for furnishing the medical attention claimant requires for 
 
         treatment of the right heel.  This, according to the medical 
 
         records, would be only the treatment rendered on August 26, 1986 
 
         at the emergency room of Broadlawns Medical Center.  The 
 
         complaints which claimant has surrounding his left leg are not 
 
         compensable under Iowa Code chapter 85 and, therefore, the 
 
         employer cannot be directed to pay for such medical services.
 
         
 
              Under Iowa Code section 85.34, compensation for permanent 
 
         partial disability is based upon the extent of the disability.  
 
         Generally, a claim of permanent disability invokes an initial 
 
         determination of whether the work injury was the cause of 
 
         permanent physical impairment or permanent limitations in 
 
         activity.  The record clearly establishes that claimant has not 
 
         been found to have either a permanent physical impairment or 
 
         permanent restriction on limitation in work activities.  The only 
 
         medical report with regard to permanent impairment contained in 
 
         the record is that of Dr. Engebretsen dated March 17, 1988 which 
 
         states:  "We have no objective evidence of any permanent 
 
         impairment." Therefore, claimant is entitled to no permanent 
 
         partial disability benefits as claimant has failed to establish 
 
         his work injury resulted in any permanent disability.
 
         
 
             Iowa Code section 85.32 provides, in part:
 
         
 
              Except as to injuries resulting in permanent partial 
 
         disability, compensation shall begin on the fourth day of 
 
         disability after the injury.
 
         
 
              Iowa Code section 85.33 provides, in part:
 
         
 
                 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.
 
         
 
              As stated above, under Iowa Code section 85.32, weekly 
 
         compensation benefits shall not begin until the fourth day of 
 
         disability after the injury and temporary total disability 
 
         benefits will continue, under Iowa Code section 85.33, until the 
 
         employee has returned to work or is medically capable of 
 
         returning to employment.  Claimant argues that he is entitled to 
 
         temporary total disability benefits from the date of injury until 
 
         he was released to return to work without restriction or 
 
         limitation on April 17, 1987., However, the medical records do 
 
         not, again, support claimant's contentions.  Initially, claimant 
 
         asserted that he was advised by the health care providers at 
 
         Broadlawns Medical Center that he was to remain off his feet for 
 
         five days.  However, the emergency room report dated August 26, 
 
         1987 releases claimant to return to work the following day.  In 
 
         addition, the notation of the medical records of April 17, 1987 
 
         does not release claimant to,return to work as claimant had 
 
         already been released.  Those records simply advise claimant that 
 
         he should try to work as much as possible.  No notations in the 
 
         records prior to that date had ever advised claimant not to work.  
 
         Therefore, the extent of claimant's temporary total disability 
 

 
         
 
         
 
         
 
         CHESHIRE V. THE CAIRO-TOUCH, INC.
 
         PAGE   6
 
         
 
         was from the time of his visit at Broadlawns Medical Center on 
 
         August 26, 1986 to the following day, August 27, 1986.  
 
         Claimant's injury, therefore, is not compensable under Iowa Code 
 
         section 85.32 or Iowa Code section 85.33.
 
         
 
              The final issue then for determination is the question of 
 
         rate.  However, as claimant is entitled to no weekly benefits, 
 
         the issue of rate has become moot and need not be decided.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based on all the evidence presented, the 
 
         following findings of fact are made:
 
         
 
              1.  Claimant sustained an injury which arose out of and in 
 
         the course of his employment on August 26, 1986, when he was hit 
 
         in the right heel with a piece of a floor buffer.
 
         
 
              2.  Claimant sought treatment for the work injury at 
 
         Broadlawns Medical Center on August 26, 1986 and was released to 
 
         return to work the following day, August 27, 1986.
 
         
 
              3.  Claimant advised the employer he was to remain off work 
 
         for five days and was advised, in return, he would be replaced.
 
         
 
              4.  Claimant continued to seek medical care but for left leg 
 
         pain.
 
         
 
              5.  Health care providers have found no objective evidence 
 
         of any abnormalities and all examinations have been normal.
 
         
 
              6.  ClaimantOs left leg complaints are not as a result of 
 
         the work injury of August 26, 1986.
 
         
 
              7.  Claimant has no permanent impairment nor permanent work 
 
         restrictions as a result of the work injury of August 26, 1986.
 
         
 
              8.  Claimant was not a credible witness.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant has establishes he sustained an injury which 
 
         arose out of and in the course of his employment on August 26, 
 
         1986.
 
         
 
              2.  Claimant has failed to establish the complaints he has 
 
         with regard to his left leg are as a result of the work injury.
 
         
 
              3.  Claimant has established the employer's liability for 
 
         the medical treatment given at Broadlawns Medical Center on 
 
         August 26, 1986, only.
 
         
 
              4.  Claimant has not established his entitlement to any 
 
         temporary total disability or healing period benefits or 
 
         permanent partial disability benefits.
 
         
 
                                      ORDER
 

 
         
 
         
 
         
 
         CHESHIRE V. THE CAIRO-TOUCH, INC.
 
         PAGE   7
 
         
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That the employer is liable for all disputed medical 
 
         expenses with regard to claimant's medical treatment at 
 
         Broadlawns Medical Center on August 26, 1986.
 
         
 
              That claimant shall take nothing further from these 
 
         proceedings.
 
         
 
              That costs of this action are assessed against claimant 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 20th day of July, 1988.
 
         
 
         
 
         
 
         
 
                                         DEBORAH A. DUBIK
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Fred Haas
 
         Ms. Patricia Lantz
 
         Attorneys at Law
 
         5001 SW Ninth St
 
         Des Moines, IA 50315
 

 
         
 
         
 
         
 
         CHESHIRE V. THE CAIRO-TOUCH, INC.
 
         PAGE   8
 
         
 
         
 
         Cairo-Touch, Inc.
 
         8528 Crestview Drive
 
         Des Moines, Iowa 50320
 
         CERTIFIED & REGULAR MAIL
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                     1100; 1402
 
                                                     Filed July 20, 1988
 
                                                     DEBORAH A. DUBIK
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROGER CHESHIRE,
 
         
 
              Claimant,                             File No. 834891
 
         
 
         vs.
 
                                                 A R B I T R A T I 0 N
 
         THE CAIRO-TOUCH, INC.,
 
                                                    D E C I S I 0 N
 
              Employer,
 
              Defendant.
 
         
 
         
 
         
 
         1100; 1402
 
         
 
              Claimant established that he sustained an injury which arose 
 
         out of and in the course of his employment when a piece from a 
 
         buffer hit his right heel.  Claimant sought medical treatment at 
 
         Broadlawns Medical Center and was released to return to work the 
 
         following day.  However, claimant advised the employer he was 
 
         unable to return to work for approximately five days and as a 
 
         resuit was discharged from his employment.  Claimant asserted 
 
         that as a result of the right heel pain he began to develop pain 
 
         in his left leg.  Medical records from Broadlawns Medical Center 
 
         revealed that claimant had a intervening injury to his left leg. 
 
          Claimant's testimony was found to lack credibility.  It was 
 
         concluded that while claimant sustained an injury which arose out 
 
         of and in the course of his employment and that the employer was 
 
         liable for the one medical appointment at Broadlawns Medical 
 
         Center, claimant had not established his entitlement to any 
 
         temporary total disability or healing period benefits pursuant to 
 
         Iowa Code section 85.32 and 85.33.  Claimant made no request for 
 
         permanent partial disability benefits.
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MICHAEL J. WESSELS,           :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 834923
 
            vs.                           :
 
                                          :
 
            TED J. KLUESNER d/b/a TED J.  :     A R B I T R A T I O N
 
            KLUESNER PAINTING,            :
 
                                          :        D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            NEW HAMPSHIRE INSURANCE CO.,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This case came on for hearing on December 12, 1990, in 
 
            Dubuque, Iowa.  This is a proceeding in arbitration wherein 
 
            claimant seeks compensation for permanent partial disability 
 
            benefits as a result of a September 2, 1986 injury.  The 
 
            record in the proceedings consist of the testimony of 
 
            claimant and joint exhibits 1 through 7.
 
            
 
                                      issue
 
            
 
                 The sole issue for resolution is the extent of 
 
            permanent partial disability.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 33-year-old high school graduate.  He 
 
            began working originally for defendant employer in the 
 
            summer of 1979.  Prior to this time, claimant's employment 
 
            involved attending bar and cooking for his father's tavern, 
 
            operating and setting up a screw machine and working as a 
 
            flagman and driving a tractor pulling a Sheeps Foot for a 
 
            road contractor.  Most of these pre-summer 1979 jobs were 
 
            physically demanding and some requested heavy lifting.
 
            
 
                 Claimant described his first job with defendant 
 
            employer in the summer of 1979.  This involved tuck 
 
            pointing, removing mortar, lifting 25 to 30 pound buckets of 
 
            mortar, 70 to 100 pound bags of sand and mortar and lifting 
 
            and setting up scaffolding.  This was seasonal work at the 
 
            time.  Claimant did not work for defendant employer again 
 
            until the summer of 1983.  During this interim period, 
 
            claimant did seasonal work for another tuck point company 
 
            and worked for road construction and excavating companies.  
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            This work was physically demanding.
 
