9998
 
            Filed March 20, 1992
 
            BYRON K. ORTON
 
            EAN
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BENNETT NELSON,               :
 
                                          :        File Nos. 916703
 
                 Claimant,                :                  837062
 
                                          :
 
            vs.                           :          A P P E A L
 
                                          :
 
            WILSON FOODS, INC.,           :        D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            9998
 
            Summary affirmance of deputy's decision filed October 10, 
 
            1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BENNETT NELSON,               :
 
                                          :
 
                 Claimant,                :       File Nos. 837062
 
                                          :                 916703
 
            vs.                           :
 
                                          :    A R B I T R A T I O N
 
            WILSON FOODS, INC.,           :
 
                                          :       D E C I S I O N
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            On July 26, 1989, Bennett Nelson (claimant) filed two 
 
            petitions for arbitration as a result of injuries to 
 
            claimant's back occurring on October 28, 1986 and April 4, 
 
            1989 respectively.  Wilson Foods Corp. (Wilson or defendant) 
 
            was identified as employer and self insured.  On April 29, 
 
            1991 these matters came on for hearing in Storm Lake, Iowa.  
 
            The parties appeared as follows:  the claimant in person and 
 
            by his counsel Harry Smith of Sioux City, Iowa and Wilson by 
 
            its counsel David Sayre of Cherokee, Iowa.  These cases were 
 
            consolidated on April 5, 1990.
 
            The record in this proceeding consisted of the following:
 
            1.  The live testimony of the claimant, and Michael Payne.  
 
            2.  Joint exhibits 1-13.
 
            stipulations
 
            
 
                 In connection with both injuries, the parties 
 
            stipulated to the following matters at the time of the 
 
            hearing:
 
            a.  An employer-employee relationship existed between 
 
            claimant and employer at the time of the alleged injury.
 
            b.  The type of permanent disability, if the injury is found 
 
            to be a cause of permanent disability, is industrial 
 
            disability to the body as a whole.
 
            c.  At the time of both injuries, claimant was married and 
 
            was entitled to two exemptions.
 
            d.  The parties agree that the amount of costs to be taxed 
 
            for both cases equals $65.00.
 
            
 
                 Additionally, in connection with the injury that 
 
            occurred on October 28, 1986, the parties agreed as follows:
 
            a.  The claimant sustained an injury on October 28, 1986, 
 
            which arose out of and in the course of his employment.
 
            b.  The injury caused temporary disability that has been 
 
            paid.
 
            c.  The extent of entitlement to weekly compensation for 
 
            temporary total disability or healing period, has been paid.
 
            d.  The commencement date for permanent partial disability, 
 
            is October 28, 1986.
 
            e.  The rate of compensation, in the event of an award, is 
 

 
            
 
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            $263.79 per week. 
 
            f.  Defendant makes no claim for employee nonoccupational 
 
            group health plan benefits paid prior to hearing.
 
            Additionally, in connection with the injury that occurred on 
 
            April 1, 1989, the parties agreed as follows:
 
            a.  The commencement date for permanent partial disability, 
 
            is June 4, 1989.
 
            b.  The rate of compensation, in the event of an award, is 
 
            $271.30 per week based on a gross weekly wage of $433.50 per 
 
            week.
 
            c.  Defendants make a claim for employee nonoccupational 
 
            group health plan benefits paid prior to hearing in the 
 
            amount of $1,861.74.
 
            issues
 
For the injury that occurred on October 28, 1986, the 
 
            issue for resolution is as follows:
 
            Whether a causal relationship exists between claimant's 
 
            claimed injuries and the claimed disability and the nature 
 
            and extent of any entitlement to benefits, if any.
 
            For the injury that occurred on April 1, 1989, the issues 
 
            for resolution are as follows:
 
            1.  Whether claimant sustained an injury on April 1, 1989 
 
            which arose out of and in the course of his employment with 
 
            Wilson.
 
            2.  Whether a causal relationship exists between claimant's 
 
            claimed injuries and the claimed disability and the nature 
 
            and extent of any entitlement to benefits, if any.
 
            FINDINGS OF FACT
 
            After considering all of the evidence and the arguments of 
 
            counsel, the undersigned makes the following findings of 
 
            fact and conclusions of law.
 
            
 
                 1.  At the time of hearing, claimant was 55 years old.  
 
            At the time of his first injury, on October 28, 1986, 
 
            claimant was almost 51 years old.  At the time of the second 
 
            incident, claimant was 53 years old.  Claimant is a high 
 
            school graduate and has had no post high school educational 
 
            training.  Claimant has received on-the-job training.  After 
 
            claimant left high school, claimant worked as a farmer, a 
 
            carpenter, and as a welder.  In 1958, claimant was drafted 
 
            and served two years in the United States Army.  Claimant 
 
            was honorably discharged in August of 1960.  After claimant 
 
            was discharged, claimant owned his own farm, worked at a 
 
            manufacturing job, worked for IBP in Dakota City and then 
 
            took a job with Wilson in 1968.
 
            
 
                 2.  While claimant has been with Wilson, the focus of 
 
            Wilson's business has changed.  In 1968, Wilson was a pork 
 
            and beef slaughter plant.  Wilson discontinued the slaughter 
 
            portion of its business in Cherokee.  Now the plant 
 
            processes meat only.    Claimant has worked at a variety of 
 
            jobs at Wilson.  Claimant has worked on the hog kill floor.  
 
            He has marked and popped kidneys, measured back fat, and 
 
            pulled leaf lard.  Since 1986, claimant has worked in the 
 
            wiener room where he has boxed wieners and picked out 
 
            wieners that did not meet Wilson's standards.  Additionally, 
 
            claimant has run the frank-o-matic and the peeler in this 
 

 
            
 
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            room.
 
            
 
                 3.  Claimant has had various work injuries in his 
 
            lengthy tenure with Wilson.  Claimant has suffered prior 
 
            back injuries beginning on January 11, 1984 when claimant 
 
            suffered a lumbar strain moving barrels on the dock he 
 
            slipped on some ice.  Claimant lost no time from this 
 
            injury.  Claimant's next injury was suffered on October 26, 
 
            1984, when he suffered a low back strain.  As a result of 
 
            this injury, claimant was off work until sometime after 
 
            November 16, 1984.  Claimant returned to work with no 
 
            restrictions.  
 
            
 
                 4.  On October 28, 1986, claimant was doing some rework 
 
            in the wiener room.  This job required claimant to dump 
 
            wieners into a tub for remixing.  Claimant was carrying this 
 
            tub of wieners on his shoulder when he slipped.  Claimant 
 
            did not fall.  At the time of this injury, claimant felt 
 
            pain in his back.  Claimant was returned to work on December 
 
            12, 1986.  After the accident on October 28, 1986, 
 
            claimant's x-rays showed some lipping of the vertebral 
 
            bodies in his lumbar spine.  No acute injury was seen at 
 
            that time.  However, radiologist D. C. Rife, M.D., noted 
 
            that there was some narrowing of the posterior spinal canal 
 
            consistent with spinal stenosis.  Claimant returned to work 
 
            with no restrictions after this injury.  Claimant was paid 
 
            temporary total disability for the period of time that he 
 
            was off work.
 
            
 
                 5.  On April 29, 1987, claimant again was complaining 
 
            of low back pain.  He indicated that there was no specific 
 
            injury.  He was given Advil and returned to work.
 
            
 
                 6.  On April 1, 1989, claimant was performing his 
 
            regular and usual duties in the wiener room.  In his job, 
 
            claimant twisted and turned to fill boxes full of wieners.  
 
            He stayed later that night than usual.  His back was sore 
 
            when he went home.  The next morning, claimant had 
 
            difficulty getting out of bed.  After claimant called in to 
 
            advise that he could not work due to back pain, he took 
 
            himself off work on April 3, 1989.  His statement to the 
 
            nurse was that he had back pain but there was no specific 
 
            injury.  
 
            
 
                 7.  After claimant reported his back pain, he was 
 
            examined by Dr. Garner, the company physician.  Dr. Garner 
 
            referred claimant for x-rays.  On April 4, 1989, Glenn Van 
 
            Roekel, M.D., x-rayed claimant's back.  The results from the 
 
            x-ray revealed that claimant's lumbar spine showed minimal 
 
            arthritic changes manifested by end plate lipping.  Dr. Van 
 
            Roekel noted that there was no rotatory scoliosis or 
 
            spondylolysis.  Dr. Van Roekel also performed a CT scan of 
 
            the lower three interspace levels.  He found that claimant 
 
            had a symmetrical bulging disc between L3 and L4 which was 
 
            producing slight pressure on the dural sac.  He also noted 
 
            that claimant had a slight bulging disc at L4-L5 and L5-S1 
 
            levels but they were not producing much pressure on the 
 
            dural sacs.  The CT scan also showed that claimant's central 
 
            neural canal size was generally small, but that the dural 
 

 
            
 
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            sac was also small.  The facet joints showed some arthritic 
 
            changes and there were arthritic changes around the L4 
 
            vertebral body.  Dr. Van Roekel's impression was that 
 
            claimant showed no evidence of definite disc herniation but 
 
            there was evidence of bulging disc and the size of the 
 
            neural canal could be contributing to claimant's problem.  
 
            Once the results of these studies had been obtained, Dr. 
 
            Garner referred claimant to Michael T. O'Neil, M.D., an 
 
            orthopedic surgeon in Omaha, Nebraska for further treatment. 
 
            
 
                 8.  On April 11, 1989, Dr. O'Neil had an opportunity to 
 
            examine claimant.  Claimant's history indicated that 
 
            claimant had experienced low back pain intermittently for 
 
            approximately seven years.  The precipitating injury, 
 
            according to claimant's history, was when he slipped on some 
 
            ice in 1984.  Claimant told Dr. O'Neil that he had returned 
 
            to work after the incident in 1984 and had no problems with 
 
            the exception of aching pain in his back until approximately 
 
            1986 when he experienced recurrent low back pain without 
 
            radicular symptoms.  Claimant again did well with physical 
 
            therapy and heat and was able to return to work and was 
 
            doing well until approximately March 30, 1989.  At that 
 
            time, for some reason claimant experienced an insidious 
 
            onset of low back pain and left buttock and left posterior 
 
            thigh pain to the level of the ankle.  Claimant further 
 
            indicated that since the onset of his symptoms his pain had 
 
            improved.  At the conclusion of his examination, Dr. O'Neil 
 
            indicated that claimant was suffering from low back pain 
 
            secondary to degenerative lumbar disc disease which was 
 
            verified by the CT scan.  Dr. O'Neil gave claimant a lifting 
 
            restriction of 30 pounds and he suggested that he go back to 
 
            work as of April 12, 1989 to determine whether he can 
 
            tolerate this type of activity.  Between April 12, 1989 and 
 
            claimant's return to work, claimant had a course of physical 
 
            therapy treatment.  The physical therapy was apparently 
 
            helpful and reduced claimant's pain symptoms.
 
            
 
                 9.  On May 23, 1989, claimant was again examined by Dr. 
 
            O'Neil, who noted that claimant had been doing quite well 
 
            with the physical therapy in Cherokee until he had a sudden 
 
            flare-up of back pain and left buttock and thigh pain 
 
            without any recognized change in his activity or trauma.  
 
            Claimant was reaching for a set of keys when he had the 
 
            flare up.  After the flare up, claimant did not return to 
 
            work due to persistent back symptoms and leg symptoms.  Dr. 
 
            O'Neil continued the physical therapy treatment and also 
 
            kept claimant off work.
 
            
 
                 10. Claimant was released to return to work on June 12, 
 
            1990.  Claimant's attendance record from Wilson indicates 
 
            that he was sick the week of June 4 through June 9, 1989 due 
 
            to his back.  Thereafter, claimant's attendance records show 
 
            that claimant had no further sick time after June 9, 1989 
 
            until June 14, 1990.  After June 14, 1990, claimant had no 
 
            other sick days during 1990.  Claimant had no sick days up 
 
            to the date of the hearing on April 29, 1991.  Moreover, 
 
            claimant has received no medical care for his back since 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            June 1990.
 
            
 
                 11. Claimant was evaluated by Pat Luse, D.C., on 
 
            February 19, 1990.  In the history given by claimant, 
 
            claimant identified his injury of October 28, 1986 as the 
 
            beginning point for his back problems.  Claimant did not 
 
            advise Dr. Luse that he had suffered injuries to his back on 
 
            January 11, 1984, and October 26, 1984.  Additionally, 
 
            claimant did not report to Dr. Luse that he had had 
 
            intermittent back pain from 1984 through 1989.  Claimant 
 
            indicated at the time of the examination that he was 
 
            currently experiencing lower back pain and leg pain which 
 
            began suddenly.  Claimant told Dr. Luse that he had a 
 
            lifting restriction of 25 pounds.  Dr. Luse reviewed the CT 
 
            scan study of the lumbar spine, and the reports from Dr. 
 
            Garner and Dr. O'Neil.  Dr. Luse found that claimant had a 
 
            limited range of motion in his back and that all other 
 
            sensory and motor test findings were normal.  Dr. Luse also 
 
            reviewed radiographic studies that were taken in his office 
 
            of claimant's lumbar spine.  Dr. Luse noted that there were 
 
            narrowed disc spaces between levels L3, L4, and L5 but that 
 
            the articular facets appear to be intact.  Dr. Luse found a 
 
            mild scoliosis to the right on the lumbar spine and that 
 
            claimant was suffering from bulging discs at L3, L4 and L5 
 
            and chronic lumbar sprain/strain with myositis and 
 
            neuralgia.  Based on this one time evaluation, Dr. Luse 
 
            found that claimant had an impairment of five percent.  
 
            Additionally, Dr. Luse restricted claimant from frequent 
 
            bending and repetitive motion activities involving 
 
            claimant's lower back.  Dr. Luse also imposed a lifting 
 
            restriction of no more than 25 pounds.  The bill that was 
 
            prepared by Dr. Luse's office for the evaluation totaled 
 
            $260.  Dr. Luse's bill indicated that the cause of 
 
            claimant's back injury was unknown.
 