            
 
                 Upon claimant's return to defendant employer in 1983, 
 
            his work involved mainly painting and sandblasting until his 
 
            September 2, 1986 injury.  This job was physically 
 
            demanding.  On September 2, 1986, claimant was carrying two 
 
            75 pound buckets of sand up a riprapped slope while working 
 
            on defendant employer's bridge project.  As he was walking, 
 
            he twisted his body and felt a "pop" in his middle low back.  
 
            The parties stipulated that defendants paid claimant for a 
 
            healing period beginning on September 3, 1986 through March 
 
            22, 1987.
 
            
 
                 Claimant had an excision of L5-S1 right herniated disc 
 
            on November 19, 1986.
 
            
 
                 Claimant said his pain decreased after his surgery but 
 
            it went down into his leg and arm shortly thereafter.  He 
 
            said his back is still numb to the present.  He indicated he 
 
            still has pain in his back at times depending on the type of 
 
            activity he does.
 
            
 
                 Claimant has been operating his own bar and restaurant 
 
            since April 1987, approximately eight months after his 
 
            injury.  Claimant works six days a week, fourteen to sixteen 
 
            hours a day, Monday through Saturday.  Four or five times a 
 
            year claimant works during the deer season on a Sunday or if 
 
            there is a specific party being held at his restaurant.  
 
            Claimant's mother is a full-time cook beginning at 7:00 a.m.  
 
            Claimant works at alone at night and tends bar and does the 
 
            short order cooking or whatever else needs to be done.  He 
 
            said his maximum lifting involves a 100 pound keg of beer 
 
            but he uses a cart to carry it.  He lifts the cases of beer 
 
            (30 to 35 pounds per case).  He estimated he lifts about two 
 
            cases during the weekdays and ten to twelve cases on 
 
            weekends.  Claimant's work hours are usually from noon to 
 
            2:00 a.m. but often he will come in at 10:00 a.m.
 
            
 
                 Claimant indicated he has a person come to his business 
 
            on Sundays to scrub the floors.  Claimant seems to indicate 
 
            he doesn't scrub during the week and no one else comes in to 
 
            clean up.
 
            
 
                 Claimant said he walks and does 20 to 30 sit-ups when 
 
            his back starts hurting.  Claimant acknowledged that James 
 
            A. Pearson, M.D., said he should do the sit-ups daily but he 
 
            doesn't do them daily.
 
            
 
                 Claimant said he never considered going back to work 
 
            for defendant employer because he had his eye on the bar and 
 
            restaurant operation that eventually he bought.  Claimant 
 
            said his mother and father had been in the restaurant-bar 
 
            business and he had dreamed before his injury that he would 
 
            like to have his own bar and restaurant some day.  Claimant 
 
            contends he doesn't think he can now do the same work for 
 
            defendant employer that he was doing at the time of his 
 
            September 2, 1986 injury.
 
            
 
                 The wages claimant had received from the other 
 
            employments in the past ranged from $3.25 per hour to $7.00 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            per hour.  Most of these jobs were seasonal and layoffs were 
 
            common.
 
            
 
                 Claimant's current business operation is full-time with 
 
            no layoffs and involves some heavy lifting at times.  
 
            Claimant acknowledged he was released to return to work 
 
            beginning March 23, 1987 without restriction (Jt. Ex. 1, p. 
 
            6), but he told defendant employer he was not coming back to 
 
            work.
 
            
 
                 Claimant acknowledged that he never saw his treating 
 
            doctor, Dr. Pearson, after his release to return to work on 
 
            March 23, 1987 until March 10, 1988 for an evaluation rating 
 
            and not a treatment.  At the request of claimant's attorney, 
 
            his next visit to Dr. Pearson was November 6, 1989, at which 
 
            time claimant contends he was still having some problems and 
 
            the doctor recommended claimant do daily sit-ups, leg 
 
            raising and lose weight.  Claimant has never done the leg 
 
            raising exercise and didn't recall a doctor prescribing 
 
            them.  He periodically does sit-ups and has lost weight but 
 
            was very uncertain as to the particulars.
 
            
 
                 Claimant acknowledged he was to return to Dr. Pearson 
 
            on April 28, 1987 to see how his exercise program was 
 
            working, but claimant cancelled this appointment as he was 
 
            interested in getting his business going.
 
            
 
                 There were several questions concerning claimant's 1986 
 
            through 1989 tax returns.  Claimant was unable to obtain 
 
            prior tax returns or information requested by defendants.
 
            
 
                 On March 10, 1988, Dr. Pearson opined claimant had a 15 
 
            percent permanent partial impairment as a result of a 
 
            ruptured lumbar disc with some residual back and leg 
 
            discomfort (Jt. Ex. 1, p. 7).  On November 6, 1989, Dr. 
 
            Pearson restricted claimant's lifting to 50 pounds on an 
 
            unlimited basis.  The doctor was unwilling to give claimant 
 
            a release of that lifting limit at that time but indicated 
 
            he wanted to see how claimant responded to the exercise 
 
            program before considering a release.  Claimant has not seen 
 
            the doctor since November and admitted he hasn't followed 
 
            the doctor's recommendations.  Claimant contends that 
 
            claimant has at least a 30 percent industrial disability.  
 
            Defendants contend that claimant does not have an industrial 
 
            disability beyond 15 percent and, in fact, his industrial 
 
            disability could be less than that but have agreed to pay 
 
            based on 15 percent.  Defendants contend there is no causal 
 
            connection for any impairment or industrial disability 
 
            beyond 15 percent and possibly less than that and if there 
 
            is a greater impairment, it is from other causes and not 
 
            causally connected to claimant's September 2, 1986 injury.
 
            
 
                 It appears claimant contends that there has been a 
 
            substantial loss of income because of claimant's 1986 
 
            injury.  Claimant was earning $6.00 per hour with defendant 
 
            employer at the time of his 1986 injury.  The work was 
 
            seasonal.  Defendant employer testified that they started 
 
            hiring people again the following spring to finish the 
 
            bridge job on which the claimant was working the previous 
 
            year before his injury.  He said claimant could have had his 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            job again since he was released in March 1988 and the normal 
 
            rehiring of workers does not begin until April, as the 
 
            temperature needs to reach approximately 50 degrees for the 
 
            type of work defendant employer was doing.  Defendant 
 
            employer acknowledges that claimant's former job does 
 
            require lifting which would be in excess of claimant's 50 
 
            pound lifting restriction but indicated he had many other 
 
            jobs that claimant could do that would not violate his 
 
            restrictions and that on these jobs there would be others 
 
            working that could assist claimant so there would not be any 
 
            violation of his restrictions.  Defendant employer indicated 
 
            that the business has been very good in the last three years 
 
            and that he has enough work now and they are working full-
 
            time with no layoffs.  He related that it is hard to get 
 
            skilled workers and that he has had to turn down work 
 
            because of lack of skilled workers.  He indicated that he no 
 
            longer works with the union because they were unable to 
 
            provide the necessary skilled labor and that it was now up 
 
            to the employer to train the particular employee to do the 
 
            particular work involved.
 
            
 
                 Mr. Kluesner said claimant was a very good employee, 
 
            had good skills and that he had no problem with him.  He 
 
            indicated that had claimant continued working when he was 
 
            released to work, he would now be a journeyman making $10.50 
 
            per hour as a residential rate without Dr. Pearson's 50 
 
            pound restriction.  Mr. Kluesner also indicated that the 
 
            nature of his work has changed as to the percentage of the 
 
            work involving drywall, tuck pointing, farm painting, 
 
            residential painting and sandblasting.  He indicated 
 
            sandblasting is now one of the smaller portions of his work.  
 
            He indicated that he has no openings now but would not be 
 
            reluctant to hire claimant if an opening occurred.  Mr. 
 
            Kluesner said he told claimant that if claimant was ever 
 
            looking for a job that he was to let him know.
 
            
 
                 Loss of income is only one of the criteria in 
 
            determining industrial disability.  In this case, it is 
 
            obvious claimant has chosen his own course as to employment 
 
            or operating his own business.  It appears claimant is doing 
 
            things now in his bar and restaurant business that he has 
 
            desired to do for years.  He grew up in this type business 
 
            with his parents being in the business and had a dream to do 
 
            it, himself, eventually.
 
            
 
                 There are advantages and disadvantages of operating 
 
            your own business.  There are many advantages which one 
 
            would not have being employed by another person or company.  
 
            Some of these are control of the business, the hours, time 
 
            off and deduction of certain expenses.  Claimant is 
 
            purchasing the property and equipment and does have 
 
            write-offs which lower one's net income but are, in fact, 
 
            advantages in operating your own business.
 
            
 
                 The fact that claimant is operating his own business 
 
            does not eliminate the fact that claimant has a lifting 
 
            restriction.  This restriction has an effect on one's 
 
            earning capacity even in the operation of your own business.  
 
            With restrictions of that nature, it can affect one's need 
 
            to hire help to perform certain jobs that might have to be 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            done that would otherwise violate one's lifting 
 
            restrictions.  This, of course, has an effect on one's net 
 
            income.  Claimant's transferable skills, other than the bar 
 
            and restaurant business, is in the medium to heavy weight 
 
            industry.  The employer is not enthusiastic about hiring 
 
            people with bad backs or lifting problems, particularly in 
 
            industries in which jobs require an employee to lift more 
 
            than 50 pounds.  Mr. Kluesner indicated that if he had an 
 
            opening for claimant and claimant returned, he would have 
 
            other employees do the heavy lifting for claimant.  This is 
 
            not a situation where most employers wish to hire an 
 
            individual earning comparable wages and have others pick up 
 
            the heavier weight duties for an individual who has a bad 
 
            back.  This leads to unrest among other employees and is a 
 
            situation most employers would not tolerate unless required 
 
            by law.
 
            
 
                 Taking into consideration claimant's age, his 
 
            motivation, his medical history before and after his injury, 
 
            his work history, transferable skills, 15 percent permanent 
 
            partial impairment to his body as a whole, his income before 
 
            and after his injury, his voluntary choice of work, his 
 
            education and the other things that are to be considered in 
 
            determining industrial disability, the undersigned finds 
 
            that claimant has a 20 percent industrial disability.  The 
 
            undersigned further finds that claimant's 15 percent 
 
            permanent partial impairment to his body as a whole and his 
 
            20 percent industrial disability are causally connected to 
 
            his work-related injury on September 2, 1986.
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of September 
 
            2, 1986 is causally related to the disability on which he 
 
            now bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 
 
            133 N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 
 
            296, 18 N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            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 to draw upon prior 
 
            experience, general and specialized knowledge to make the 
 
            finding with regard to degree of industrial disability.   
 
            See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
            February 28, 1985); Christensen v. Hagen, Inc., (Appeal 
 
            Decision, March 26, l985).
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant's work injury on September 2, 1986 caused 
 
            claimant to incur a 15 percent permanent partial impairment 
 
            to his body as a whole.
 
            
 
                 Claimant's work injury on September 2, 1986 caused 
 
            claimant to have a 50 pound weight lifting restriction.
 
            
 
                 Claimant voluntarily chose to open his own bar and 
 
            restaurant rather than return to his former job with 
 
            defendant employer.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 Claimant's work injury on September 2, 1986 caused 
 
            claimant to incur a 20 percent loss of earning capacity.
 
            
 
                 Claimant has a 20 percent industrial disability which 
 
            was caused by his September 2, 1986 work injury.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay unto claimant one hundred 
 
            (100) weeks of permanent partial disability benefits at the 
 
            rate of one hundred fifty dollars ($150.00) per week, 
 
            commencing March 23, 1987.
 
            
 
                 That defendants shall pay the accrued weekly benefits 
 
            in a lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  The parties stipulated 
 
            that defendants have previously paid seventy-five (75) weeks 
 
            of permanent partial disability benefits and that all 
 
            healing period benefits have previously been 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 Rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon
 
            payment of this award as required by this agency, pursuant 
 
            to Rule 343 IAC 3.1
 
            
 
     
 
            
 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Signed and filed this _____ day of December, 1990.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Michael J Coyle
 
            Attorney at Law
 
            200 Security Bldg
 
            Dubuque IA 52001
 
            
 
            Mr Roger L Ferris
 
            Attorney at Law
 
            1900 Hub Tower
 
            699 Walnut
 
            Des Moines IA 50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1803
 
                      Filed December 19, 1990
 
                      Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MICHAEL J. WESSELS,           :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 834923
 
            vs.                           :
 
                                          :
 
            TED J. KLUESNER d/b/a TED J.  :     A R B I T R A T I O N
 
            KLUESNER PAINTING,            :
 
                                          :        D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            NEW HAMPSHIRE INSURANCE CO.,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant awarded 20% industrial disability.  Claimant is 33 
 
            years old and had herniated disc surgery on his L5-S1.  He 
 
            did not return to his original job at time of injury, but 
 
            opened his own bar and restaurant by choice and at time of 
 
            hearing was making less net income.  Claimant has a 50 pound 
 
            weight lifting restriction and a 15% permanent partial 
 
            impairment to his body as a whole.  Claimant had already 
 
            been paid 15% industrial disability by defendants and all 
 
            healing period benefits.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         HARRY D. DAVIS,
 
         
 
              Claimant,
 
                                                   File No. 834950
 
         vs.
 
                                                A R B I T R A T I O N
 
         AGGREGATE EQUIPMENT & SUPPLY,  
 
                                                   D E C I S I O N
 
              Employer,
 
         
 
         and                                          F I L E D
 
         
 
         LIBERTY MUTUAL INSURANCE                     JUL 17 1989
 
         COMPANY,
 
                                             IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Harry D. 
 
         Davis, claimant, against Aggregate Equipment & Supply, employer 
 
         (hereinafter referred to as Aggregate), and Liberty Mutual 
 
         Insurance Company, insurance carrier, defendants, for workers' 
 
         compensation benefits as a result of an alleged injury on 
 
         September 1, 1986.  On November 22, 1988, a hearing was held on 
 
         claimant's petition and the matter was considered fully submitted 
 
         at the close of this hearing.
 
         
 
              The parties have submitted a prehearing 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 the 
 
         following witnesses:  Nick Letizia and Paul Coogan.  The exhibits 
 
         received into the evidence at the hearing are listed in the 
 
         prehearing report.
 
              
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
              
 
              1.  On February 1986 or September 1986, claimant received an 
 
         injury which arose out of and in the course of his employment 
 
         with Aggregate.
 
         
 
              2.  Claimant is not seeking temporary total disability or 
 
         healing period benefits in this proceeding beyond that which has 
 
         already been paid by defendants.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              3.  If the injury is found to have caused permanent 
 
         disability, the type of disability is an industrial disability to 
 
         the body as a whole.
 
         
 
              4.  If permanent disability benefits are awarded, they shall 
 
         begin as of October 8, 1987.
 
              
 
              5.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits from this proceeding shall be 
 
         $435.69.
 
              
 
              6.  Entitlement to medical benefits was stipulated to be no 
 
         longer an issue in this proceeding.
 
         
 
                                      ISSUES
 
         
 
              The parties have submitted the following issues for 
 
         determination in this proceeding:
 
         
 
               I.  Whether claimant received an injury arising out of and 
 
         in the course of employment (the stipulation is unclear so this 
 
         issue will be dealt with);
 
         
 
              II.  Whether there is a causal relationship between the 
 
         work injury and the claimed disability; and,
 
         
 
              III.  The extent of claimant's entitlement to weekly 
 
         benefits for disability.
 
         
 
                                STATEMENT OF FACTS
 
         
 
              The following is a brief statement highlighting some of the 
 
         more pertinent evidence presented.  Whether or not specifically 
 
         referred to in this statement, all of the evidence received at 
 
         the hearing was independently reviewed and considered in arriving 
 
         at this decision.  Any conclusions about the evidence received 
 
         contained in the following statement should be viewed as 
 
         preliminary findings of fact.
 
         
 
              Claimant testified that he has worked for Aggregate since 
 
         June 1985.  At the time of hearing, claimant was still working 
 
         for Aggregate.  Claimant's job at Aggregate has been as a 
 
         salesman of construction equipment either by purchase or lease 
 
         except for a brief time following the work injury when he worked 
 
         as a counter clerk upon the orders of his physician.  Claimant's 
 
         job as a salesman involved occasional manual labor in the 
 
         delivery of the purchased or rented items to customers.  Claimant 
 
         performed loading and unloading work himself except for large 
 
         equipment when a "hauler" would be used.  According to exhibit A, 
 
         claimant earned approximately $32,000 in 1985 and approximately 
 
         the same amount in 1986 until he was forced to leave work as a 
 
         result of the work injury on September 26, 1986.  Claimant 
 
         testified that he would have earned from his base salary and 
 
         commission sales from $40,000 to $42,000 in 1986 had he been able 
 
         to work the entire year.  He said that prior to his work injury, 
 
         Aggregate furnished him a station wagon automobile and paid all 
 
         operating expenses of this auto.  He said that he was only 
 
         charged $300 to $360 per year for his personal use of the car.  
 
         Claimant stated that he was also given, at no charge, a beeper or 
 
         remote communication device to receive messages while out of the 
 
         office.  Claimant testified that he began working for Aggregate 
 
         following a dispute with a former employer who was also a 
 
         competitor of Aggregate.  Claimant said that he carried with him 
 
         from his former employer approximately 200 accounts when he began 
 
         working for Aggregate.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The facts surrounding the work injury are not in dispute. 
 
         Claimant testified he initially injured his low back in February 
 
         1986 when he accidentally stepped into a hole at a construction 
 
         site.  Claimant said that he did not have back or leg problems 
 
         before that time.  Claimant testified that he experienced pain in 
 
         his groin area, hip and right leg.  Claimant said that he 
 
         reported this incident to his supervisor and was told to go home 
 
         until the problem worked itself out.  Claimant did not seek 
 
         treatment at that time and returned to work soon thereafter.  
 
         However, claimant said that the symptoms never "went away."
 
         
 
              Claimant further testified that he continued to experience 
 
         episodes of back and leg pain after February 1986, while 
 
         performing loading and unloading activities at Aggregate.  He 
 
         said that each time his leg would "give out."  Finally, in 
 
         September 1986, while unloading a compressor, the pain became so 
 
         severe that he could not work or sit.  Claimant said that it took 
 
         him approximately three hours to return from a trip outside of 
 
         Des Moines that would have normally have taken only 30 minutes.  
 
         He then sought immediate treatment from his family doctor, J. W. 
 