            
 
                 12. A review of claimant's wage history with Wilson 
 
            shows that claimant has over the course of the past eight 
 
            years transferred from zero bracket rated jobs up to a high 
 
            of a four bracket rated jobs(1).  Claimant's base pay 
 
            currently is $9.07 per hour.  His current job is a three 
 
            bracket job.  Overtime work is frequently available at 
 
            Wilson.  Overtime work is paid at a rate of $13.61 per hour.  
 
            Wages for Sunday work are double time.
 
            
 
                 13. Overtime work is purely voluntary.  Overtime work 
 
            that is available is posted three days prior to the date 
 
            when workers are needed.  The list describes which 
 
            departments need workers.  Individuals volunteering for 
 
            overtime work does not know what work they will be doing 
 
            when they show up for the overtime hours. When the worker 
 
            arrives for overtime work, a list of jobs is available and 
 
            the most senior members then can go down the list and select 
 
            the jobs that they wish to perform.  Each department has its 
 
            own seniority ladder as well.  An overtime worker is 
 
            (1).  Wilson uses a bracket system to pay differentials to 
 
            its workers depending on the skill required to perform a 
 
            certain job.  Each bracket equals five cents per hour over 
 
            the base wage paid to the worker.
 
            
 
            
 
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            accorded no seniority in the department where they are doing 
 
            overtime work.  Generally, the least desirable job is the 
 
            work available for an overtime worker.  These jobs require 
 
            lifting, or are on a fast assembly line.  Michael Payne, 
 
            Wilson personnel and labor relations representative, 
 
            indicated that approximately 90-95 percent of the Saturday 
 
            and Sunday work would not be in excess of claimant's 30 
 
            pound lifting restriction.  If claimant found that the 
 
            overtime work he had been assigned was in excess of his 
 
            restrictions, he could decline the work and go home.  
 
            However, claimant was unaware that he was free to leave if 
 
            he determined that the particular job that he was going to 
 
            be assigned was in excess of his lifting restriction.  
 
            However, claimant did know that if he signed up for a job 
 
            and could not perform the job because of his restrictions he 
 
            would have the right to decline the job due to his 
 
            restrictions.  
 
            
 
                 14. Generally, claimant's department averages about 50 
 
            hours per week.  So claimant automatically has overtime in 
 
            his department in addition to the overtime he can elect to 
 
            work on the weekends.  Claimant did not work a substantial 
 
            amount of overtime after the 1986 injury.  He occasionally 
 
            tried overtime work but he did not perform it regularly.  
 
            Claimant has had an opportunity to work overtime since his 
 
            April 1, 1989 incident.  Claimant voluntarily self selected 
 
            himself out of jobs that were available for overtime because 
 
            he felt that the jobs would not meet his restrictions.  
 
            Claimant believes that his lifting restriction is 20 pounds 
 
            even though no doctor has indicated that his lifting 
 
            restriction is 20 pounds.  Claimant is able to do his work 
 
            with no problems currently.
 
            
 
                 15. Presently, claimant experiences pain when he comes 
 
            home from work.  His legs are a little aching and his back 
 
            is sore.    Claimant can not shovel snow and he has 
 
            flare-ups of back pain from time to time.
 
            CONCLUSIONS OF LAW
 
            Claimant urges that the combination of his injuries in 1986 
 
            and 1989 resulted in a permanent disability that has 
 
            impaired his earning capacity.  In order to reach this 
 
            conclusion, claimant urges that the April 1, 1989 injury was 
 
            a work related injury.  Wilson contends that the injury of 
 
            1986 was a temporary aggravation of claimant's preexisting 
 
            back condition and did not result in any loss of earning 
 
            capacity.  Moreover, Wilson argues that the injury 
 
            complained of on April 1, 1989 was not a work related 
 
            injury, but rather a nonwork related aggravation of 
 
            claimant's preexisting back condition.  
 
            I.  October 28, 1986
 
            A.  Whether a causal relationship exists between claimant's 
 
            claimed injuries and the claimed disability and the nature 
 
            and extent of any entitlement to benefits, if any.
 
            Initially, the question of whether the October 28, 1986 
 
            injury resulted in any permanency will be analyzed 
 
            separately to determine if this injury standing alone caused 
 

 
            
 
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            an industrial loss for the claimant.
 
            The claimant has the burden of proving by a preponderance of 
 
            the evidence that the injury of October 28. 1986, is 
 
            causally related to the disability on which he now bases his 
 
            claim.  Bodish v. Fischer, Inc., 133 N.W.2d 867, 868 (Iowa 
 
            1965);  Lindahl v. L. O. Boggs, 18 N.W.2d 607,613-14 (Iowa 
 
            1945).  A possibility is insufficient; a probability is 
 
            necessary.  Burt v. John Deere Waterloo Tractor Works, 73 
 
            N.W.2d 732, 738 (Iowa 1955).  The question of causal 
 
            connection is essentially within the domain of expert 
 
            testimony.  Bradshaw v. Iowa Methodist Hospital, 101 N.W.2d 
 
            167,171 (Iowa 1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 73 N.W.2d at 738.  The opinion of the 
 
            experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903, 907 (Iowa 1974).  Moreover, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Sondag, 220 N.W.2d at 907.  Finally, 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 material circumstances.  Bodish, 133 N.W.2d 
 
            at 870; Musselman, 154 N.W.2d at 133.  The Supreme Court has 
 
            also observed that greater deference is ordinarily accorded 
 
            expert testimony where the opinion necessarily rests on 
 
            medical expertise.  Sondag, 220 N.W.2d at 907.
 
            The only evidence of permanency that was offered by claimant 
 
            was the report of Dr. Luse.  Dr. Luse did not have an 
 
            accurate history of the claimant's back problems.  Claimant 
 
            omitted the fact that he had suffered an injury to his back 
 
            in 1984 and that he had complaints of back pain of unknown 
 
            origin intermittently since that time.  Dr. Luse was not 
 
            claimant's regular treating doctor.  Dr. Luse saw claimant 
 
            only once, nearly four years after the injury.  Finally, Dr. 
 
            Luse's conclusions are inconsistent.  He opines that the 
 
            cause of claimant's current back complaints all flow from 
 
            the injury of October 28, 1986 but the billing that was 
 
            submitted after the evaluation indicated that the cause of 
 
            the injury was unknown.  Given these factors, Dr. Luse's 
 
            opinion will be accorded little weight.
 
            Other than the opinion of Dr. Luse, there is insufficient 
 
            evidence in the record to demonstrate that claimant suffered 
 
            an industrial loss after his injury in 1986.  After a period 
 
            of physical therapy treatment and time off work claimant 
 
            returned to his job with no restrictions and no functional 
 
            impairment by the treating physician.  Claimant's earning 
 
            capacity was not diminished by the back injury he suffered 
 
            in 1986.  Claimant's wage history reflects that he was 
 
            regularly working 2 bracket jobs until 1989 when he bid onto 
 
            a zero bracket job.(2)  Claimant voluntarily changed his jobs 
 
            in the plant from the date of the 1986 injury.  Claimant was 
 
            not forced to take these jobs because of the injury to his 
 
            back.  With nothing more in the record, claimant has failed 
 
            to sustain his burden of proof on the issue of whether the 
 
            injury of 1986 caused a loss in earning capacity.  This 
 
            conclusion renders the other issues raised in connection 
 
            with the October 28, 1986 injury moot.
 
            II.  April 1, 1989 injury.
 
            (2).  Claimant's wage history reflects that he was performing 
 
            a 2 bracket job as a boxer at the time of the incident in 
 
            1986.  Thereafter, he bid to another 2 bracket job on April 
 
            14, 1987 as a frank feeder and inspector.  In 1988, claimant 
 
            bid to another 2 bracket job as a boxer.  Claimant was laid 
 
            off between July 3, 1989 and September 3, 1989.  He was 
 
            rehired as an inspector feeder in 1989 and then bid onto a 
 
            zero bracket job as a laborer.  On January 22, 1990, 
 
            claimant bid onto a 4 bracket job as an 8600 line and then 
 
            bid to a three bracket job on May 7, 1990 as an 8600.  
 
            
 
            
 
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            A.  Whether claimant sustained an injury on April 1, 1989 
 
            which arose out of and in the course of his employment with 
 
            Wilson.
 
            In connection with the April injury, claimant has the burden 
 
            of proving by a preponderance of the evidence that he 
 
            received an injury on April 1, 1989 which arose out of and 
 
            in the course of his employment.  McDowell v. Town of 
 
            Clarksville, 241 N.W.2d 904, 908 (Iowa 1976); Musselman v. 
 
            Central Telephone Co., 154 N.W.2d 128, 130 (Iowa 1967).  The 
 
            words "arising out of" have been interpreted to refer to the 
 
            cause and origin of the injury.  McClure v. Union County, 
 
            188 N.W.2d 283, 287 (Iowa 1971); Crowe v. DeSoto 
 
            Consolidated School District, 68 N.W.2d 63, 65 (Iowa 1955).  
 
            The words "in the course of" refer to the time, place and 
 
            circumstances of the injury.  McClure, 188 N.W.2d at 287; 
 
            Crowe, 68 N.W.2d at 65.  A determination that an injury 
 
            "arises out of" the employment contemplates a causal 
 
            connection between the conditions under which the work was 
 
            performed and the resulting injury; i.e., the injury 
 
            followed as a natural incident of the work.  Musselman, 154 
 
            N.W.2d at 130; Reddick v. Grand Union Tea Co., 296 N.W. 800, 
 
            804 (Iowa 1941).
 
            The Supreme Court has defined a personal injury for the 
 
            purposes of workers' compensation cases.  Almquist v. 
 
            Shenandoah Nurseries, 254 N.W. 35, 38 (Iowa 1934).  In this 
 
            case the Court found that a personal injury, is an injury to 
 
            the body, the impairment of health, or a disease, not 
 
            excluded by the Workers Compensation Act, which comes about, 
 
            not through the natural building up and tearing down of the 
 
            human body, but because of a traumatic or other hurt or 
 
            damage to the health or body of an employee.  The injury to 
 
            the human body must be something, whether an accident or 
 
            not, that acts extraneously to the natural processes of 
 
            nature, and thereby impairs the health, overcomes, injures, 
 
            interrupts, or destroys some function of the body, or 
 
            otherwise damages or injures a part or all of the body.  
 
            The Almquist Court further observed that while a personal 
 
            injury does not include an occupational disease under the 
 
            Workmen's Compensation Act, yet an injury to the health may 
 
            be a personal injury.  A personal injury includes a disease 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            resulting from an injury.  However, the result of changes in 
 
            the human body incident to the general processes of nature 
 
            do not amount to a personal injury.  This is true, even 
 
            though natural change may come about because the life has 
 
            been devoted to labor and hard work.  Results of those 
 
            natural changes do not constitute a personal injury even 
 
            though the same brings about impairment of health or the 
 
            total or partial incapacity of the functions of the human 
 
            body. 
 
            In this instance, there is insufficient evidence to 
 
            demonstrate that claimant suffered a work related injury or 
 
            even an aggravation at work of a preexisting back condition.  
 
            Claimant indicated that his pain had come on suddenly for 
 
            unknown reasons.  Claimant's history of back ailments 
 
            suggests that he has a history of intermittent back pain 
 
            with sudden onset of pain for no apparent reason.  This 
 
            symptom pattern occurred while claimant was off work and 
 
            reaching for a set of keys.  Claimant was examined by Dr. 
 
            O'Neil, an orthopedic surgeon on two occasions.  Dr. O'Neil 
 
            found that claimant had pain secondary to degenerative disk 
 
            disease.  He imposed a 30 pound lifting restriction on 
 
            claimant as a result of this diagnosis.  Dr. O'Neil did not 
 
            indicate that claimant's pain had been caused by his work.  
 
            Nor did Dr. O'Neil indicate that the degenerative disk 
 
            disease had been caused by or aggravated by claimant's work.  
 
            Claimant is not entitled to compensation for the results of 
 
            a preexisting injury or disease.  Bearce v. FMC Corporation, 
 
            465 N.W.2d 531, 536 (Iowa 1991); Olsen v. Goodyear Service 
 
            Stores, 125 N.W.2d 251, (1963); Rose v. John Deere Ottumwa 
 
            Works, 76 N.W.2d 756, 760-61 (Iowa 1956).  Without more, the 
 
            claimant has failed to sustain his burden of proof that he 
 
            suffered a work related injury or aggravation to a 
 
            preexisting condition as a result of his work.  
 
            Since the injury is not work related, claimant will take 
 
            nothing from this proceeding for the consequences of his 
 
            degenerative disk disease.  This conclusion renders the 
 
            other issues raised in connection with the April 1, 1989 
 
            injury moot.
 
            III.  Combination of the 1986 injury and 1989 injury.
 
            The claimant argues that the combination of these two 
 
            injuries has caused an industrial loss.  Wilson argues that 
 
            there has been no such showing.
 
            When considering the effects of multiple injuries on the 
 
            earning capacity of an injured worker, the case of Bearce v. 
 
            FMC Corporation, 465 N.W.2d 531 (Iowa 1991) is instructive.  
 
            The court found that an employer should not be responsible 
 
            for an industrial disability the employer did not cause.  
 
            Where claimant has suffered a prior injury but has returned 
 
            to work full time, earning full time wages without any 
 
            physical restrictions, does all the assigned work, seeks no 
 
            medical attention, loses no time from work due to the injury 
 
            and suffers no drop in pay, the claimant has not suffered an 
 
            industrial loss.  Bearce, 465 N.W.2d at 536-37.
 
            In this instance, there was no industrial loss from the 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            first injury.  Claimant returned to full time work, earning 
 
            full time wages without physical restrictions.  Claimant did 
 
            all of his assigned work including the usual overtime work 
 
            in the department.  Claimant sought medical attention for 
 
            his back on one occasion but was given pain medication for 
 
            the pain complaint.  Thereafter, claimant sought no medical 
 
            attention for his back for a nearly two years.  Claimant 
 
            indicated that he had lost no time from work for his first 
 
            back injury and his attendance records reflect this fact.  
 