         Hatchitt, D.O., on September 22, 1986.  Dr. Hatchitt reports that 
 
         claimant complained to him at that time of pain in his right 
 
         groin for the last 8 months.  Claimant was initially referred to 
 
         a vascular surgeon, William Stanley.  After finding no vascular 
 
         problem, claimant was referred by Dr. Stanley to an orthopedic 
 
         surgeon, Martin Rosenfeld, D.O., who initially treated claimant 
 
         with medication and exercises.  After initial treatment failed to 
 
         alleviate claimant's symptoms, claimant was hospitalized for 
 
         tests and epidural injections.  Dr. Rosenfeld diagnosed a bulging 
 
         disc at L5/S1 level from his reading of the myelogram and MRI 
 
         studies. However, the insurance carrier refused further treatment 
 
         by Dr. Rosenfeld and referred claimant to a neurosurgeon, David 
 
         Boarini, M.D.  After his examination of claimant, Dr. Boarini 
 
         could not find a surgical lesion and questioned Dr. Rosenfeld's 
 
         interpretation of the test results.  He suggested instead 
 
         aggressive physical therapy.  Dissatisfied with this finding, 
 
         claimant complained to his attorney who suggested another 
 
         orthopedic surgeon, William R. Boulden, M.D.  After the insurance 
 
         carrier concurred in claimant's request to change treatment to 
 
         Dr. Boulden, claimant began treating with Dr. Boulden in December 
 
         1986.  After his examination of claimant, Dr. Boulden agreed with 
 
         Dr. Rosenfeld and claimant underwent surgery called a diskectomy 
 
         with neuroforaminotomy at the L5/S1 level on January 2, 1987. 
 
         After an extensive period of recovery following the surgery, 
 
         claimant was returned to work in September 1987.  When he 
 
         returned to work, his physician, Dr. Boulden, imposed 
 
         restrictions of no lifting over 30 to 35 pounds, no repetitive 
 
         lifting, bending or stooping; and no prolonged sitting.  Claimant 
 
         testified that he was initially assigned to a sales job requiring 
 
         driving a car approximately 3 or 4 hours a day.  However, after 
 
         this was not approved by Dr. Boulden, claimant was reassigned to 
 
         part-time counter work at the rate of $7.00 per hour.  Claimant 
 
         gradually worked up to a full time counter work and then was 
 
         assigned to sales duty beginning in January 1988.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                 
 
              Claimant said that he was initially assigned 9 or 10 sales 
 
         accounts and he was required to buy his own transportation, a 
 
         pickup truck.  No longer was a beeper furnished and claimant 
 
         testified that he had to purchase a car telephone.  These 
 
         expenses claimant said amounted to $320 a month which he paid 
 
         from his net income after taxes were deducted.  Claimant 
 
         testified that he has lost a considerable amount of earning 
 
         capacity as a result of the loss of most of his lucrative 
 
         accounts that he had prior to the injury.  Some, but most of 
 
         these accounts have been returned to him.  The claimant said that 
 
         he had well over 200 accounts prior to his work injury.
 
              
 
              Claimant admits that he has been given some additional 
 
         accounts and he currently services 115 total accounts, but he 
 
         states that these are mostly new accounts and he cannot earn the 
 
         same amount of money from such accounts.  Management officials at 
 
         Aggregate testified that claimant was gradually given new 
 
         accounts as he was able to physically handle the work.  They 
 
         stated that he could not be assigned to all of his former 
 
         accounts as new salesmen were already involved in those accounts.  
 
         Coogan, the president of Aggregate, testified that the quality, 
 
         not the number of accounts determines income.  He stated that 
 
         claimant is not required to have a truck or car telephone.  He 
 
         said that he now only furnishes a car to one salesman and then 
 
         this practice will soon end.
 
                 
 
              Claimant is 51 years of age and is a high school graduate. 
 
         Claimant attended two years of vocational school in business 
 
         management as a young man.  Claimant's past employment consists 
 
         mostly of sales and sales management work since the early 1960's. 
 
         In many of these past employments, claimant was required to 
 
         perform manual labor and occasional heavy lifting in his sales 
 
         work.  Between January 1 and the time of hearing, claimant had 
 
         earned approximately $22,000 from his sales activity at 
 
         Aggregate. Defendants pointed out at hearing that in July 1988, 
 
         claimant's monthly income was $2,181.16, approximately $200 
 
         greater than in any other month in prior years.  Claimant 
 
         responded that this was an unusual month.  In November, claimant 
 
         earned $2,008.93.
 
         
 
              Claimant agrees with Dr. Boulden's assessment of his 
 
         physical limitations.  He complains at the present time of 
 
         continued right leg and buttocks numbness along with pain in the 
 
         lower back.  He states that his left leg has improved but he 
 
         continues to have episodes of serious back and leg pain with 
 
         certain activity. Claimant said that he has severely curtailed 
 
         his home and recreational activities.  The claims adjuster for 
 
         defendant insurance carrier testified by deposition that he 
 
         observed claimant at home for a couple of hours before claimant 
 
         had returned to work in September of 1987.  Claimant was, at that 
 
         time, working in his yard removing trash and other debris and 
 
         appeared to be in no physical distress.  Claimant said that this 
 
         was light work and he performed this work as a way of occupying 
 
         his time during the day.  Claimant testified that he continues at 
 
         the present time to occasionally use an electrical device called 
 
         a TENS unit for his back pain and also performs exercises at the 
 
         direction of Dr. Boulden.  Claimant expresses concern about his 
 
         ability to service his accounts because of an inability to drive 
 
         for prolonged periods of time.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Boulden rates claimant's impairment as constituting a 20 
 
         percent permanent partial impairment to the body as a whole.  Dr. 
 
         Rosenfeld opines that claimant suffers from a 25 percent 
 
         permanent partial impairment under orthopedic guidelines.  From 
 
         their functional capabilities testing of claimant, the University 
 
         of Iowa Hospital and Clinics states that claimant suffers a 12 
 
         percent permanent partial impairment and is restricted to lifting 
 
         under 45 pounds, repetitive lifting under 20 pounds and sitting 
 
         of no more than 20 to 30 minutes.
 
              
 
              Claimant's demeanor and appearance at hearing indicated that 
 
         he was testifying truthfully.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
               I.  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.
 
         
 
              It is unclear from the prehearing report what, if anything, 
 
         was stipulated to by defendants.  However, there is little 
 
         question in this case that claimant has shown by his credible 
 
         testimony work injuries both in February and September of 1986.
 
         
 
              II.  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 
 
         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, all physicians agree that claimant 
 
         suffered some sort of permanent partial impairment from his work 
 
         injuries.  The precise rating is not that important in an 
 
         industrial disability case but Dr. Boulden's opinion appears to 
 
         be the most reasonable given his clinical involvement in 
 
         claimant's case.  Therefore, it will be found that the work 
 
         injury of September 1986 was the cause of a 20 percent permanent 
 
         partial impairment to the body as a whole.  Claimant was able to 
 
         maintain working after the other episodes of injury prior to that 
 
         time.
 
         
 
              III.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled. As the claimant has shown that the 
 
         work injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A physical 
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors. These factors 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.  
 
         Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  See 
 
         Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 
         28, 1985).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Before February 1986, claimant's medical condition was 
 
         excellent and he had no functional impairments or ascertainable 
 
         disabilities.  Claimant was able to fully perform physical tasks 
 
         involving heavy lifting, repetitive lifting, bending, twisting 
 
         and stooping and prolonged sitting.  After September 1986, 
 
         claimant had a significant permanent impairment.  More 
 
         importantly, from an industrial disability standpoint, claimant's 
 
         physicians have permanently restricted claimant's work activities 
 
         involving heavy lifting; repetitive lifting, bending, twisting 
 
         and stooping; and prolonged sitting.  Such activities have been 
 
         necessary to claimant's employment in his past construction 
 
         machinery sales/rental business.  However, due to accommodations 
 
         made by Aggregate, claimant's medical condition has not prevented 
 
         him from returning to his former work.
 
         
 
              Claimant, however, has suffered a very significant loss of 
 
         earning capacity.  Claimant and his employer apparently agree 
 
         that it is not the number of accounts but the quality of the 
 
         accounts that determine the earnings.  Aggregate agrees that 
 
         claimant has not been provided all of his past lucrative sales 
 
         accounts.  Also, claimant now has to furnish his own 
 
         transportation and communication devices to take calls from 
 
         customers.  Admittedly, other salesmen must do so as well.  
 
         However, Coogan testified that he makes special arrangements for 
 
         certain salesmen, apparently depending upon their bargaining 
 
         power with him.  It is rather obvious that if claimant had not 
 
         been injured and had maintained his past lucrative accounts, his 
 
         bargaining position would be much better than it is at the 
 
         present time.  Claimant brought accounts with him when he came to 
 
         Aggregate and had he not been injured and had been able to 
 
         maintain his lucrative accounts, this threat could have been held 
 
         over Aggregate when he came to negotiating his salary with 
 
         reference to his transportation and communication expenses.  When 
 
         you consider his current income, and what he is making in 1986 
 
         and his car and communication expenses, his loss of actual 
 
         earnings approaches 50 percent for the year 1988 as compared to 
 
         his earnings in 1986.  However, this is claimant's first year of 
 
         his return to work in sales and it is not unreasonable to 
 
         conclude that his loss of earnings will subside with time 
 
         assuming claimant is able to continue working.
 
         
 
              Although claimant has a high school education and exhibited 
 
         average intelligence at the hearing, claimant is 51 years of age 
 
         and nearing the age when retraining potential is low.  However, 
 
         retraining at the present time is not necessary so long as he is 
 
         able to remain employed at Aggregate.
 