            Finally, claimant has suffered no loss in pay.  He is 
 
            working the same regular and overtime hours that he was 
 
            working prior to the incident in 1986. Claimant had no 
 
            restrictions after the incident in 1986 and worked voluntary 
 
            overtime on an occasional basis.  There is insufficient 
 
            evidence to demonstrate that claimant is foreclosed from 
 
            voluntary overtime work.  Rather, claimant has not signed up 
 
            for overtime work because he believes that he cannot do the 
 
            work.  
 
            There may be a loss of earning capacity from the second 
 
            injury due to the lifting restriction, but this injury is 
 
            not work related.  When the two injuries are combined there 
 
            is still no industrial loss.  The lifting restrictions flow 
 
            from the second nonwork related injury.  The functional 
 
            impairment rating has been accorded no weight.  
 
            Consequently, the claimant has failed to sustain his burden 
 
            of proof in demonstrating that the combination of the two 
 
            injuries resulted in an industrial loss. 
 
            THEREFORE, it is ordered:
 
            1.  That claimant shall take nothing from these proceedings.
 
            2.  The costs of these actions shall be assessed to claimant 
 
            pursuant to rule 343 IAC 4.33.
 
            Signed and filed this ____ day of October, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          ELIZABETH A. NELSON
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr. Harry Smith
 
            Attorney at Law
 
            PO Box 1194
 
            Sioux City, IA  51102
 
            
 
            Mr. David L. Sayre
 
            Attorney at Law
 
            223 Pine St. 
 
            PO Box 535
 
            Cherokee, IA  51012
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1402.40 - 5-1108.50
 
                      Filed October 10, 1991
 
                      ELIZABETH A. NELSON
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            BENNETT NELSON, 	      :
 
                      		      :
 
                 Claimant, 	      :      File Nos. 837062
 
                      		      :                916703
 
		            vs.       :
 
                		      :    A R B I T R A T I O N
 
            WILSON FOODS, INC.,       :
 
		                      :       D E C I S I O N
 
                 Employer, 	      :
 
                 Self-Insured,        :
 
                 Defendant.           :
 
            ___________________________________________________________
 
            
 
            5-1402.40
 
            Claimant failed to sustain his burden of proof regarding 
 
            disability from injuries he suffered to his back.  Claimant 
 
            had no functional impairment from first injury in 1986 and 
 
            no restrictions.  Claimant continued to do the same work.  
 
            There was no loss of earning capacity.
 
            
 
            5-1108.50
 
            Claimant found to have degenerative disc disease, had a 
 
            flare-up of pain at home after working a shift.  The onset 
 
            of pain was sudden and according to the medical records of 
 
            unknown origin.  Claimant had symptom pattern of sudden 
 
            onset of back pain without any specific injury.  Evidence 
 
            was insufficient to support a finding that the second injury 
 
            arose out of and in the course of claimant's employment.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DONNA R. TEBBE, WIDOW OF      :
 
            DENNIS L. TEBBE, DECEASED;    :
 
            SANDRA SNITSELAAR AS NEXT     :
 
            RRIEND OF TIMOTHY LEE TEBBE,  :      File No. 837157
 
            MINOR SON OF DENNIS L. TEBBE, :
 
            DECEASED; DONNA R. TEBBE AS   :
 
            NATURAL MOTHER OF KIM TEBBE,  :
 
            MINOR SON OF DENNIS L. TEBBE, :
 
            DECEASED,                     :         N U N C
 
                                          :
 
                 Claimant,                :          P R O
 
                                          :
 
            vs.                           :         T U N C
 
                                          :
 
            PROFESSIONAL BUILDING         :        O R D E R
 
            MAINTENANCE,                  :
 
                                          :
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            INSURANCE COMPANY OF NORTH    :
 
            AMERICA,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                 Pursuant to the undersigned's decision filed April 28, 
 
            1992, a question came as to a couple factual matters that 
 
            need clarification even though they did not basically enter 
 
            into or change the final decision or order.  Additionally, 
 
            further clarification was desired as to part of the order.
 
            
 
                 In the decision, the undersigned stated that the action 
 
            for equitable apportionment was brought by the claimant, 
 
            Donna R. Tebbe.  This is, in fact, in error as said 
 
            application was brought by the defendant insurance carrier.
 
            
 
                 Additionally, the decision reflected that the sum of 
 
            $4,680.46 for the period in dispute beginning December 1, 
 
            1989 up to and not including October 5, 1991, was held in 
 
            escrow.  In fact, that money had already been paid by the 
 
            insurance carrier to Donna R. Tebbe.  The decision granted 
 
            said sum to Donna Tebbe and said decision gave the insurance 
 
            carrier credit for payment of the same.
 
            
 
                 The parties agreed that the weekly payments due 
 
            beginning October 5, 1991 would be paid one-third to the 
 
            guardian and conservator, Sandy Snitselaar, on behalf of 
 
            Timothy Tebbe and the other two-thirds to Donna Tebbe.
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That the first two paragraphs of the Order of the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            decision filed April 28, 1992, are stricken and in lieu 
 
            thereof the following should be inserted:
 
            
 
                 That defendants shall pay to Donna R. Tebbe, as 
 
            surviving spouse of Dennis L. Tebbe, the sum of four 
 
            thousand six hundred eighty and 96/100 dollars ($4,680.96).  
 
            This sum represents the period in dispute; namely, December 
 
            1, 1989 up to and not including October 5, 1991 (one-third 
 
            of 96 weeks).  These funds have already been paid to Donna 
 
            R. Tebbe, as surviving spouse of Dennis L. Tebbe.
 
            
 
                 That defendants shall pay the one hundred forty-six and 
 
            30/100 dollars ($146.30) weekly benefits that will continue 
 
            to be due and owing for the period beginning October 5, 
 
            1991, by paying one-third or forty-eight and 76/100 dollars 
 
            ($48.76) to Sandra Snitselaar, guardian and conservator of 
 
            Timothy Lee Tebbe, as long as she is guardian and 
 
            conservator and as long as the current dependent status 
 
            under the provisions of Iowa Code section 85.31 is in 
 
            existence.
 
            
 
                 IT IS FURTHER ORDERED:
 
            
 
                 That in all other respects, the arbitration decision 
 
            entered into on April 28, 1992, is hereby ratified and 
 
            confirmed.
 
            
 
                 Signed and filed this ____ day of May, 1992.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Ms Christine L Crilley
 
            Attorney at Law
 
            500 Higley Bldg
 
            P O Box 75062
 
            Cedar Rapids IA 52407
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            Mr John M Bickel
 
            Attorney at Law
 
            P O Box 2107
 
            Cedar Rapids IA 52406
 
            
 
            Ms Allison M Heffern
 
            Ms. Lynn Wickham Hartman
 
            Attorneys at Law
 
            1715 First Ave  SE
 
            P O Box 607
 
            Cedar Rapids IA 52406
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DONNA R. TEBBE, WIDOW OF      :
 
            DENNIS L. TEBBE, DECEASED;    :
 
            SANDRA SNITSELAAR AS NEXT     :
 
            RRIEND OF TIMOTHY LEE TEBBE,  :      File No. 837157
 
            MINOR SON OF DENNIS L. TEBBE, :
 
            DECEASED; DONNA R. TEBBE AS   :
 
            NATURAL MOTHER OF KIM TEBBE,  :      D E C I S I O N
 
            MINOR SON OF DENNIS L. TEBBE, :
 
            DECEASED,                     :           O N
 
                                          :
 
                 Claimant,                :     E Q U I T A B L E
 
                                          :
 
            vs.                           :  A P P O R T I O N M E N T
 
                                          :
 
            PROFESSIONAL BUILDING         :
 
            MAINTENANCE,                  :
 
                                          :
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            INSURANCE COMPANY OF NORTH    :
 
            AMERICA,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on April 24, 1992, in Des 
 
            Moines, Iowa.  This is a proceeding in which the claimant 
 
            seeks equitable apportionment of the weekly compensation 
 
            payments received as a result of the death of Dennis L. 
 
            Tebbe on October 30, 1986.  Since a majority of the facts 
 
            are undisputed, and by the agreement of the parties and the 
 
            attorneys, this hearing proceeded in a manner different than 
 
            normal in that the attorneys initially gave their 
 
            understanding of the facts and what the testimony of the 
 
            parties would be and then the parties were given an 
 
            opportunity to state any additional facts for the record.  
 
            Although the parties were allowed cross-examination, there 
 
            was very little due to the nature and understanding of the 
 
            parties in this case.  Testimony was given by the surviving 
 
            spouse of Dennis L. Tebbe, Donna Tebbe, and Sandra 
 
            Snitselaar, the currently appointed guardian conservator of 
 
            Timothy Lee Tebbe, minor son of Dennis L. Tebbe, deceased.  
 
            The attorney for the claimant, Christine L. Crilley, made a 
 
            statement.  Lynn Wickham Hartman, attorney for guardian and 
 
            conservator, also gave a statement.   Defendant insurance 
 
            carrier and its attorney, John Bickel, also had an 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            opportunity to make a statement.  The exhibits submitted 
 
            were joint exhibits 1, 2 and 3, and claimant's exhibit A.
 
            
 
                                      issue
 
            
 
                 The issue for resolution is who is entitled to the back 
 
            workers' compensation payments for the period beginning 
 
            December 1, 1989 up to and not including October 5, 1991, as 
 
            to one-third of the weekly benefit of $146.30, which for the 
 
            96 weeks amounts to $4,680.96.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 The defendant insurance carrier is taking a neutral 
 
            position and did not present any testimony other than there 
 
            were opportunities for statements to be made.  The insurance 
 
            company's position is that they are not going to take sides 
 
            as to who is entitled to the proceeds.  Said defendants 
 
            acknowledge that benefits are due and that some are now 
 
            being held in escrow until the resolution of this matter so 
 
            that the defendants will not pay the proceeds to the wrong 
 
            person or to one to whom the entitlement may not be 
 
            warranted.
 
            
 
                 When the undersigned refers to the claimant's testimony 
 
            or that the claimant states or the position of the claimant 
 
            is as follows and the same as to reference to the 
 
            defendants, this may be the result of either the direct 
 
            statement or testimony of the claimant or as understood and 
 
            agreed to by the parties, or the respective parties' legal 
 
            counsel's statement of what the evidence would show if the 
 
            proceeding went on a more formal question and answer 
 
            examination throughout the proceedings.  In other words, if 
 
            the undersigned indicates that claimant or defendants said 
 
            certain things, this may have been the respective party's 
 
            attorney actually speaking for the claimant or guardian and 
 
            conservator and unless absolutely necessary in this 
 
            decision, the undersigned deputy will not distinguish 
 
            between a statement of the party's attorney or the parties 
 
            themselves.
 
            
 
                 Timothy Tebbe, the stepson of the claimant, Donna R. 
 
            Tebbe, and the minor son of the deceased, Dennis L. Tebbe, 
 
            who was the husband of Donna R. Tebbe, was born on August 
 
            10, 1977, and is 14 years old.  Timothy Tebbe left the 
 
            residence of his stepmother, Donna R. Tebbe, on October 15, 
 
            1989, and went to Sandra Snitselaar, his aunt's, residence.  
 
            Sandra Snitselaar is currently the guardian and conservator 
 
            of Timothy Tebbe.  She was appointed guardian and 
 
            conservator on or around December 1, 1989, after having 
 
            filed a petition to be the guardian conservator on November 
 
            30, 1989.  Prior to Sandra Snitselaar being appointed, the 
 
            stepmother of Timothy Tebbe had been appointed the guardian 
 
            conservator having filed her petition on or around November 
 
            1986.  Donna Tebbe served in that position to December 1, 
 
            1989.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 At the time that Timothy Tebbe left his stepmother's 
 
            residence, the stepmother did not foster the move or desire 
 
            that Timothy leave and, in fact, the evidence seems to 
 
            indicate she loved her stepchild and wanted him to stay with 
 
            her and appeared upset that he was leaving.  It appears 
 
            that, even though Timothy had been indicating a desire to 
 
            leave his stepmother, this may have been precipitated, 
 
            fostered or encouraged by the natural mother of Timothy 
 
            Tebbe, said mother also being the ex-wife of the deceased, 
 
            Dennis Tebbe.  It appears that the final separation from the 
 
            residence of the stepmother occurred shortly after the 
 
            stepmother and her other child who is also the child of 
 
            deceased Dennis Tebbe, went on a vacation and left Timothy 
 
            Tebbe with his mother, because of school.  The evidence 
 
            indicates there was some problems which also involved 
 
            calling the police when the stepmother desired that Timothy 
 
            come back to the residence where he had been living after 
 
            Donna Tebbe returned from her vacation.
 
            
 
                 It also appears from the evidence that there has not 
 
            been an acrimonious relationship between the aunt and 
 
            current guardian conservator, Sandra Snitselaar, and Donna 
 
            Tebbe, other than the dispute as to the back pay, but that 
 
            there appears to have not been a good relationship between 
 
            the deceased's ex-wife and his wife at the time of his death 
 
            and that the natural mother of Timothy Tebbe, Catherine, had 
 
            contested Donna Tebbe's petition to be the guardian and 
 
            conservator of Timothy Tebbe in 1986.  It is obvious that 
 
            Catherine failed in that contested proceeding.  It appears 
 
            from the evidence that in October to December 1989, 
 
            Catherine Tebbe had a part in trying to get Sandy Snitselaar 
 
            to be the guardian conservator of Timothy Tebbe in lieu of 
 
            Donna Tebbe and at that time Timothy had left the home of 
 
            the stepmother.
 
            
 
                 It appears that Timothy Tebbe has had and is still 
 
            having emotional problems which has affected his school work 
 
            and this appears to have resulted from his father's death.
 
            
 
                 The parties presented considerable testimony as to 
 
            their overall financial picture.  It is obvious that Donna 
 
            Tebbe is living sparsely and basically on her income day to 
 
            day with certain items that in the future if they occur, 
 
            could substantially affect her ability to care for herself 
 
            and her child she had with the deceased.  It is obvious that 
 
            Sandra Snitselaar, who has now gone through a divorce, is 
 
            also having financial difficulties paying her bills and 
 
            having enough left to live on in the future.  There is no 
 
            dispute that she has no legal obligation to raise Timothy 
 
            Tebbe.  It is undisputed that she voluntarily agreed to be 
 
            the guardian and conservator of Timothy Tebbe.  It appears 
 
            possibly that it was Timothy's natural mother, Catherine, 
 
            that petitioned the court for appointment of Sandy 
 
            Snitselaar to be guardian and conservator.  It is apparent 
 
            since she was appointed that she accepted that position.  It 
 
            is immaterial whether she realized what that entailed.  The 
 
            fact is she apparently desired to do this.  It is also 
 
            immaterial what influence Catherine Tebbe may have had on 
 
            her but the undersigned could infer that being an ex-wife of 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Dennis Tebbe that Catherine wanted Timothy not to be with 
 
            Donna even though the evidence does not show for what 
 
            reasons.  Timothy Tebbe was 12 years old at the time in 
 
            October and December 1989, deciding where he wanted to live.  
 
            Under the law, even though it is not improper to ask him, a 
 
            12 year old does not usually have the say as to where he 
 
            wants to live and with that request carrying much weight 
 
            under the factual situation we have here.  The undersigned 
 
            believes that Catherine Tebbe had influence over Timothy.  
 
            It is interesting to note that the evidence shows that 
 
            Catherine, at the time of the divorce with Dennis Tebbe, did 
 
            not get custody of Timothy, which is normally unusual under 
 
            the custody decisions that existed in 1989.
 
            
 
                 The current guardian and conservator indicated she did 
 
            not bring the action for apportionment or possibly take 
 
            other actions earlier because she did not have the money to 
 
            pay for an attorney and also that she did not understand or 
 
            know or wasn't aware of the law in this area.  Of course, 
 
            ignorance of the law is no excuse.  This action is brought 
 
            by Donna Tebbe to try to resolve the dispute.  It doesn't 
 
            appear she really has the financial means to bring 
 
            litigation either.  In fact, it would appear between the two 
 
            that Donna Tebbe is in worse financial shape than is Sandra.  
 
            The testimony shows that at the time of Dennis Tebbe's death 
 
            he and his wife, their son and Dennis Tebbe's son by a 
 
            previous marriage lived in an apartment and within a year 
 
            after the death Donna bought a three bedroom house so as to 
 
            enable the family to live in less crowded conditions.  There 
 
            is also evidence that there was a desire that Timothy Tebbe 
 
            have his own bedroom and the house she bought enabled that 
 
            to occur.  It also appears that Timothy wanted to stay in 
 
            the school district and that due to his father's death, 
 
            Timothy needed some counseling and those facilities were 
 
            closer and in the vicinity of where the house was purchased.
 
            
 
                 The evidence shows that Donna Tebbe was attempting to 
 
            be more than fair in allowing one-third of the weekly 
 
            benefits to be given to Timothy Tebbe or the guardian and 
 
            conservator on his behalf and that she retained the other 
 
            two-thirds for herself and the other son.  It appears that 
 
            she made more effort than would have been required to put 
 
            people on notice of the fact that Timothy Tebbe had left her 
 
            residence.  It appears that social security and the 
 
            insurance carrier knew this.
 
            
 
                 Iowa Code section 85.43 provides that full compensation 
 
            shall be paid to the surviving spouse as provided in Iowa 
 
            Code section 85.31, even where the deceased leaves dependent 
 
            children but that the industrial commissioner may make an 
 
            order of record for an equitable apportionment for the 
 
            compensation payments.   Under Iowa Code section 85.31 it 
 
            indicates that if there is an equitable apportionment done, 
 
            then it would be reasonable to do it in the manner in which 
 
            the parties have agreed as to the future.  In other words, 
 
            one-third to the guardian and conservator of Timothy Tebbe 
 
            as long as the ward is entitled to benefits under the law 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            and then the two-thirds to the surviving spouse on her 
 
            behalf and the behalf of the other dependent child.  Donna 
 
            Tebbe has been very willing to do this one-third, two-thirds 
 
            split notwithstanding the provisions of Iowa Code section 
 
            85.43.
 
            
 
                 The evidence shows that Donna Tebbe gave four payments 
 
            to the guardian and conservator Sandy Snitselaar on behalf 
 
            of Timothy Tebbe after Timothy had left Donna Tebbe's 
 
            residence and these payments included the social security 
 
            that Donna was getting and one-third of the workers' 
 
            compensation check minus Timothy's attorney fees.  The 
 
            undersigned sees no need to further set out in detail 
 
            anymore of the testimony.  The undersigned finds that the 
 
            surviving spouse, Donna Tebbe, has done more than required 
 
            under the law and as provided under 85.43.  She went to the 
 
            time and expense to bring this action even though she could 
 
            have waited for someone else to bring it.  It is obvious she 
 
            brought this action because the insurance carrier was 
 
            withholding payments and these funds were necessary for her 
 
            to live.  Likewise, this action could have just as well been 
 
            brought by the guardian and conservator.
 
            
 
                 As indicated earlier, under 85.43, the surviving spouse 
 
            is entitled to all of the benefits unless there is an order 
 
            to the contrary.  Donna Tebbe purchased a house which was 
 
            suitable for the raising of the deceased's son from a 
 
            previous marriage, and their son.  Those house payments 
 
            continued to go on even with Timothy leaving.  Timothy 
 
            desired, even though he may have been influenced, to leave 
 
            his stepmother's residence and to go to his aunt's.  
 
            Obviously, the plan appeared to be that he was to go to his 
 
            mother's, but there is not a good relationship in that 
 
            regard.  Sandra Snitselaar is to be admired for desiring to 
 
            take on another child with her having gone through a divorce 
 
            and not having the greatest personal means, even though the 
 
            undersigned believes she is more able financially than 
 
            Donna.  The evidence also shows that Donna was not shirking 
 
            her duties and would have desired to continue raising 
 
            Timothy.  The whims of Timothy, who is emotionally upset due 
 
            to the death of his father, is not to be the controlling 
 
            factor in this matter.  The undersigned believes that the 
 
            intent of the statute is that the surviving spouse comes 
 
            first.  That was the obvious intent of the legislature when 
 
            it passed Iowa Code section 85.43.
 
            
 
                 The weekly benefits are rather small and we are not 
 
            talking about much money.  With the financial situation of 
 
            the parties, $50 a week is an important part in order to 
 
            make ends meet.  Sandra Snitselaar has no legal obligation 
 
            to care for Timothy Tebbe and she could give up her guardian 
 
            and conservatorship if she feels she cannot financially 
 
            handle the addition of her nephew into her household.  That 
 
            is a voluntary decision she made.
 
            
 
                 The undersigned finds the $4,680.96 that is in dispute 
 
            and being held back by defendant insurance carrier, which 
 
            represents one-third of the $146.30 weekly benefits for the 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            96 weeks in question, should be paid to Donna R. Tebbe, the 
 
            surviving spouse of Dennis L. Tebbe.  The undersigned 
 
            further finds that regarding the payment of weekly payments, 
 
            after the period in dispute, there shall be paid one-third 
 
            to the guardian and conservator of Timothy Tebbe and the 
 
            other two-thirds to Donna Tebbe, surviving spouse.  The 
 
            parties should follow the law as to what is to be done upon 
 
            the happening of certain future events concerning the 
 
            payment and distribution of weekly benefits.  Defendant 
 
            insurance carrier shall pay the $97.52 which is two-thirds 
 
            of $146.30, to Donna R. Tebbe, as surviving spouse of Dennis 
 
            L. Tebbe and $48.76 to Sandra Snitselaar, as the guardian 
 
            and conservator of Timothy Tebbe, minor.  Sandra Snitselaar 
 
            shall immediately notify defendant insurance company in 
 
            writing as to any change of her capacity as guardian and 
 
            conservator and also as to any change of her or the ward's 
 
            residency, or whether Timothy Tebbe is enrolled after he 
 
            reaches the age 18, as a full-time student in an accredited 
 
            institution.  Donna Tebbe shall notify defendant insurance 
 
            company immediately upon her remarriage.
 
            
 
                 At such time that Timothy Tebbe is no longer considered 
 
            a dependent under the provisions of Iowa Code section 85.31, 
 
            said $48.76 shall then be paid to Donna R. Tebbe under the 
 
            provisions of 85.43 and 85.31, whichever is applicable, 
 
            under the occurrence of the conditions triggering those 
 
            provisions.  The undersigned is not finding that the two-
 
            thirds ($97.52) is to be apportioned between Donna Tebbe and 
 
            her minor son.  The undersigned finds that that amount shall 
 
            be paid under the provisions of Iowa Code section 85.43 
 
            unless those other provisions under said statute and under 
 
            85.31 are triggered which would then cause distribution of 
 
            these benefits to be paid otherwise if payments are still 
 
            due.  Likewise, if Timothy Tebbe returns to live with his 
 
            stepmother, then those one-third payments referred to herein 
 
            that were going to the guardian and conservator shall then 
 
            be paid directly to Donna Tebbe under the provisions of 
 
            85.43 unless events occur which would trigger a different 
 
            distribution under the provisions of Iowa Code sections  
 
            85.43 and 85.31.
 
            
 
                                conclusions of law
 
            
 
                 Iowa Code section 85.43 provides, in pertinent part:
 
            
 
                    If the deceased employee leaves a surviving 
 
                 spouse qualified under the provisions of section 
 
                 85.42, the full compensation shall be paid to the 
 
                 surviving spouse, as provided in section 85.31; 
 
                 provided that where a deceased employee leave a 
 
                 surviving spouse and a dependent child or children 
 
                 the industrial commissioner may make an order of 
 
                 record for an equitable apportionment of the 
 
                 compensation payments.
 
            
 
                    If the spouse dies, the benefits shall be paid 
 
                 to the person or persons wholly dependent on 
 
                 deceased, if any, share and share alike.  If there 
 
                 are none wholly dependent, then such benefits 
 
     
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 shall be paid to partial dependents, if any, in 
 
                 proportion to their dependency for the period 
 
                 provided in section 85.31.
 
            
 
                    If the deceased leaves dependent child or 
 
                 children who was or were such at the time of the 
 
                 injury, and the surviving spouse remarries, then 
 
                 and in such case, the payments shall be paid to 
 
                 the proper compensation trustee for the use and 
 
                 benefit of such dependent child or children for 
 
                 the period provided in section 85.31.
 
            
 
                 Iowa Code section 85.31 provides, in pertinent part:
 
            
 
                    1.  When death results from the injury, the 
 
                 employer shall pay the dependents who were wholly 
 
                 dependent on the earnings of the employee for 
 
                 support at the time of the injury, during their 
 
                 lifetime, compensation upon the basis of eighty 
 
                 percent per week of the employee's average weekly 
 
                 spendable earnings, commencing from the date of 
 
                 death as follows:
 
            
 
                    a.  To the surviving spouse for life or until 
 
                 remarriage, provided that upon remarriage two 
 
                 years' benefits shall be paid to the surviving 
 
                 spouse in a lump sum, if there are no children 
 
                 entitled to benefits.
 
            
 
                    b.  To any child of the deceased until the 
 
                 child shall reach the age of eighteen, provided 
 
                 that a child beyond eighteen years of age shall 
 
                 receive benefits to the age of twenty-five if 
 
                 actually dependent, and the fact that a child is 
 
                 under twenty-five years of age and is enrolled as 
 
                 a full-time student in any accredited educational 
 
                 institution shall be a prima facie showing of 
 
                 actual dependency.
 
            
 
                 It is further concluded that:
 
            
 
                 Donna R. Tebbe is entitled to the amount in dispute, 
 
            mainly $4,680.96, which represents the one-third of the 
 
            disputed back pay for the 96 weeks beginning December 1, 
 
            1989 up to and not including October 5, 1991.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay to Donna R. Tebbe, as 
 
            surviving spouse of Dennis L. Tebbe, the sum of four 
 
            thousand six hundred eighty and 96/100 dollars ($4,680.96) 
 
            which they are holding until resolution of this matter for 
 
            the period of December 1, 1989 up to and not including 
 
            October 5, 1991 (one-third of ninety-six weeks).
 
            
 
                 That defendants shall pay the one hundred forty-six and 
 
            30/100 dollars ($146.30) weekly benefits that are due for 
 
            those periods not in dispute by paying one-third or forty-
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            eight and 76/100 dollars ($48.76) to Sandra Snitselaar, 
 
            guardian and conservator of Timothy Lee Tebbe, as long as 
 
            she is guardian and conservator and as long as the current 
 
            dependent status under the provisions of Iowa Code section 
 
            85.31 is in existence.
 
            
 
                 That the guardian conservator shall immediately notify 
 
            defendant insurance company of any change of ward's current 
 
            status which may trigger any change of payments or 
 
            distribution under the provisions of Iowa Code sections 
 
            85.43 or 85.31.
 
            
 
                 That defendant employer shall pay the remaining two-
 
            thirds or ninety-seven and 52/100 dollars ($97.52) to Donna 
 
            R. Tebbe under the provisions of Iowa Code sections 85.43 
 
            and 85.31.
 
            
 
                 That Donna R. Tebbe shall also notify defendant 
 
            employer upon her remarriage or of an occurrence of an event 
 
            that may trigger a change in the distribution or affect the 
 
            rights to payments as provided under Iowa Code sections 
 
            85.43 and 85.31.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to 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.
 