              
 
              After examination of all the factors, it is found as a 
 
         matter of fact that claimant has suffered a 30 percent loss of 
 
         earning capacity from his work injury.  Based upon such a 
 
         finding, claimant is entitled as a matter of law to 150 weeks of 
 
         permanent partial disability benefits under Iowa Code section 
 
         85.34(2)(u) which is 30 percent of 500 weeks, the maximum 
 
         allowable for an injury to the body as a whole in that 
 
         subsection.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.  (This finding was 
 
         necessary as evidence was submitted by defendants attacking 
 
         claimant's credibility with reference to his ability to return to 
 
         work, the extent of his physical limitations and the extent of 
 
         his loss of earnings from his lost accounts.)
 
         
 
              2.  In February 1986 and again in September 1986, claimant 
 
         suffered an injury to his low back which arose out of and in the 
 
         course of employment with Aggregate.  Claimant injured his back 
 
         in February 1986 after stepping into a hole at a construction 
 
         site. Claimant's pain improved to the extent that no medical 
 
         treatment was needed by him, however, symptoms persisted.  Over 
 
         the next several weeks claimant continued to experience 
 
         occasional bouts of back and leg pain with activity.  At the end 
 
         of September of 1986, while lifting a piece of construction 
 
         equipment, the pain in his back and legs became so severe that he 
 
         was forced to leave work and seek medical attention.
 
         
 
              3.  The work injury in September 1986, was a cause of a 20 
 
         percent permanent partial impairment to the body as a whole and 
 
         of permanent restrictions upon claimant's physical activity 
 
         consisting of no lifting over 30 to 35 pounds, no repetitive 
 
         bending, stooping or lifting; and, no prolonged sitting.
 
              
 
              4.  The work injury of September 1986 and the resulting 
 
         permanent partial impairment and work restrictions is a cause of 
 
         a 30 percent loss of earning capacity.  Claimant is a 51 year old 
 
         salesman with a high school diploma.  As a result of the work 
 
         injury, claimant has been significantly permanently impaired and 
 
         permanently restricted from the type of physical work he can 
 
         perform.  Due to these physical restrictions, claimant is unable 
 
         to return to the same type of work he was performing at the time 
 
         of his injury, namely sales work requiring heavy manual labor on 
 
         occasion.  Due to accommodations made by his current employer, 
 
         claimant was able to return to work but he has suffered at the 
 
         present time approximately a 50 percent loss of actual earnings 
 
         in his first year of sales work.  Claimant will probably reduce 
 
         his loss of earnings in the future but most of his past lucrative 
 
         sales accounts were not returned to him and probably will not be 
 
         returned to him in the future.  Claimant's sales income was very 
 
         good in the summer before the hearing in this case.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Claimant has established under law entitlement to permanent 
 
         partial disability benefits in the amount of 150 weeks.
 
         
 
                                      ORDER
 
         
 
              1.  Defendants shall pay to claimant one hundred fifty (150) 
 
         weeks of permanent partial disability benefits at the rate of 
 
         four hundred thirty-five and 69/100 dollars ($435.69) per week 
 
         from October 8, 1987.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              2.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive a credit against the award for the 
 
         fifty-one (51) weeks of permanent partial disability benefits 
 
         previously paid prior to hearing.
 
         
 
              3.  Defendants shall pay interest on unpaid weekly benefits 
 
         awarded herein as set forth in Iowa Code section 85.30.
 
              
 
              4.  Defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
              
 
              5.  Defendants shall file 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 July, 1989.
 
         
 
                                        
 
         
 
         
 
         
 
                                          LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Channing L. Dutton
 
         Attorney at Law
 
         West Towers Office
 
         1200 35th St., STE 500
 
         West Des Moines, Iowa  50265
 
         
 
         Mr. W. C. Hoffmann
 
         Attorney at Law
 
         500 Liberty Bldg.
 
         Des Moines, Iowa  50309
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         
 
         
 
                                               5-1800
 
                                               Filed July 17, 1989
 
                                               LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         HARRY D. DAVIS,
 
         
 
              Claimant,
 
                                                  File No. 834950
 
         vs.
 
                                               A R B I T R A T I O N
 
         AGGREGATE EQUIPMENT & SUPPLY,
 
                                                 D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE
 
         INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
              
 
              
 
              
 
         5-1800 - Nonprecedential issue involving the extent of permanent 
 
         disability benefits.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ELVIN LEROY CULLEY,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                    File No. 834960
 
         HUMAN RESOURCES, INC.,
 
                                                A R B I T R A T I O N
 
              Employer,
 
                                                   D E C I S I O N
 
         and
 
         
 
         EMPLOYERS MUTUAL INS. CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Elvin Leroy 
 
         Culley, claimant, against Human Resources, Inc., employer 
 
         (hereinafter referred to as Human Resources), and Employers 
 
         Mutual Insurance Company, insurance carrier, defendants, for 
 
         workers' compensation benefits as a result of an alleged injury 
 
         on September 8, 1986.  On April 28, 1988 a hearing was held on 
 
         claimant's petition and the matter was considered fully submitted 
 
         at the close of this hearing.
 
         
 
              The parties have submitted a prehearing 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 the 
 
         following witnesses; Linda Culley, Raymond Macrander, Gregory 
 
         Burgess, Lorelie Porter, Russell Dugger, Lisa Lewis, Terresa Jo 
 
         Koebel, Paul Rosenberg, Jay Rosenberg, Ross Breci, Mark Adamson 
 
         and Karen Stricklett.  The exhibits received into the evidence at 
 
         the hearing are listed in the prehearing report.  According to 
 
         the prehearing report, the parties have stipulated to the 
 
         following matters:
 
         
 
              1.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits from this proceeding shall be 
 
         $72.67;
 
         
 
              2.  Claimant is only seeking temporary total or healing 
 
         period benefits front September 12, 1986 through August 15, 1987 
 
         and defendants agree that claimant was riot working during this 
 
         period of time;
 
              
 
              3.  If the injury is found to have caused permanent 
 
         disability, the type of disability is an industrial disability to 
 
         the body as a whole; and,
 
         
 
              4.  With reference to the medical bills submitted by 
 
         claimant at hearing, a list of which was attached to the 
 

 
         
 
         
 
         
 
         CULLEY V. HUMAN RESOURCES, INC.
 
         PAGE   2
 
         
 
         prehearing report, the provider would testify that their 
 
         charges were fair and reasonable and that defendants were not 
 
         offering contrary evidence.
 
         
 
              At hearing much of the testimony of witness, Terresa Jo 
 
         Koebel, was excluded on the basis of a failure to make full and 
 
         complete discovery as requested by claimant prior to hearing.  
 
         Koebel testified that claimant reported to her on the alleged 
 
         date of injury that he had injured his back while removing a 
 
         car engine at home.  She stated that she noted this fact on 
 
         claimant's time card kept in his personnel file.  During the 
 
         discovery phase of this proceeding, claimant's attorney 
 
         requested and was furnished the alleged contents of claimant's 
 
         personnel file.  However, this time card which contained the 
 
         notation of Koebel was not furnished.  Defendants stated at 
 
         hearing that the particular card referred to by Ms. Koebel was 
 
         lost but in preparing for litigation Koebel had reconstructed 
 
         its context in written form.  Defendants admitted that they did 
 
         not supplement their responses to claimant's discovery requests 
 
         with this reconstructed evidence nor did they indicate to 
 
         claimant that the material furnished to him was not complete.  
 
         After Koebel's testimony, several other witnesses testified 
 
         concerning the alleged comments by claimant that he had injured 
 
         his back at home.  Claimant's attorneys stated at hearing that 
 
         he was not aware of this evidence and this defense prior to the 
 
         hearing.
 
         
 
              After further consideration, the most appropriate sanction 
 
         given the circumstances is not only to exclude Koebel's oral 
 
         testimony but exclude from consideration all other testimony in 
 
         this case pertaining to any alleged comments or prior adverse 
 
         statements of claimant concerning an alleged injury while 
 
         working on his car at home.  Such evidence would have been 
 

 
         
 
         
 
         
 
         CULLEY V. HUMAN RESOURCES, INC.
 
         PAGE   3
 
         
 
         discovered by claimant had there been a full disclosure of the 
 
         evidence to claimant prior to hearing.  It is well settled that 
 
         a party to litigation is bound by his discovery responses.  
 
         White v. Citizens Nat. Bank of Boone, 262 N.W.2d 812 (Iowa 
 
         1978).  Iowa Rules of Civil Procedure dealing with discovery 
 
         are modeled after the Federal Discovery Rules.  It has long 
 
         been held that the Federal rules were designed to encourage 
 
         liberal pre-trial disclosure in order to make trial "less of a 
 
         game of blindman's bluff and more a fair contest with the basic 
 
         issues and facts disclosed to the fullest practicable extent."  
 
         United States v. Proctor & Gamble Company, 356 U.S. 677, 682; 
 
         78 S.Ct. 983, 9864, 2 L. Ed 2d 1077 (1958).  See also Gary 
 
         Plastic Packaging Corp. v. Merrill Lynch, 756 F 2d 230, 236 (2d 
 
         Cir. 1982); Koster v. Chase Manhattan Bank, 93 FRD 471, 474 
 
         (SDNY 1982).
 