            
 
                 Signed and filed this ____ day of April, 1992.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Ms Christine L Crilley
 
            Attorney at Law
 
            500 Higley Bldg
 
            P O Box 75062
 
            Cedar Rapids IA 52407
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            Mr John M Bickel
 
            Attorney at Law
 
            P O Box 2107
 
            Cedar Rapids IA 52406
 
            
 
            Ms Allison M Heffern
 
            Ms. Lynn Wickham Hartman
 
            Attorneys at Law
 
            1715 First Ave  SE
 
            P O Box 607
 
            Cedar Rapids IA 52406
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                          1203
 
                                          Filed April 28, 1992
 
                                          Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DONNA R. TEBBE, WIDOW OF      :
 
            DENNIS L. TEBBE, DECEASED;    :
 
            SANDRA SNITSELAAR AS NEXT     :
 
            RRIEND OF TIMOTHY LEE TEBBE,  :      File No. 837157
 
            MINOR SON OF DENNIS L. TEBBE, :
 
            DECEASED; DONNA R. TEBBE AS   :
 
            NATURAL MOTHER OF KIM TEBBE,  :      D E C I S I O N
 
            MINOR SON OF DENNIS L. TEBBE, :
 
            DECEASED,                     :           O N
 
                                          :
 
                 Claimant,                :     E Q U I T A B L E
 
                                          :
 
            vs.                           :  A P P O R T I O N M E N T
 
                                          :
 
            PROFESSIONAL BUILDING         :
 
            MAINTENANCE,                  :
 
                                          :
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            INSURANCE COMPANY OF NORTH    :
 
            AMERICA,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1203
 
            Dispute involved who should receive $4,680.96, which was 
 
            one-third of the $146.30 weekly benefits for the period of 
 
            December 1, 1989 up to and not including October 5, 1991 (96 
 
            weeks).  The guardian and conservator of Timothy Tebbe, the 
 
            minor son of decedent, who left the residence of stepmother 
 
            on or around October 1989, sought a right to the $4,680.96.  
 
            His father died in a work accident on October 30, 1986.  
 
            Claimant, surviving spouse, was the stepmother of Timothy 
 
            and had one other son with the deceased.  She bought a house 
 
            after her husband's death to satisfy the family needs and 
 
            provide a separate room for Timothy to keep him in the same 
 
            school district as he desired, etc.  Stepmother desired to 
 
            continue to provide a home for the 12-year old stepson who 
 
            was emotionally affected by the death of his father.  It 
 
            appeared the ex-wife and natural mother of Timothy may have 
 
            had some influence on Timothy to move.  She had not gotten 
 
            custody of the child when she divorced the deceased.  She 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            recommended Timothy's aunt be the guardian and conservator 
 
            in 1989 and the stepmother let her.  Prior to the December 
 
            1, 1989 appointment, the stepmother was the guardian and 
 
            conservator of Timothy.  That guardianship and 
 
            conservatorship was unsuccessfully and hotly contested by 
 
            the natural mother.
 
            Deputy held the surviving spouse is to receive the 
 
            $4,680.96.  See Iowa Code sections 85.43 anc 85.31.
 
            The parties agreed prior to hearing that benefits therein 
 
            are to go one-third to guardian and conservator on behalf of 
 
            Timothy and two-thirds to surviving spouse and her child.  
 
            Deputy ordered two-thirds to be paid to surviving spouse 
 
            under 85.43.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JOYCE MILLER,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 801804
 
            LAURIDSEN FOODS, INC.,        :               837426
 
                                          :
 
                 Employer,                :     A R B I T R A T I O N
 
                                          :
 
            and                           :        D E C I S I O N
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES    :
 
            and HARTFORD INSURANCE        :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carriers,      :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This case came on for hearing on March 13, 1991, in 
 
            Mason City, Iowa.  This is a proceeding in arbitration 
 
            wherein claimant seeks compensation for permanent partial 
 
            disability benefits as a result of alleged injuries 
 
            occurring on August 15, 1985 and September 26, 1986.  The 
 
            record in the proceedings consists of the testimony of the 
 
            claimant, Thomas F. DeBartolo, M.D., and Don Gifford; 
 
            claimant's exhibits A through J; and defendants' exhibits 1 
 
            through 7.
 
            
 
                 The claimant had filed a motion to impose witness 
 
            exclusion sanctions and defendants resisted same and filed 
 
            their own motion to impose witness exclusion sanctions.  
 
            Both motions were sustained on the record at the beginning 
 
            of the hearing.
 
            
 
                 The issues for both alleged injuries are:
 
            
 
                 1.  Whether claimant's injuries arose out of and in the 
 
            course of her employment;
 
            
 
                 2.  Whether claimant's alleged disabilities are 
 
            causally connected to her alleged injuries;
 
            
 
                 3.  The nature and extent of claimant's disabilities 
 
            and entitlement to disability benefits;
 
            
 
                 4.  Claimant's entitlement to 86.13 penalty benefits;
 
            
 
                 5.  Who gets credit for benefits paid.  The parties 
 
            stipulated that if an injury is found to have occurred on or 
 
            after January 4, 1988, then the Hartford Insurance Company 
 
            is responsible for any liability and would get the credit.  
 
            If before said date, then Employer's Mutual Insurance 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Company;
 
            
 
                 6.  The rate, except that if an injury is found after 
 
            February 8, 1987, there would be five exemptions rather than 
 
            four; and,
 
            
 
                 7.  The payment of costs.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant testified at the hearing and also through her 
 
            deposition taken June 19, 1989.  Claimant is a 36-year-old 
 
            high school graduate.  She related her work history prior to 
 
            beginning work for defendant employer in 1981.  Claimant's 
 
            prior history involved commercial sewing, assembling radios, 
 
            and night foreman, as a gas pumper and window washer at a 
 
            gas station.  Claimant's work activity with defendant 
 
            employer ceased on or about June 15, 1988.  Claimant 
 
            described her positions with defendant employer, namely, as 
 
            a meat trimmer trimming fat off meat, a pack-off (packing 
 
            meat into boxes to ship out) and demolder which is part of 
 
            this pack-off job, and in the sanitation department using 
 
            high pressure hoses to wash and sanitize equipment.  
 
            Claimant further described in detail what she did in the 
 
            particular job (Claimant's Exhibit 5).
 
            
 
                 After leaving defendant employer, claimant worked at 
 
            Hardee's as her first full-time job beginning in September 
 
            1988.  She worked at a couple part-time jobs during part of 
 
            this time, also.  Claimant related her medical and accident 
 
            history prior to beginning work for defendant employer.  She 
 
            indicated there was nothing of significance except she broke 
 
            her index finger on her right hand between the knuckle and 
 
            wrist and incurred a lacerated head in a March 1984 auto 
 
            accident (Def. Ex. 5, pp. 24 and 25).
 
            
 
                 Claimant indicated in her 1989 deposition that the only 
 
            injury she incurred at defendant employer's was bilateral 
 
            tendonitis in her forearms and shoulder.   Claimant also 
 
            acknowledged she had depression in July or August 1985 which 
 
            she seems to initially relate to her having given birth to 
 
            her child (Defendants' Exhibit 5), but then she indicated 
 
            that wasn't the reason (Defendants' Exhibit 5, pp. 28 and 
 
            29).  Claimant indicated her doctor thought it was her 
 
            thyroid but she wasn't sure what was causing her depression.  
 
            This existed about nine months.  Claimant said she did not 
 
            go through any counselling or psychological treatment except 
 
            she was taking antidepressants.
 
            
 
                 Claimant said she had tendonitis off and on in 1986.  
 
            She said she took a leave of absence in 1986 due to 
 
            pregnancy.  She gave birth to another child in February 
 
            1987.  While off work, claimant had two carpal tunnel 
 
            surgeries and an ulnar and cubical release ( Def. Ex. 5, p. 
 
            34).  Claimant returned to work to the trimmer job in the 
 
            fall of 1987 after her surgeries, with restrictions by Dr. 
 
            Ronald S. Bergman (Def. Ex. 5, p. 35).  Claimant later was 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            told of another position and bid on it as it was a better 
 
            job and position than her current boning position, so she 
 
            thought.  This bid job was in the pack-off department.  
 
            Shortly thereafter, claimant wanted to go back to the boning 
 
            job as the pack-off position was a heavy job involving a lot 
 
            of lifting.  Later, claimant said Dr. Bergman's restrictions 
 
            were lifted and she was under the care of T.C. Mead, M.D 
 
            (Def. Ex. 5, p. 37).  She commented Dr. Mead's restrictions 
 
            were unclear to her (Def. Ex. 5, p. 37).  Claimant never did 
 
            go back to the boning position because she was not allowed 
 
            to go back as there was never an opening.  She said she 
 
            would have returned to boning if there had been an opening.
 
            
 
                 Claimant indicated she was later moved to the 
 
            sanitation department.  Claimant's testimony is confusing in 
 
            response to defendants' attorney in trying to determine 
 
            claimant's alleged cause of depression (Def. Ex. 5, pp. 
 
            39-43).  It appears placing claimant in a night shift job 
 
            was upsetting to her as she had a baby and wanted to spend 
 
            time with the family.  She later referred to her pain in her 
 
            hands, neck and shoulder problems and certain employees 
 
            calling her "baby," etc. (Def. Ex. 5, p. 44).  Claimant said 
 
            she saw a Dr. Bottjen in June 1988 and he sent her a letter 
 
            indicating that he did not think claimant's depression was 
 
            work related (Def. Ex. 5, p. 46).  She further said no 
 
            doctor, including Dr. Larson and Dr. Lassise, came right out 
 
            and said claimant's mental problems were work related (Def. 
 
            Ex. 5, pp. 46 and 47).
 
            
 
                 It appears claimant was irritated that a Mr. Gifford, 
 
            her supervisor, was asking her a lot about how she was 
 
            feeling or doing (Def. Ex. 5, p. 50).  This reaction seemed 
 
            unusual to the undersigned.  At the time of her deposition, 
 
            claimant could not relate who caused her August 1985 or 
 
            September 26, 1986 injury, nor could she relate her 
 
            condition or complaints at that time (Def. Ex. 5, p. 60).  
 
            
 
                 Claimant testified she had three surgeries in 1987 
 
            performed by Dr. Bergman, namely, a left hand carpal tunnel 
 
            in May, a right hand carpal tunnel in June and a right ulnar 
 
            cubital release in September 1987 on her right elbow (Def. 
 
            Ex. 5, p. 64 and 65).  Claimant indicated Dr. Bergman 
 
            released her to go to work in February 1988 (Def. Ex. 5, p. 
 
            66).
 
            
 
                 Claimant acknowledged she received workers' 
 
            compensation beginning when she was off work around November 
 
            1986 until Dr. Bergman returned her back to work except 
 
            during a period when claimant was pregnant.  The undersigned 
 
            is finding claimant's testimony in her deposition confusing 
 
            and the question as to time is not helping to sort out the 
 
            sequence of events.  Claimant said there was no time she was 
 
            off work for her injury and period of pregnancy up to her 
 
            return to work, that she wasn't paid either workers' 
 
            compensation benefits or defendant employer disability (Def. 
 
            Ex. 5, pp. 70-72).  Claimant also acknowledged that when the 
 
            impairment rating was made by Dr. Bergman, she received 
 
            permanent partial disability benefits based on that letter 
 
            (Def. Ex. 5, p. 72).
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 Claimant said she and her husband farm 60 to 80 acres 
 
            and have 40 to 45 head of cattle, 30 sheep, two horses and a 
 
            donkey.  She does chores such as taking water to the bull in 
 
            a separate pen.  They raise the sheep for the wool and not 
 
            for mutton.  She also drove a tractor.  Claimant said she 
 
            left defendant employer because of depression.  She 
 
            indicated she never felt comfortable going back as she felt 
 
            she would again be called names and the pain would be there.  
 
            She didn't think she could handle going back.
 
            
 
                 Claimant explained the nature of her current job at 
 
            Hardee's and the difficulty in her neck and shoulders that 
 
            reaching causes her.  She indicated that making biscuits 
 
            aggravates her hands.  This was claimant's first job since 
 
            leaving defendant employer.  It began on September 6, 1988.  
 
            She has had various jobs since that time, such as 
 
            bookkeeping, answering the telephone, setting up 
 
            appointments, all sedentary jobs.  As of the time of her 
 
            deposition testimony in June 1989, claimant was still having 
 
            depression and she did not know what was causing it (Def. 
 
            Ex. 5, p. 90).  Claimant claimed she was treated differently 
 
            by defendant employer because she thought she was being 
 
            watched.
 
            
 
                 Claimant said her examination with David J. Boarini, 
 
            M.D., took eleven minutes and her tests took one-half hour.  
 
            She said the doctor took no personal history nor did he ask 
 
            her where she hurt or about her pain.  She said Dr. 
 
            Boarini's examination contributed to her injury.
 
            
 
                 Claimant claims she cannot bowl, play softball or 
 
            volleyball anymore.
 
            
 
                 Claimant's husband, David Miller, testified by way of 
 
            his deposition on June 19, 1989 (Def. Ex. 6).  He could not 
 
            connect any of claimant's depression in 1985 to family 
 
            matters.  He indicated claimant cried a lot in 1985 and 
 
            1988.  He said claimant didn't see the family much due to 
 
            her job.
 
            
 
                 David J. Boarini, M.D., a neurologist, testified by way 
 
            of his deposition on May 3, 1990, that his first contact 
 
            with claimant was January 29, 1990.  He mentioned the 
 
            several medical records, tests and reports of claimant he 
 
            had from other medical personnel.  It appears he spent 
 
            eleven minutes with claimant.  One-half of this was from her 
 
            examination, the rest was speaking with claimant.  He said 
 
            her main complaint was headaches and soreness in her back 
 
            around her shoulder blades, neck, elbow and down into her 
 
            arms (Def. Ex. 3, p. 15).  He related the history claimant 
 
            gave him.  He said she was being treated for depression and 
 
            he indicated she seemed to be depressed.  He said the 
 
            results of claimant's neurological examination was normal 
 
            and her x-rays were essentially normal.  He indicated the 
 
            1988 MRI and the 1987 x-rays were of her neck and the 1987 
 
            EMG was done on the arms.  He thought the MRI showed a bit 
 
            of compression and narrowing at the C5-6 but it was not 
 
            significant.  He could not ascertain the nature of that 
 
            defect.  He said the 1987 EMG tests were normal.  The doctor 
 
            ruled out thoracic outlet syndrome and indicated that 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            cervical narrowing was a normal, degenerative arthritic 
 
            change (Def. Ex. 3, p. 13).  In summary, on direct 
 
            examination, the doctor opined no abnormality.  He found no 
 
            residuals from claimant's bilateral carpal tunnel surgery.  
 