         
 
              It has long been the policy of this agency that there 
 
         should be a full disclosure of all information to the other 
 
         side.  It is the view of this agency that justice is not served 
 
         by surprise evidence at hearing.  Also, a full disclosure of 
 
         all factual claims and defenses is necessary to promote 
 
         prehearing settlements so necessary to an orderly operation of 
 
         the Iowa Workers' Compensation System.
 
         
 
                                    ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
              I.  Whether claimant is barred from collecting workers' 
 
         compensation benefits due to a misrepresentation in an employment 
 
         application;
 
         
 
             II.  Whether claimant received an injury arising out of and 
 
         in the course of his employment;
 
         
 
             III. Whether there is a causal relationship between the work 
 
         injury and the claimed disability;
 
         
 
             IV.  The extent of weekly disability benefits to which 
 
         claimant is entitled; and,
 
         
 

 
         
 
         
 
         
 
         CULLEY V. HUMAN RESOURCES, INC.
 
         PAGE   4
 
         
 
              V.  The extent of claimant's entitlement to medical benefits 
 
         under Iowa Code section 85.27.
 
         
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  For the sake of brevity, only the evidence most pertinent 
 
         to this decision is discussed.  Whether or not specifically 
 
         referred to in this summary, all of the evidence received at the 
 
         hearing was considered in arriving at this decision.  As will be 
 
         the case in any attempted summarization, conclusions about what 
 
         the evidence offered may show are inevitable.  Such conclusions, 
 
         if any, in the following summary should be considered as 
 
         preliminary findings of fact.
 
         
 
              Claimant testified that he worked for Human Resources as a 
 
         temporary spot laborer for approximately three months prior to 
 
         the alleged work injury on September 8, 1986.  Claimant worked an 
 
         average of three days per week.  He stated that his duties 
 
         consisted of mixing cheeses at a plant operated by Chrystal 
 
         Foods.  This job involved the regular lifting of 20 to 100 
 
         pounds.  Claimant's supervisor testified that claimant was a good 
 
         employee and received a raise during his employment.
 
         
 
              Claimant has not worked for Human Resources or any other 
 
         employer since leaving Human Resources following the work injury 
 
         in this case.  When he applied for work at Human Resources, 
 
         claimant filled out an employment application which stated that 
 
         he had no physical impairments.  Claimant's supervisor, Breci, 
 
         testified that he asked claimant if he could physically handle 
 
         the mixing job before it was assigned to him and that claimant 
 
         told him that he was capable of performing such work.
 
         
 
              Claimant testified that on September 8, 1986, while lifting 
 
         a 100 pound sack of flour in his mixing job at Human Resources, 
 
         he suddenly felt the onset of severe low back pain which 
 
         eventually radiated into his lower extremities more on the left 
 
         than on the right.  Claimant testified that he requested 
 
         medication in the form of aspirin from a fellow employee, Porter.  
 
         Porter testified that he indeed requested aspirin from her but 
 
         did not mention anything about a work injury.  Claimant said that 
 
         he attempted to complete the work that day but the pain and 
 
         numbness in his back and legs compelled him to seek medical 
 
         treatment at a local hospital emergency room.
 
         
 
              At the hospital, claimant reported to the physicians on duty 
 
         that he injured his back while lifting a 100 pound sack of flour 
 
         at work and the hospital personnel diagnosed that claimant 
 
         suffered low back strain and prescribed muscle relaxants and pain 
 
         medication.  Claimant then went to the VA Hospital and reported 
 
         the same history with gradual worsening of pain and numbness in 
 
         both legs.  The VA Hospital prescribed medication and hot packs 
 
         and claimant was to report to their orthopedic clinic within 
 
         seven days.
 
         
 
             Claimant attempted to return to work on September 10 and 11, 
 
         but according to claimant it became "harder and harder" to do the 
 
         job.  Claimant returned to the VA Hospital on September 16, 1986 
 
         for further tests including a CT scan which revealed 
 

 
         
 
         
 
         
 
         CULLEY V. HUMAN RESOURCES, INC.
 
         PAGE   5
 
         
 
         abnormalities consisting of diffuse bulging annulus, L4-5, mild 
 
         degenerative changes L4-5 and L5-Sl facets but no disc 
 
         herniation.
 
         
 
              In October, 1986, claimant was hospitalized for 
 
         approximately one week under the care of R. Schuyler Gooding, 
 
         M.D., a neurosurgeon.  Hospital tests at that time revealed no 
 
         neurosurgical abnormality and in the opinion of Dr. Gooding 
 
         claimant was discharged for conservative care upon a diagnoses of 
 
         lumbar strain, improving.
 
         
 
              Following,the October hospitalization, claimant's care was 
 
         assumed by M. P. Margules, M.D., another neurosurgeon and 
 
         claimant was again hospitalized for further tests in November, 
 
         1986.  Magnetic resonance imaging at this time revealed, 
 
         according to Dr. Margules, degenerative and midline disc 
 
         herniation at the L4-5 interspace.  In January, 1986, Dr. 
 
         Margules performed a surgical excision of the degenerative disc 
 
         at L4-5.  According to Dr. Margules, claimant reached maximum 
 
         healing following this surgery on August 15, 1987 and suffered a 
 
         15 percent permanent partial impairment to the body as a whole as 
 
         a result of the September 8, 1986 injury.  Dr. Margules stated 
 
         that claimant should perform no lifting over 25 to 30 pounds and 
 
         no prolonged standing over two hours and no bending or stooping.  
 
         In his testimony claimant stated at the present time he continues 
 
         to experience low back pain and pain in both legs.  He states 
 
         that he cannot sit without pain for more than an hour and cannot 
 
         sleep throughout the night.  He states that he continues to take 
 
         pain medication.
 
         
 
              As claimant indicated to his physicians following the 
 
         alleged work injury of September, 1986, claimant's lower back was 
 
         previously injured in a work related accident on September 6, 
 
         1983 while working in a meat packing plant.  Claimant was 
 
         initially diagnosed at that time as having a herniated disc at 
 
         L4-5 and treated conservatively with medication and physical 
 
         therapy for a few months.  However, during a hospitalization in 
 
         May, 1984, the primary diagnosis changed to a bulging disc at 
 
         L5-Sl level.  Initially a CT scan at that time indicated an 
 
         abnormality at L4-5 but a subsequent discogram found that 
 
         interspace to be normal.  In May, 1984 claimant underwent a 
 
         chymopapain surgical injection at the L5-Sl interspace by John 
 
         Connolly, M.D., an orthopedic surgeon at the University of 
 
         Nebraska Medical Center.  In October, 1984 Dr. Connolly released 
 
         claimant for work but instructed claimant to avoid heavy lifting 
 
         of more than 30 pounds or prolonged standing for more than two 
 
         hours.  It was Dr. Connolly's opinion that claimant had suffered 
 
         a 15 percent permanent partial impairment to the body as a whole 
 
         at that time.
 
         
 
              In November, 1984, this agency approved a full commutation 
 
         settlement of claimant's entitlement to workers' compensation 
 
         benefits as a result of the work injury of September 6, 1983.  As 
 
         a part of this commutation it was stipulated by the parties at 
 
         the time that claimant had suffered a 30 percent permanent 
 
         partial disability to the body as a whole as a result of the work 
 
         injury. In support of his request to this agency to approve of 
 
         this settlement, claimant stated in part as follows to this 
 
         agency with reference to the extent of his disability at that 
 
         time.
 

 
         
 
         
 
         
 
         CULLEY V. HUMAN RESOURCES, INC.
 
         PAGE   6
 
         
 
         
 
              I was released from the care of Dr. Connolly October 
 
              15, 1984, and advised I could return to work, but I was 
 
              to avoid lifting more than 30 pounds and to avoid any 
 
              prolonged standing.  I am to avoid any repetitive 
 
              twisting, bending, turning and stooping.  I am still 
 
              experiencing pain and discomfort in many portions of my 
 
              body, and recognize that I have severe limitations on 
 
              my ability to engage in work involving physical 
 
              exertion now and in the future.
 
         
 
              Approximately one year later, claimant was examined by K. 
 
         Crowley, M.D., for the rehabilitation branch of the Iowa 
 
         Department of Public Instruction.  Dr. Crowley stated that 
 
         claimant was experiencing persistent pain especially standing 
 
         after two hours and was unable to bend or lift.  His diagnosis 
 
         was low back pain, post chemonuceleolysis and gave a prognosis 
 
         that claimant will probably always be somewhat restricted as far 
 
         as his back function is concerned.  The doctor stated that 
 
         claimant would be a candidate for future laminectomy surgery if 
 
         he wishes.  It was concluded at that time by the rehabilitation 
 
         branch that there was a reasonable expectation that vocational 
 
         rehabilitation could result in gainful employment and stated that 
 
         claimant would approach the VA Hospital as to the possibility of 
 
         having further back surgery in January, 1986.  Claimant was 
 
         scheduled for a tour day evaluation in April, 1986 but claimant 
 
         failed to appear for this evaluation.  In June, 1986, claimant 
 
         kept an appointment with the rehabilitation branch personnel and 
 
         stated that he had been working for three months as a truck 
 
         driver and was currently working part-time for Human Resources at 
 
         Crystal Foods; At that time the rehabilitation counselor stated 
 
         as follows:
 
         
 
              Claimant indicates that his back is giving him problems 
 
              on occasion, however as long as he is able to move 
 
              around and not have to remain in one position for a 
 
              long period of time he is okay.  He said that he can 
 
              lift up to 35 lbs. without any problem.  Claimant 
 
              basically would like to have a job and he said that he 
 
              would work either in Council Bluffs or Omaha.
 
         
 
              Claimant and his wife testified at hearing that claimant 
 
         improved after the September, 1983 injury and the May, 1984 
 
         surgery.  Both testified that he was able to lift heavy objects 
 
         prior to the September, 1986 injury at Human Resources.  Mrs. 
 
         Culley testified that claimant was able to move furniture, work 
 
         on cars and on one instance change a motor prior to September, 
 
         1986.  Claimant stated that Dr. Connolly told him that he would 
 
         improve and he did.  Claimant testified that after Dr. Connolly 
 
         released him, he moved to Oregon and worked for GNP Plastics for 
 
         three weeks lifting 50 to 150 pounds with no problem.  Claimant 
 
         said that he then returned to Iowa in November, 1985 and worked 
 
         as a truck driver loading and unloading trucks and lifting up 
 
         from 80 to 150 pounds of meat in this process.  Claimant admitted 
 
         that his back bothered hap from, this work and sought treatment 
 
         on one occasion for muscle strain.  After returning to work 
 
         following his muscle strain claimant quit after a few weeks for 
 
         the stated reason that he was seeking more money.  Claimant 
 
         testified that he worked then for a seed dealer for three months 
 
         lifting up to 50 pound sacks and driving a truck.  He said that 
 

 
         
 
         
 
         
 
         CULLEY V. HUMAN RESOURCES, INC.
 
         PAGE   7
 
         
 
         he left this employment at the end of this planting season and 
 
         felt good at the time.  Claimant explained that he stated that he 
 
         had no functional impairments in his employment application to 
 
         Human Resources because he felt that his experience at the seed 
 
         dealer demonstrated that he had no functional impairments.
 
         
 
              In cross-examination, claimant stated that he was not 
 
         advised to avoid repetitive lifting, stooping or bending after 
 
         the 1983 injury.  Claimant said that he "basically" had no 
 
         problem with his back in 1985 and denies contemplating surgery in 
 
         December, 1985.  He stated that he talked to rehabilitation 
 
         counselors in 1985 to find easier work.  Claimant could not 
 
         recall the examination performed by Dr. Crowley.  Claimant 
 
         finally stated that with reference to his back, his condition now 
 
         is similar to the way it was after the 1983 injury.
 
         
 
              Claimant has not returned to work in any capacity since 
 
         leaving Human Resources.  At the insistance of a vocational 
 
         rehabilitation counselor, Karen Stricklett, retained by 
 
         defendants, claimant has unsuccessfully attempted work hardening 
 
         programs on two occasions but his physicians ended each attempt 
 
         due to claimant's pain.  Raymond Macrander, a state vocational 
 
         rehabilitation counselor testified that he believes that 
 
         claimant's pain is real.  He states that claimant is unemployable 
 
         and any attempt to place him in gainful employment would not be 
 
         successful due to claimant's physical restrictions and pain.  
 
         Stricklett testified that claimant is able to be employed if 
 
         claimant is given the right type of intervention but admitted 
 
         that claimant's pain and history of back problems would present 
 
         serious employability problems.  This was basically the 
 
         conclusion of James Rogers, another rehabilitation consultant 
 
         retained by claimant.
 
         
 
              From his appearance and demeanor while testifying about his 
 
         alleged recovery from permanent impairment following the 1983 
 
         injury, claimant did not appear credible during 
 
         cross-examination.  His demeanor while testifying about the 
 
         circumstances surrounding the alleged work injury on September 8, 
 
         1986 however appeared credible.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              I.  Defendants claim a defense that claimant is barred from 
 
         receiving workers' compensation benefits by reason of his 
 
         misrepresentations contained in his applications for employment 
 
         with Human Resources.  Such a defense is discussed in Larson's 
 
         Workers' Compensation Law, section 47.53:  In those jurisdictions 
 
         where the workers' compensation statute has not specifically 
 
         adopted an employee's misrepresentation of his physical condition 
 
         as a defense, the Larson rule was judicially adopted under 
 
         theories of mutuality of contract and equitable estoppel.  
 
         However, Iowa has not adopted this rule either by statute or 
 
         common law and this agency has not adopted the rule.  See Keefer 
 
         v. Swift Independent Packing, (Appeal Decision September, 1986); 
 
         Bowman v. Kroblin Refrigerated, (Appeal Decision 1983).  The only 
 
         Iowa Supreme Court case on this issue occurred in 1918 while the 
 
         court held that a false statement of age on an employment 
 
         application by a minor was no defense to a workers' compensation 
 
         claim by that minor.  Secklich v. Harris-Emery Co., 184 Iowa 
 
         1025, 169 N.W. 325 (1918).
 

 
         
 
         
 
         
 
         CULLEY V. HUMAN RESOURCES, INC.
 
         PAGE   8
 
         
 
         
 
              As workers' compensation is a creature of statute, the 
 
         statute itself provides the best guidance on this issue.  Iowa 
 
         Code section 85.18 states as follows:  "No contract, rule, or 
 
         device whatsoever shall operate to relieve the employer, in whole 
 
         or in part, from any liability created by this chapter except as 
 
         herein provided."
 
         
 
              Iowa Code section 85.16 lists the employer's defenses which 
 
         operate to bar a compensation claim and misrepresentation is not 
 
         mentioned.. Despite the many prior decisions of this agency 
 
         awarding benefits in cases where misrepresentation has occurred, 
 
         the legislature has saw fit not to amend section 85.16 to include 
 
         such a defense.  However, any misleading or false statements in 
 
         an employment application does have relevance to the issue of 
 
         claimant's credibility when he seeks compensation benefits at 
 
         hearing.
 
         
 
              II.  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 of 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.
 
         
 
              In the case sub judice, claimant has shown a work injury 
 
         despite his lack of credibility on the issue of his alleged 
 
         recovery from his disability immediately prior to the alleged 
 
         work injury in this case.  Normally, claimant's lack of 
 
         credibility in one aspect of his testimony would taint other 
 
         aspects of his testimony.  However, a clear difference in 
 
         demeanor was observed by the undersigned and these observations 
 
         formed a mental impression at the hearing that claimantOs account 
 
         of the events of September 8, 1986 were indeed true.   Due to 
 
         sanctions imposed, claimant's story was uncontroverted except 
 
         that he failed to immediately report the injury which is not 
 
         unusual in the experience of this administrative law judge.  The 
 
         fact that claimant suffered pain while at work was verified by 
 
         fellow employees.  Also, given his job duties and his permanent 
 
         restrictions imposed after the 1984 surgery, it would be 
 
         surprising if claimant had not injured himself while regularly 
 
         lifting 100 pound sacks of flour.  Also, the injury in this case 
 
         is located at a different spinal level, L4-5 then the 1983 injury 
 
         which was ultimately diagnosed as a bulge of the L5-Sl level.  
 
         The discogram in 1984 indicated that the L4-5 level was normal at 
 
         that time.
 
         
 
              III.  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 
 

 
         
 
         
 
         
 
         CULLEY V. HUMAN RESOURCES, INC.
 
         PAGE   9
 
         
 
         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 
 
         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 alone 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. Aase 
 
         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 
 

 
         
 
         
 
         
 
         CULLEY V. HUMAN RESOURCES, INC.
 
         PAGE  10
 
         
 
         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 thereat 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 at bar, claimant contends that he has suffered 
 
         additional disability as a result of a work injury herein due to 
 
         additional permanent impairment to the body as a whole.  First, 
 
         claimant was not credible in the extent of his recovery from 
 
         permanent impairment following the 1983 injury.  His demeanor was 
 
         questionable and his testimony was inconsistent with written 
 
         statements made by him to this agency in the commutation 
 
         settlement and with oral statement he made to Dr. Crowley in 
 
         November, 1985 and to his vocational counselors in June, 1986 
 
         while he was working for Human Resources.  It is quite apparent 
 
         that claimant was significantly physically impaired before the 
 
         work injury of September 8, 1986 in the manner described to Drs.  
 
         Connolly and Crowley.  The only doctor to render an opinion as to 
 
         the extent of claimant's impairment following the September 8, 
 
         1986 injury is Dr. Margules who opines that the injury to the 
 
         L4-5 level resulted in a 15 percent permanent partial impairment 
 
         to the body as a whole.  ClaimantOs argument in his brief that 
 
         this is an additional impairment over and above the 15 percent 
 
         prior impairment caused by the 1983 injury is accepted as it is 
 
         clear that Dr. Margules in his reports had knowledge of the 
 
         extent of claimant's problems prior to September, 1986.  
 
         Therefore, the preponderance of the evidence demonstrates that 
 
         claimant suffered an additional 15 percent permanent partial 
 
         impairment to the body as a whole as a result of the September 8, 
 
         1986 injury to the L4-5 level of his spine.
 
         
 
              IV.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  As the claimant has shown that 
 
         the work injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined front examination of several 
 
         factors.  These factors 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 
 

 
         
 
         
 
         
 
         CULLEY V. HUMAN RESOURCES, INC.
 
         PAGE  11
 
         
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  See 
 
         Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 
         28, 1985).
 
         
 
              In the case sub judice, claimant is 42 years of age and 
 
         should be at the prime of his life.  His loss of earning capacity 
 
         from his disability is greater than would be the case for a 
 
         younger or older individual.  Claimant lacks a high school 
 
         education and exhibited below average intelligence at the 
 
         hearing.  Given a work history of only manual labor, claimant's 
 
         potential for vocational rehabilitation appears quite low.
 