            He found no causal connection of claimant's complaint to any 
 
            work with defendant employer.  He found no objective 
 
            abnormality of any kind to correspond to her complaints 
 
            (Def. Ex. 3, p. 17).  He referred to her February 20, 1990 
 
            report sent to Attorney Robert Landess (Def. Ex. 3, dep. Ex. 
 
            1).
 
            
 
                 The doctor said it is possible that depression alone 
 
            can cause or exacerbate muscle stiffness or muscle tension 
 
            (Def. Ex. 3, p. 21).  He said his impairment rating of 2 to 
 
            3 percent to each of the upper extremities was based solely 
 
            upon claimant's subjective complaints.  To arrive at this, 
 
            he did a range of motion test of claimant's neck, shoulder 
 
            and arm and used the AMA Guides (Def. Ex. 3, p. 31).  The 
 
            doctor did not give claimant any specific work restrictions 
 
            and suggested continued treatment for her depression (Def. 
 
            Ex. 3, Def. Ex. 2).
 
            
 
                 The doctor acknowledged that depending on claimant's 
 
            activities on the day of the examination, the degree of 
 
            existence of inflammation, tenderness, and range of motion 
 
            can vary from day to day (Def. Ex. 3, p. 37).  If he had 
 
            found any abnormality, he would have referred claimant to an 
 
            orthopedic surgeon (Def. Ex. 3, p. 38).
 
            
 
                 He remembered claimant being tearful during her 
 
            examination and of his telling her that her problems were 
 
            not work related.  He acknowledged there is no basis for an 
 
            impairment rating on the diagnosis of tendonitis (Def. Ex. 
 
            3, p. 44).  He acknowledged he did not make the same 
 
            findings as Dr. DeBartolo.
 
            
 
                 Todd F. Hines, Ph.D., a clinical psychologist, 
 
            testified by way of his deposition on April 17, 1990, that 
 
            he evaluated claimant on January 18, and 29, 1990, through a 
 
            referral from claimant's attorney, Mark Soldat.  He 
 
            indicated he had reviewed certain records of claimant.  He 
 
            referred to a letter from Dr. Bottjen regarding claimant's 
 
            depression (Def. Ex. 4) and a brief psychological evaluation 
 
            done when claimant was hospitalized at Mercy Hospital.  He 
 
            took a history and administered over the two days, January 
 
            18 and 29, 1990, the Minnesota Multiphasic Personalty 
 
            Inventory and the Rotter Incomplete Sentences Blank.  On the 
 
            29th, he also did five other tests (Def. Ex. 4, p. 10).  
 
            (Claimant also put into evidence the same deposition of Dr. 
 
            Hines, which is Claimant's Exhibit E.)  The only reference 
 
            hereafter will be to Defendants' Exhibit 4.  The parties 
 
            assured the undersigned when asked whether there was any 
 
            duplication by responding with a "no."  In fact, this, in 
 
            particular, is an example of duplication and it should 
 
            easily have been recognized, as Dr, Hines' deposition was 
 
            introduced into evidence by both sides.  In other instances 
 
            of duplication where both sides introduced the same report 
 
            or evidence, the undersigned will only refer to one party's 
 
            exhibit and not both.
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 Dr. Hines concluded that claimant was experiencing 
 
            serious and clinically significant psychological problems 
 
            and was struggling under the weight of an emotional 
 
            disorder.  In other words, anxiety and depression (Def. Ex. 
 
            4, p. 12).  To be more specific, he would call it borderline 
 
            personality disorder.  The doctor then testified:
 
            
 
                    It was my judgment that this is a psychological 
 
                 condition that has been with her in all 
 
                 probability for many years.  I would date the 
 
                 roots of it back to her childhood and that there 
 
                 had occurred in relatively recent times a 
 
                 precipitating factor that essentially exacerbated 
 
                 this existing personality disorder and 
 
                 precipitated the depression and the anxiety; and 
 
                 that in my opinion that precipitating factor was 
 
                 an awareness which she acquired in 1985 that one 
 
                 of her sisters, Darlene by name, had been sexually 
 
                 abused and molested by their father from the time 
 
                 Darlene was about seven years of age for many 
 
                 subsequent years.
 
            
 
                    The issue of significance for Mrs. Miller is 
 
                 that she also had been sexually abused by her 
 
                 father short of intercourse.  That occurred on at 
 
                 least four occasions to her memory at the time she 
 
                 was about 10 or 11 years of age.  Mrs. Miller saw 
 
                 herself as the protector of her sisters.  She said 
 
                 that very explicitly and blamed and blames herself 
 
                 very deeply and very intensely for the 
 
                 psychological abuse that her younger sister 
 
                 Darlene experienced.
 
            
 
            (Def. Ex. 4, pp. 12, 13)
 
            
 
                 The doctor indicated claimant's family was highly 
 
            dysfunctional and claimant experienced what he thought was a 
 
            classic pattern in an abusive family and was rejected by her 
 
            mother and removed from the house in the junior year of high 
 
            school for no apparent reason.  Claimant was called the 
 
            "black sheep" of the family by her mother.  Dr. Hines said 
 
            the family problems were extremely disruptive to the 
 
            claimant and in 1985 claimant became aware of the sexual 
 
            abuse of her sister and felt a great responsibility and 
 
            blame for it (Jt. Ex. 4, p. 14).  He opined that claimant's 
 
            psychological condition is not caused by her work-related 
 
            injury (Jt. Ex. 4, p. 15).  Dr. Hines said claimant's 
 
            psychological disorder has resulted in claimant having a 
 
            great deal of anger towards men and is not confined to her 
 
            father or husband but generalizes to her employers, 
 
            evaluating and treating physicians and into her life (Jt. 
 
            Ex. 4, p. 18).  Dr. Hines also said claimant's psychological 
 
            condition interacts with her medical condition and 
 
            claimant's pain and chronic pain would be expected to be 
 
            influenced by intensive anger, depression, anxiety, and 
 
            generally unstable psychological processes (Jt. Ex. 4, p. 
 
            20).
 
            
 
                 Dr. Hines indicated that when an individual has a 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            serious and significant psychological condition, that 
 
            impinges the clarity with which one can see a purely 
 
            physiological malfunction.  He said claimant told him she 
 
            has skin problems, her neck cracks and her right shoulder 
 
            catches.  She then told him, "when I get upset I have 
 
            shooting pains from the low back to my head." (Def. Ex. 4, 
 
            p. 22)  Dr. Hines did conclude that the MPI test he gave 
 
            claimant indicated that claimant's pain is also related to a 
 
            physical anomaly and that her claim of pain is not "all in 
 
            her head." He said there is also a medical condition causing 
 
            claimant's pain and she is not malingering and consciously 
 
            manipulating her experience of pain or disability (Def. Ex. 
 
            4, p. 25 and 26).
 
            
 
                 Dr. Hines indicated it is impossible to separate how 
 
            much pain is caused by physical versus psychological 
 
            problems.  Dr. Hines indicates claimant's pain is 
 
            unconsciously exaggerated because of her emotional condition 
 
            and that the pain is amplified.  He related that pain is 
 
            subjective (Def. Ex. 4, pp. 30 and 31).
 
            
 
                 Dr. Hines emphasized on more than one occasion that 
 
            when one is very angry, one's muscles tighten (Def. Ex. 4, 
 
            pp. 31, 32).  This can exacerbate pain.  He opined, without 
 
            question, that there is an interaction to claimant's 
 
            psychological and physiological components of this injury.  
 
            Quantity cannot be discerned in his opinion.
 
            
 
                 Dr. Hines said claimant has a hatred of people, male 
 
            and female, and this was reflected in her description of how 
 
            the medical personnel related to her.  He described examples 
 
            (Def. Ex. 4, p. 33).  He opined that it is imperative for 
 
            claimant to enter into long-term individual psychotherapy 
 
            which will be measured in years rather than months.  He 
 
            indicated this in a letter to claimant's attorney and also 
 
            related claimant has a history of violent behavior and did 
 
            report to him thoughts of her doing harm to individuals 
 
            associated with defendant employer.  The doctor thought 
 
            claimant had the capability of doing harm to individuals 
 
            associated with her employment and that this should not be 
 
            taken lightly.  (Def. Ex. 4, Dep. Ex. 2).
 
            
 
                 He said claimant is significantly impaired 
 
            psychologically but he could not give a percent.  He related 
 
            again that claimant has some physiological or medical 
 
            component but that her psychological condition is a 
 
            substantial contributing factor to her impairment (Def. Ex 
 
            4, p. 49).
 
            
 
                 Thomas F. DeBartolo, M.D., an orthopedic surgeon 
 
            specializing in upper extremity and hands, testified 
 
            personally.  He went through an exhaustive examination by 
 
            claimant's attorney.  He related the importance of a work 
 
            history.  He described the manner of his physical 
 
            examination and evaluation.  He said it was significant that 
 
            claimant's nerve problems related to the time of claimant's 
 
            pregnancy and that carpal tunnel worsens with a pregnancy.  
 
            He said any arm surgery takes a toll on the arm.  He was 
 
            questioned concerning claimant's May 18, 1987 left carpal 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            tunnel release, her right carpal tunnel release on July 2, 
 
            1987, and her right ulnar nerve cubital release on September 
 
            16, 1987.  He found it unusual for a doctor to perform two 
 
            separate surgeries as was done on claimant's right upper 
 
            extremity.  He said most doctors would do both at once as 
 
            surgeries weaken the extremity.
 
            
 
                 Dr. DeBartolo discussed the difficulty of diagnosing a 
 
            thoracic outlet syndrome.  The doctor was referred to his 
 
            report of August 8, 1989 (Cl. Ex. A, p. 72-75), at which 
 
            time he set out his impairment ratings for claimant, namely:
 
            
 
                 Therefore, using the combined values chart, the 
 
                 patient would have 32% impairment of the right 
 
                 upper extremity, 26% impairment of the left upper 
 
                 extremity.  I then feel that because the patient 
 
                 continued to try to do repetitive hand and wrist 
 
                 activity involving lifting with the significant 
 
                 impairment that she had, she then developed 
 
                 increased strain on her dominant right upper 
 
                 extremity with the development of the right 
 
                 shoulder pain and positive thoracic outlet 
 
                 symptoms which I will arbitrarily add an 
 
                 additional 15% of the right upper extremity again 
 
                 using combined values chart making that 42% of the 
 
                 right upper extremity.  It is my feeling that the 
 
                 patient's limitation of the cervical spine is 
 
                 again using the AMA Guidelines, 3% of the whole 
 
                 person.  Therefore, in summary, the impairment 
 
                 that I feel accurately reflects Mrs. Joyce 
 
                 Miller's function at this time is 3% of the whole 
 
                 person secondary to cervical spine, 42% of the 
 
                 right upper extremity and 25% of the left upper 
 
                 extremity.  I have deducted 5% of the impairment 
 
                 of the nondominant left side as is instructed by 
 
                 the AMA Guide.
 
            
 
            (Cl. Ex. A, p. 75)
 
            
 
                 The doctor causally connected claimant's problems to 
 
            her work but didn't specifically tie it to any date.  He has 
 
            not seen claimant since August 8, 1989.  He opined 
 
            claimant's symptoms are the result of claimant's carpal 
 
            tunnel and ulnar nerve releases.
 
            
 
                 He acknowledged that Dr. Hines, as a psychologist, is 
 
            in a better position to determine claimant's psychological 
 
            condition as it affects her symptoms and its relation on 
 
            claimant's subjective symptoms.  Dr. DeBartolo, in his 
 
            diagnosis, relied solely on claimant's meat trimming and 
 
            multiple jobs with defendant employer in arriving at his 
 
            causation conclusion.  The undersigned notes that Dr. 
 
            DeBartolo did not know of the beginning of any existing 
 
            mental problems claimant had that predate any possible 
 
            injury herein and her personality disorder.  It appears this 
 
            condition may have camouflaged some of the doctor's ability 
 
            to accurately determine a true cause of claimant's problems.  
 
            As will be seen later on, there were several doctors who had 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            no idea, but may have suspected, a mental problem with 
 
            claimant that would substantially affect a history and the 
 
            ability to make a determination of a person's impairment.  
 
            Claimant's Exhibit A, pages 2, 5 and 8 refer to doctors' 
 
            reports or accident reports which relate to claimant's 
 
            alleged April 15, 1985 and September 26, 1986 injuries which 
 
            were plead in claimant's petition.  Claimant leaves the 
 
            impression that these two dates are only two of several 
 
            dates of which claimant contends she has an injury but, in 
 
            fact, if any, it will ultimately be determined to be one 
 
            injury date based on a cumulative type injury.  Confusion 
 
            under the law and filing procedure as to injury dates 
 
            results often in the pleading of multiple dates to make sure 
 
            a correct single injury date is arrived at.  There is agency 
 
            precedence that a deputy can pick a date of injury different 
 
            than that plead, especially in a cumulative injury case.
 
            
 
                 It appears from the record that claimant's left and 
 
            right forearms began to bother her by August 20, 1985 (Cl. 
 
            Ex. A, p. 1) and that by September 26, 1986, her bilateral 
 
            upper extremity problem surfaced more fully, and on November 
 
            7, 1986, a prior initial diagnosis of tendonitis in both 
 
            forearms occurred (Cl. Ex. A, p. 6).  Page 6 indicates that 
 
            claimant was totally incapacitated beginning September 27, 
 
            1986 and then released to work on September 29, 1986.  This 
 
            ultimate diagnosis of tendonitis in both forearms came at an 
 
            apparent diagnosis of bilateral carpal tunnel (Cl. Ex. A, p. 
 