         
 
              However, despite claimant's testimony to the contrary, 
 
         claimant's medical condition immediately before the work injury 
 
         of September, 1986 was far from excellent and he was very 
 
         significantly impaired.  He had a prior existing 15 percent 
 
         permanent partial impairment and more importantly from an 
 
         industrial disability standpoint, claimant was told by his 
 
         physicians to avoid lifting in excess of 30 pounds, repetitive 
 
         bending, stooping or lifting and prolonged standing for more than 
 
         two hours.
 
         
 
              Claimant's work history between 1983 and 1986 consisted of 
 
         relatively brief temporary jobs which he claimed involved heavy 
 
         manual labor but again claimant was not found to be credible on 
 
         this aspect of his testimony.  Claimant admitted to experiencing 
 
         problems with heavy work and seeking medical treatment during 
 
         this time.
 
         
 
              As a result of the work injury of September, 1986, claimant 
 
         has an additional 15 percent permanent partial impairment to the 
 
         body as a whole. however, again what is more important from an 
 
         industrial disability standpoint are actual work or activity 
 
         restrictions, not a particular percentage of impairment.  When 
 
         compared to claimant's current restrictions following the 1986 
 
         injury with those described by Dr. Connolly, Dr. Crowley and 
 
         claimant himself in the commutation papers after the 1983 injury, 
 
         little difference can be found.  Claimant was severely disabled 
 
         before September, 1986 and remains severely disabled today.  
 
         ClaimantOs intermittent spotty employment and need to seek 
 
         vocational rehabilitation counseling in 1985 is clear evidence of 
 
         this prior disability.  Although a different portion of the back 
 
         was injured in 1986 and claimant probably has suffered additional 
 
         disability as a result of that incident, the additional 
 
         disability appears quite small.
 
         
 
              After examination of all the factors it is found as a matter 
 
         of fact that claimant has suffered as a result of the September 
 
         8, 1986 injury only an additional 15 percent loss of his earning 
 
         capacity from that which existed prior to September 8, 1986.  
 
         Based upon such a finding, claimant is entitled as a matter of 
 
         law to 75 weeks of permanent partial disability benefits from 
 
         Human Resources under Iowa Code section 85.34(2)(u) which is 15 
 
         percent of 500 weeks, the maximum allowable number of weeks for 
 
         an injury to the body as a whole in that subsection.
 
         
 
              As claimant has established entitlement to permanent partial 
 
         disability benefits, claimant is entitled to weekly benefits for 
 

 
         
 
         
 
         
 
         CULLEY V. HUMAN RESOURCES, INC.
 
         PAGE  12
 
         
 
         healing period under Iowa Code section 85.34 during an absence 
 
         from work until he reaches maximum healing.  According to 
 
         claimant's treating physician, Dr. Margules, maximum healing 
 
         occurred on August 15, 1987.  The parties stipulated that 
 
         claimant was not working from September 12, 1986 through August 
 
         15, 1987.
 
         
 
              V.  Pursuant to Iowa Code section 85.27, claimant is 
 
         entitled to either an order directing defendants to pay 
 
         reasonable medical expenses for treatment of the work injury or 
 
         to an order of reimbursement if claimant has paid those expenses.  
 
         Krohn v. State, 420 N.W.2d 463 (Iowa 1988).
 
         
 
              All of the medical expenses listed in the attachment to the 
 
         prehearing report are found to be causally connected to the work 
 
         injury herein except for the Fremont County Relief office 
 
         expenses.  Rent and utility expenses are not medical expenses and 
 
         are not reimbursable.  The one item of medical expense was not 
 
         explained in the record.  The expenses awarded total $13,474.15.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  On September 8, 1986, claimant suffered an injury to the 
 
         L4-5 spinal level of his low back which arose out of and in the 
 
         course of employment with Human Resources.  Claimant was lifting 
 
         a 100 pound sack of flour at the time of the incident.
 
         
 
              2.  The work injury of September 8, 1986 was a cause of a 
 
         period of disability from work beginning on September 12, 1986 
 
         through August 15, 1987, at which time claimant reached maximum 
 
         healing.  Claimant underwent extensive but unsuccessful 
 
         conservative care until January, 1987 at which time surgery to 
 
         excise a herniated disc was performed.
 
         
 
              3.  The work injury of September 8, 1986 was a cause of an 
 
         additional 15 percent permanent partial impairment to the body as 
 
         a whole.  As a result of a work injury in 1983 while working for 
 
         a different employer, claimant had suffered a 15 percent 
 
         permanent partial impairment as a result of an injury consisting 
 
         of a bulging disc at the L5-S1 level of claimant's spine.  
 
         Claimant did not recover from the 1983 permanent partial 
 
         impairment prior to September 8, 1986.
 
         
 
              4.  The work injury of September 8, 1986 and the resulting 
 
         impairment was a cause of a 15 percent loss of earning capacity. 
 
          Claimant is 42 years of age.  Claimant lacks a high school 
 
         education and appears to possess below average intelligence.  
 
         Claimant's work history consists only of manual labor.  
 
         Claimant's current work or activity restrictions namely, no 
 
         lifting in excess of 30 pounds; no repetitive lifting, bending 
 
         and stooping; and, no prolonged standing and sitting all 
 
         preexisted September 8, 1986.  Claimant has only suffered a small 
 
         amount of additional disability as a result of the additional 
 
         injury to his low back.
 
         
 
              6.  The medical expenses listed in the prehearing report are 
 
         fair and reasonable and were incurred by claimant for reasonable 
 
         and necessary treatment of his low back condition as a result of 
 
         the work injury of September 8, 1986.
 
         
 

 
         
 
         
 
         
 
         CULLEY V. HUMAN RESOURCES, INC.
 
         PAGE  13
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         entitlement to permanent partial disability, healing period and 
 
         medical benefits awarded below.
 
         
 
                                      ORDER
 
         
 
              1.  Defendants shall pay to claimant seventy-five (75) weeks 
 
         of permanent partial disability benefits at the rate of 
 
         seventy-two and 67/100 dollars ($72.67) per week from August 16, 
 
         1987.
 
         
 
              2.  Defendants shall pay to claimant healing period benefits 
 
         from September 12, 1986 through August 15, 1987 at the rate of 
 
         seventy-two and 67/100 dollars ($72.67) per week.
 
         
 
              3.  Defendants shall pay the medical expenses listed in the 
 
         prehearing report which total thirteen thousand tour hundred 
 
         seventy-four and 15/100 dollars ($13,474.15) except those from 
 
         Fremont County, Iowa.  The medical expense payments shall be made 
 
         directly to the provider if unpaid or to claimant if previously 
 
         paid by him.  Claimant's attorney shall have a lien on these 
 
         medical expenses before they are paid to any provider in the 
 
         maximum amount of thirty-three and one-third percent (33 1/3%) 
 
         for any attorney fees earned herein.
 
         
 
              4.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive a credit against this award for all 
 
         benefits previously paid.
 
         
 
              5.  Defendants shall pay interest on weekly benefits ordered 
 
         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 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 August, 1988.
 
         
 
         
 
         
 
         
 
                                        LARRY P. WALSHIRE
 
                                        DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
        
 

 
         
 
         
 
         
 
         CULLEY V. HUMAN RESOURCES, INC.
 
         PAGE  14
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Sheldon M. Gallner
 
         Attorney at Law
 
         803 Third Ave.
 
         P. O. Box 1588
 
         Council BluFfs, Iowa 51502
 
         
 
         Mr. Gregory G. Barntsen
 
         Attorney at Law
 
         35 Main Place
 
         P. O. Box 249
 
         Council Bluffs, Iowa 51502
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                   1800
 
                                                   Filed August 17, 1988
 
                                                   LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ELVIN LEROY CULLEY,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                     File No. 834960
 
         HUMAN RESOURCES, INC.,
 
                                                 A R B I T R A T I O N
 
              Employer,
 
                                                     D E C I S I 0 N
 
         and
 
         
 
         EMPLOYERS MUTUAL INS.CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1800
 
         
 
              Despite a lack of credibility claimant was able to establish 
 
         a work injury and a small amount of entitlement to permanent 
 
         partial disability.  It was found that claimant was severely 
 
         disabled before the work injury and remains severely disabled 
 
         today.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         ELVIN LEROY CULLEY,
 
         
 
              Claimant,                         File No. 834960
 
         
 
         vs.                                  A D D E N D U M   T O
 
         
 
         HUMAN RESOURCES, INC.,                 D E C I S I O N
 
         
 
              Employer,
 
         
 
         and
 
         
 
         EMPLOYERS MUTUAL INS. CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
              Claimant's request for Iowa Code section 86.13 penalty 
 
         benefits is denied.  As the denial of the claim was not 
 
         unreasonable in light of the circumstances and the prior history 
 
         of injury.
 
         
 
         
 
              Signed and filed this 22nd day of August, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         LARRY P. WALSHIRE
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Sheldon M. Gallner
 
         Attorney at Law
 
         803 Third Ave.
 
         P. O. Box 1588
 
         Council Bluffs, Iowa 51502
 
         
 
         Mr. Gregory G. Barntsen
 
         Attorney at Law
 
         35 Main Place
 
         P. O. Box 249
 
         Council Bluffs, Iowa 51502