            8).
 
            
 
                 It appears there was a concern of whether claimant 
 
            pregnancy brought on claimant's carpal tunnel syndrome (Cl. 
 
            Ex. A, p. 11).  Claimant, in fact, gave birth to a child in 
 
            February 1987.  Stephen M. Bolton, M.D., on February 28, 
 
            1987, opined claimant's carpal tunnel was caused by her 
 
            repetitive hand motions at work and not the pregnancy (Cl. 
 
            Ex. A, p. 12).  Page 21 reflects that claimant had a left 
 
            carpal tunnel release on May 18, 1987.  Page 28 reflects 
 
            claimant had a right carpal tunnel release on July 2, 1987.  
 
            Page 25 reflects that claimant had a right cubital tunnel 
 
            release and right ulnar nerve tunnel release on September 
 
            26, 1987.  On February 9, 1988, Dr. Bergman, who performed 
 
            the previously referred to surgeries, wrote that he could 
 
            not find anything clinically wrong with claimant and 
 
            suggested that she see a neurologist.  He commented her 
 
            complaints are more likely causally connected to her 
 
            employment (Cl. Ex. A, p. 30).  The undersigned notes that 
 
            it is apparent Dr. Bergman did not know of claimant's mental 
 
            situation and history.
 
            
 
                 Claimant went to Alfredo D. Socarras, M.D., on February 
 
            19, 1988.  A neurological examination was essentially 
 
            normal.  He found no objective evidence of a radicular or 
 
            peripheral nerve involvement.  He felt her symptoms are 
 
            primarily on a muscle and tension basis.  He found no 
 
            functional impairment from the neurological standpoint.  
 
            Claimant told him she went through a depression in the 
 
            summer of 1985.  It is interesting that it appears 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            claimant's carpal tunnel problems seem to increase with her 
 
            pregnancy and decrease or disappear after the birth of her 
 
            children in 1985 and 1987 (Def. Ex. 2, p. 155).  It does not 
 
            appear that claimant related to the doctor the nature and 
 
            the cause of the depression in 1985 like she did to Dr. 
 
            Hines in 1990.  You can see the doctor has a feeling her 
 
            problems are also related to tension (Cl. Ex. A, pp. 32, 
 
            33).
 
            
 
                 Defendants' Exhibit 2, page 153, reflects that Dr. 
 
            Socarras, on March 10, 1988, could not explain the 
 
            claimant's symptoms on the basis of her MRI report.  Again, 
 
            the undersigned notes the doctor had no history of 
 
            claimant's underlying mental problems and history but did 
 
            notice claimant had tension.
 
            
 
                 On March 24, 1988, Dr. Bergman opined claimant had a 
 
            permanent partial impairment of 6 percent to her left thumb 
 
            and 5 percent permanent partial impairment to her right 
 
            upper extremity due to her elbow injury (Cl. Ex. A, p. 39).  
 
            On April 15, 1988, Dr. Mead indicates a questionable 
 
            etiology.  He also seems stymied but doesn't have related to 
 
            him claimant's mental disorder or history as described by 
 
            Dr. Hines.  He didn't think claimant's problems are related 
 
            to any carpal tunnel or ulnar nerve transfer in the past 
 
            (Cl. Ex. A, p. 44).
 
            
 
                 On April 25, 1988, R. B. Trimble, M.D., was obviously 
 
            stymied after examining claimant.  Again, he is obviously 
 
            not aware of the psychological turmoil going on in claimant 
 
            as described by Dr. Hines.  The more the medical doctors or 
 
            personnel are befuddled by the physical histories, the more 
 
            the conclusions of Dr. Hines are conclusive and convincing.
 
            
 
                 On June 28, 1988, Dr. Mead commented in his notes that 
 
            he thinks claimant's emotional makeup currently overshadows 
 
            a lot of her other problems (Cl. Ex. A, p. 65).  On July 6, 
 
            1988, he thought claimant's emotional symptoms were making 
 
            any thought of claimant returning to work a very difficult 
 
            decision for her (Cl. Ex. A, pp. 65, 66).
 
            
 
                 On February 19, 1991, pursuant to a leading and 
 
            suggestive type letter from claimant's attorney, Dr. Mead, 
 
            in part, wrote:
 
            
 
                 I think there was a degree of emotional 
 
                 magnification of her symptoms and I feel that most 
 
                 of her complaints were very subjective and in this 
 
                 way other emotional problems going on would [sic] 
 
                 tend to make these complaints of pain possibly 
 
                 even greater than would be normally in a calm 
 
                 relaxed state.  I feel that I was based primarily 
 
                 on the subjective history.  She was tender in 
 
                 portions of the body but I could not find any 
 
                 overt swelling or anything objective in that 
 
                 specific concrete nature that I could point to.
 
            
 
            (Cl. Ex. A, p. 86)
 
            
 
                 He clearly deferred the effect of claimant's emotional 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            problems on claimant's physical situation to a psychologist 
 
            or psychiatrist (Cl. Ex. A, p. 87).
 
            
 
                 The records indicate claimant left work at defendant 
 
            employer on June 15, 1988, and has not returned.  It appears 
 
            on June 14, 1988, claimant was doing well in her job and the 
 
            company was accommodating claimant (Cl. Ex. C, p.30).
 
            
 
                 The rehabilitation service records (Dr. Bottjen), (Def. 
 
            Ex. 2, pp 8-14), indicate claimant had major depression.  It 
 
            is of interest to the undersigned the notation at the bottom 
 
            of page 14 where claimant denies any stress at home.  This 
 
            seems to contradict other evidence and, in particular, what 
 
            claimant told Dr. Hines.
 
            
 
                 Defendants' Exhibit 2, page 17 indicates claimant was 
 
            in a car accident but it does not appear from any medical 
 
            evidence that there was any residual permanent injuries from 
 
            this March 1, 1984 injury.
 
            
 
                 Defendants' Exhibit 2, page 29, reflects claimant's 
 
            depression (August 16, 1985); page 39 (August 2, 1985); and 
 
            page 32 (May 31, 1985).  This May 31, 1985 notation in Dr. 
 
            Richard's notes denies any home life stresses just like 
 
            claimant denies any such stresses to Dr. Bottjen (Def. Ex. 
 
            2, pp. 8-14).
 
            
 
                 It appears to the undersigned that claimant is 
 
            suppressing the outside stresses and blaming everything on 
 
            her work.  It appears to the undersigned that the reverse 
 
            seems to be true, namely, claimant's nonoccupational 
 
            stresses and mental problems originally rooted on childhood 
 
            experiences are substantially affecting her work.
 
            
 
                 Defendants' Exhibit 2, page 39, reflects claimant's 
 
            depression in 1984 after the birth of a child.
 
            
 
                 Defendants' Exhibit 2, pages 44 through 47, the records 
 
            of R. Larsen, M.D., of St. Joseph's Mercy Hospital, on July 
 
            20, 1988, reflect his diagnosis was major depression - 
 
            family problems and relates a depression episode in 1984 in 
 
            conjunction with with hypothyroidism.  Claimant seemed to 
 
            have characterological difficulties that will need to be 
 
            dressed in long-term therapy and claimant has emotional and 
 
            personality problems so wide ranging that they are difficult 
 
            or impossible to sort out.  It appears that at this time 
 
            claimant revealed ruminations about work and guilt.
 
            
 
                 M. Peltan, Ph.D., reflects the same on June 31, 1988 
 
            (Def. Ex. 2, p. 51).
 
            
 
                 Dr. Bottjen, in the Mercy Hospital notes, reflects on 
 
            June 27, 1988, "Group therapy:  Discusses poor relationship 
 
            with mother-in-law - who appears to be in an enmeshed 
 
            relationship with Joyce's husband." (Def. Ex. 2, p. 55)  The 
 
            undersigned notes with interest that claimant has been 
 
            blaming her problems on work and not on the family problems.  
 
            It appears the problems discovered by Dr. Hines have been 
 
            affecting claimant for some time and that she has been 
 
            suppressing and denying them until they came clearly to the 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            surface in detail through Dr. Hines.
 
            
 
                 A functional capacity evaluation summary of June 22, 
 
            1988 recommended claimant could return to work in her 
 
            demolding job (Def. Ex. 2, p. 114).
 
            
 
                 On March 14, 1988, Dr. Bergman wrote that claimant 
 
            reached maximum medical healing from a surgical standpoint 
 
            with temporary restrictions set out for five weeks.  He 
 
            opined claimant had a 6 percent permanent partial impairment 
 
            of the left thumb and 5 percent permanent partial impairment 
 
            of the right upper extremity (Def. Ex. 2, pp. 124, 126, 127 
 
            and 129).  He could not clinically find anything wrong with 
 
            claimant but said her complaints in her arm, neck and 
 
            shoulder are most likely related to her employment.  The 
 
            undersigned notes the doctor did not have any history of 
 
            claimant's mental problems or history.  He did recommend a 
 
            neurologist.
 
            
 
                 Dr. Bottjen, on June 20, 1988, wrote that he thought 
 
            claimant was suffering from a major depressive episode that 
 
            was indigenous in nature.  He basically said it was not 
 
            caused by her work (Def. Ex. 2, p. 157).
 
            
 
                 There is considerable medical evidence and many doctors 
 
            involved in claimant's problems and treatment.  The 
 
            undersigned finds that claimant's mental problems are not 
 
            work related as to any proximate cause but are, in fact, 
 
            indigenous in nature and were caused by and/or materially 
 
            and substantially caused by, lighted up and exacerbated by 
 
            the sexual abuse claimant incurred and her guilt for the 
 
            sexual abuse her younger sister incurred by a member of the 
 
            family.  The undersigned is disturbed by the fact that the 
 
            history claimant gave to the doctors was basically devoid of 
 
            her past family problems and mental problems.  It is obvious 
 
            that several doctors saw a mental type component but could 
 
            not put their finger on it.  It was beyond their expertise.  
 
            Claimant consistently blamed her problems on her work but, 
 
            in fact, the undersigned finds claimant's work was affected 
 
            by claimant's underlying mental disorder and problems dating 
 
            from her childhood.  These problems began coming to the 
 
            surface before claimant incurred any injury.
 
            
 
                 There is considerable medical evidence in which the 
 
            medical personnel cannot find the cause of claimant's 
 
            symptoms based on objective findings.  Their opinions were 
 
            rendered on subjective complaints of claimant, but much of 
 
            the opinions are severely tainted by the inadequate history 
 
            given by claimant.  Claimant always referred to her work as 
 
            the cause of her problems.  The undersigned believes 
 
            claimant was not credible in this regard, particularly as 
 
            time went on.  The undersigned questions whether claimant 
 
            needed the surgeries she had, at least to the extent they 
 
            were incurred.  It appears whenever she became pregnant, at 
 
            least with her last two children, her carpal tunnel would 
 
            arise more substantially.  Although Dr. DeBartolo did not 
 
            want to second guess Dr. Bergman, he seemed to question the 
 
            surgeries based on the lack of subjective findings or tests.  
 
            The fact is claimant had the surgeries and the undersigned 
 
            finds the greater weight of medical evidence shows claimant 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            incurred simultaneous bilateral work-related carpal tunnel 
 
            syndromes requiring surgeries on the left on May 18, 1987 
 
            and on the right on July 2, 1987, and claimant incurred a 
 
            right cubital and ulnar tunnel release on September 16, 
 
            1987, as a result of a cumulative work injury on September 
 
            26, 1986.
 
            
 
                 Claimant's cumulative injury caused claimant to incur a 
 
            3 percent impairment to each of her upper extremities.  Dr. 
 
            Bergman indicated claimant had a 6 percent permanent partial 
 
            impairment of the left thumb and a 5 percent permanent 
 
            partial impairment of the right upper extremity contributed 
 
            by the elbow.  The greater weight of medical evidence 
 
            indicates the impairments were to claimant's upper 
 
            extremities.  While the undersigned feels claimant's 
 
            complaints are substantially effected by her mental 
 
            disorder, the fact that claimant had surgeries have affected 
 
            her upper extremities to some degree.
 
            
 
                 Claimant was also complaining of neck and shoulder 
 
            pain.  The greater weight of medical evidence shows no 
 
            objective findings to indicate a work-related injury.  The 
 
            medical testimony is substantially and materially tainted by 
 
            the incorrect or inadequate history, and considering 
 
            claimant's mental problems, the undersigned finds claimant's 
 
            shoulder, neck or other complaints are not work related.  
 
            There is no injury regarding those areas that have arisen 
 
            out of and in the course of claimant's employment, nor is 
 
            there any causal connection of claimant's complaints to the 
 
            work injury.  Claimant has failed to carry her burden of 
 
            proof as to those complaints.  The undersigned believes that 
 
            if claimant's mental disorder is solved by the suggested 
 
            long-term therapy, these other problems may very well 
 
            disappear.
 
            
 
                 Claimant filed two petitions.  From the record, it 
 
            appears claimant is taking a kitchen sink approach 
 
            indicating there are several dates that could be picked for 
 
            a cumulative injury.  The undersigned finds a September 26, 
 
            1986 date is the most logical date under the total 
 
            circumstances on the record herein.  It is also the date the 
 
            claimant thought she at least received a cumulative injury.  
 
            The undersigned finds that claimant did not incur a 
 
            cumulative work injury on August 15, 1985.
 
            
 
                 Claimant had many periods of time off work.  The 
 
            prehearing report, which is 29 pages long with contentions, 
 
            etc., attached, is confusing in part as to what the parties 
 
            are disputing or agreeing to.  The parties disputed several 
 
            issues and in most instances further stated that the 
 
            attached contentions by the parties probably reflect points 
 
            of agreement.  The purpose of the prehearing report is for 
 
            the parties to set out their contentions and disputes 
 
            separately and not to make it as confusing as it is.
 
            
 
                 The parties set out dates that claimant was off work.  
 
            Coordinating that to the decision herein, claimant had 
 
            several healing periods and periods of temporary partial 
 
            disability.  The undersigned finds claimant incurred the 
 
            following periods to which she was entitled to temporary 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            partial disability benefits which shows, from the record, 
 
            they have been paid by defendants, namely:
 
            
 
                 10/19/87 - 10/25/87           4/11/88  - 4/17/88
 
                 10/26/87 - 11/1/87            4/18/88  - 4/24/88
 
                 11/2/87  - 11/8/87            4/25/88  - 5/1/88
 
                 11/9/87  - 11/15/87           5/2/88   - 5/8/88
 
                 11/16/87 - 11/22/87           5/9/88   - 5/15/88
 
                 11/23/87 - 11/29/87           5/26/88  - 5/29/88
 
                 3/15/88  - 3/20/88            5/30/88  - 6/5/88
 
                 3/21/88  - 3/27/88            6/6/88   - 6/12/88
 
                 3/28/88  - 4/3/88             6/12/88  - 6/14/88
 
                 4/4/88   - 4/10/88
 
            
 
            
 
                 The following periods the undersigned finds are healing 
 
            periods for which claimant has been paid, namely:
 
            
 
                 11/7/86 - 10/18/87
 
                 2/4/88  - 3/14/88
 
                 5/16/88 - 5/25/88
 
            
 
            
 
                 In all instances for purposes of determining any 
 
            interest due as provided by the law, permanent partial 
 
            disability benefits would be suspended if any were due while 
 
            defendants were paying healing period or temporary partial 
 
            disability benefits.  In other words, permanent partial 
 
            disability benefits would not be payable at the same time as 
 
            temporary partial disability or healing period benefits are 
 
            being paid.
 
            
 
                 As to the issue of 86.13 penalty benefits, the 
 
            undersigned finds that the medical evidence would leave the 
 
            parties hesitant to know for sure what condition concerning 
 
            which claimant was complaining was, in fact, work related.  
 
            There are several letters in the record where an attorney 
 
            was trying to either clarify a prior report or lead a doctor 
 
            to a more precise and definite opinion.  The claimant's 
 
            attorney sent claimant to a psychologist obviously with the 
 
            intent that said psychologist would be opining favorably to 
 
            the claimant.
 
            
 
                 Claimant's attorney filed two actions and also 
 
            indicated that there were several dates for which claimant 
 
            desired the undersigned to attempt to pick an injury date 
 
            because claimant apparently determined her attorney was 
 
            unable to pick an injury date and claimant wasn't able to 
 
            determine when she was injured.  It was further obvious from 
 
            the comments of the parties, the prehearing report, 
 
            contentions and the evidence that in the end there was, in 
 
            fact, one cumulative injury, the date of which was to be 
 
            determined.
 
            
 
                 The undersigned finds that there was not a delay in the 
 
            commencement or termination of benefits without reasonable 
 
            or probable cause or excuse and that the claimant is not 
 
            entitled to any 86.13 penalty benefits.
 
            
 
                 The undersigned finds the greater weight of medical 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            evidence indicates claimant incurred a work-related 
 
            simultaneous bilateral injury to her upper extremities 
 
            resulting in a 3 percent permanent partial impairment to the 
 
            upper extremities and that said injury falls under the 
 
            provision of 85.34(2)(s).  Applying the statute and 
 
            converting the 3 percent to the body as a whole and using 
 
            the combined charts, claimant has incurred a 4 percent 
 
            permanent partial impairment to her body as a whole which 
 
            would entitle her to 20 weeks of permanent partial 
 
            disability benefits.  Said permanent partial disability 
 
            benefits should begin at the end of claimant's first healing 
 
            period, namely, October 19, 1987, and would be interrupted 
 
            by any subsequent healing period and begin again at the end 
 
            of any subsequent healing period until the total 20 weeks 
 
            have been paid.
 
            
 
                 The parties disputed the rate.  It appears the dispute 
 
            in part depends on the injury date found by the undersigned 
 
            so as to determined the number of exemptions.  It is 
 
            undisputed that if the September 26, 1988 injury that was 
 
            plead in file No. 837426 was the one determined by the 
 
            undersigned, then claimant would be entitled to four 
 
            exemptions instead of five which would apply to any work 
 
            injury that would have occurred after the birth of 
 
            claimant's last child on February 18, 1987.
 
            
 
                 The undersigned must rely upon the parties' prehearing 
 
            report and the contentions to determine what the claimant's 
 
            gross income for the period of the thirteen weeks before 
 
            September 26, 1986 would be.  Based on the poor record, it 
 
            would appear that the claimant's gross weekly income 
 
            averaged $350.47, therefore, making the rate applicable 
 
            herein of $226.65 per week. It is therefore found by the 
 
            undersigned that the rate for which benefits would be paid 
 
            is $226.65 per week.
 
            
 
                 The last issue involves the apparent dispute as to 
 
            costs.  Payment of costs is provided by rule 343 IAC 4.33, 
 
            which additionally refers to an Iowa statute.  In addition 
 
            thereto, as to further determining what may be a court cost, 
 
            each party is responsible as to their own costs, the cost of 
 
            a copy of a deposition.  This is considered the parties' 
 
            cost of doing business.  The cost of any original deposition 
 
            would be costs in this case.  Additionally, the costs 
 
            include the reasonable cost of obtaining no more than two 
 
            doctors' or practitioners' reports. The two highest medical 
 
            reports of claimant shall be considered costs in this case.  
 
            The statute and rule is clear as to any other dispute that 
 
            might be existing between the parties concerning this issue.
 
            
 
                 As to interest, it shall be paid as provided by law.  
 
            If, in fact, the parties do not know what the law is, or 
 
            can't figure it, then the parties should hire an accountant 
 
            or CPA to compute the interest and if the parties cannot 
 
            agree, then the undersigned may appoint an accountant or CPA 
 
            and assess the costs to the parties.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            of the evidence that she received injuries on August 15, 
 
            1985 and September 26, 1986 which arose out of and in the 
 
            course of her employment. McDowell v. Town of Clarksville, 
 
            241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967). 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injuries of August 
 
            15, 1985 and September 26, 1986 are causally related to the 
 
            disability on which she now bases her claim.  Bodish v. 
 
            Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl 
 
            v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
            possibility is insufficient; a probability is necessary.  
 
            Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 
 
            73 N.W.2d 732 (1955).  The question of causal connection is 
 
            essentially within the domain of expert testimony.  Bradshaw 
 
            v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 
 
            (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
            N.W.2d 128.
 
            
 
                 The Iowa Supreme Court cites, apparently with approval, 
 
            the C.J.S. statement that the aggravation should be material 
 
            if it is to be compensable.  Yeager v. Firestone Tire & 
 
            Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. 
 
            Workmen's Compensation sec. 555(17)a.
 
            
 
                 An employee is not entitled to recover for the results 
 
            of a preexisting injury or disease but can recover for an 
 
            aggravation thereof which resulted in the disability found 
 
            to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299; 
 
            Ziegler v. United States Gypsum Co., 252 Iowa 613, 106 
 
            N.W.2d 591 (1960).  See also Barz v. Oler, 257 Iowa 508, 133 
 
            N.W.2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 
 
            Iowa 724, 254 N.W. 35 (1934).
 
            
 
                 If a claimant contends he has industrial disability he 
 
            has the burden of proving his injury results in an ailment 
 
            extending beyond the scheduled loss.  Kellogg v. Shute and 
 
            Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964).
 
            
 
                 Iowa Code section 85.34(1) provides that if an employee 
 
            has suffered a personal injury causing permanent partial 
 
            disability, the employer shall pay compensation for a 
 
            healing period from the day of the injury until (1) the 
 
            employee returns to work; or (2) it is medically indicated 
 
            that significant improvement from the injury is not 
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
            anticipated; or (3) until the employee is medically capable 
 
            of returning to substantially similar employment.
 
            
 
                 A healing period may be interrupted by a return to 
 
            work.  Riesselman v. Carroll Health Center, III Iowa 
 
            Industrial Commissioner Report 09 (Appeal Decision 1982).
 
            
 
                 It is not necessary that claimant prove his disability 
 
            results from a sudden unexpected traumatic event.  It is 
 
            sufficient to show that a disability developed gradually or 
 
            progressively from work activity over a period of time.  
 
            McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
            1985).  The McKeever court also held that the date of injury 
 
            in a gradual injury case is the time when pain prevents the 
 
            employee from continuing to work.  In McKeever the injury 
 
            date coincides with the time claimant was finally compelled 
 
            to give up his job.  This date was then utilized in 
 
            determining rate and the timeliness of the claimant's claim 
 
            under Iowa Code section 85.26 and notice under Iowa Code 
 
            section 85.23.
 
            
 
                 Iowa Code section 85.34(2)(s) provides, in part:  "The 
 
            loss of both arms, or both hands, or both feet, or both 
 
            legs, or both eyes, or any two thereof, caused by a single 
 
            accident, shall equal five hundred weeks and shall be 
 
            compensated as such."
 
            
 
                 Workers' compensation benefits for permanent partial 
 
            disability of two members caused by a single accident is a 
 
            scheduled benefit under Iowa Code section 85.34(2)(s) and 
 
            that the degree of impairment caused by a partial loss must 
 
            be computed on the basis of functional, rather than 
 
            industrial disability.  Simbro v. DeLong's Sportswear, 332 
 
            N.W.2d 886 (1983).
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant did not incur a depression and mental 
 
            condition or disorder as a result of a cumulative work 
 
            injury and that her mental problems are not causally 
 
            connected to any work injury.
 
            
 
                 Claimant's mental disorder and depression are 
 
            materially and substantially caused by, but not necessarily 
 
            limited to, her and her sister's treatment and abuse as a 
 
            child and not by her work.  This abuse did have a material 
 
            effect on claimant's ability to do her job and her attitude 
 
            and relationship with her employer and fellow employees.
 
            
 
                 Claimant incurred a cumulative simultaneous bilateral 
 
            upper extremities injury on September 26, 1986, that arose 
 
            out of and in the course of claimant's employment which 
 
            caused claimant to incur three surgeries and a 3 percent 
 
            permanent impairment to each of claimant's upper 
 
            extremities.
 
            
 
                 Claimant is entitled to benefits under the provisions 
 
            of 85.34(2)(s).  Benefits are payable at the rate of $226.65 
 
            per week.
 
            
 

 
            
 
            Page  18
 
            
 
            
 
            
 
            
 
                 Claimant's alleged shoulder, neck and other complaints 
 
            are not causally connected to any work injury and were 
 
            substantially and materially effected by claimant's 
 
            nonoccupational mental disorder and mental problems and 
 
            conditions.  Claimant failed in her burden of proof as to 
 
            these injuries arising out of and in the course of her 
 
            employment and any causal connection.
 
            
 
                 Claimant reached maximum healing period on June 15, 
 
            1988.
 
            
 
                 Claimant is entitled to temporary partial disability 
 
            benefits at the rate of $226.65 for the periods of:
 
            
 
                 10/19/87 - 10/25/87           4/11/88  - 4/17/88
 
                 10/26/87 - 11/1/87            4/18/88  - 4/24/88
 
                 11/2/87  - 11/8/87            4/25/88  - 5/1/88
 
                 11/9/87  - 11/15/87           5/2/88   - 5/8/88
 
                 11/16/87 - 11/22/87           5/9/88   - 5/15/88
 
                 11/23/87 - 11/29/87           5/26/88  - 5/29/88
 
                 3/15/88  - 3/20/88            5/30/88  - 6/5/88
 
                 3/21/88  - 3/27/88            6/6/88   - 6/12/88
 
                 3/28/88  - 4/3/88             6/12/88  - 6/14/88
 
                 4/4/88   - 4/10/88
 
            
 
     
 
            
 
            
 
            Page  19
 
            
 
            
 
            
 
            
 
            That claimant is entitled to healing period benefits at the 
 
            rate of $226.65 for the period of:
 
            
 
                 11/7/86 - 10/18/87
 
                 2/4/88  - 3/14/88
 
                 5/16/88 - 5/25/88
 
            
 
                 The employer cooperated with and accommodated claimant.  
 
            Claimant quit work because of the effects that her nonoccupa
 
            tional mental disorder had on her ability to work.
 
            
 
                 Claimant did not incur a work-related cumulative injury 
 
            on August 15, 1985, which arose out of and in the course of 
 
            claimant's employment nor was it connected to any complaints 
 
            or disability from which claimant complains.
 
            
 
                 Claimant is not entitled to any 86.13 penalty benefits 
 
            as there was no unreasonable delay, commencement or 
 
            termination of any benefits.
 
            
 
                 Defendant Hartford Insurance Company is not liable for 
 
            payment of any benefits herein as it was the insurance 
 
            company for any work injury or incident that occurred on or 
 
            after January 4, 1988.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 As to file No. 837426 (September 26, 1986 Cumulative 
 
            Injury):
 
            
 
                 That defendants shall pay unto claimant healing period 
 
            benefits at the rate of two hundred twenty-six and 65/100 
 
            dollars ($226.65) beginning November 7, 1986 through October 
 
            18, 1987, February 4, 1988 through March 14, 1988, and May 
 
            16, 1988 through May 25, 1988.
 
            
 
                 That defendants shall pay unto claimant twenty (20) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of two hundred twenty-six and 65/100 dollars ($226.65) 
 
            beginning October 19, 1987 until paid except that said 
 
            permanent partial disability benefits shall be suspended 
 
            during any subsequent healing period set out herein and 
 
            continued again until the balance of the payments are paid.
 
            
 
                 That defendants shall pay unto claimant temporary 
 
            partial disability benefits for the following periods.
 
            
 
                 10/19/87 - 10/25/87           4/11/88  - 4/17/88
 
                 10/26/87 - 11/1/87            4/18/88  - 4/24/88
 
                 11/2/87  - 11/8/87            4/25/88  - 5/1/88
 
                 11/9/87  - 11/15/87           5/2/88   - 5/8/88
 
                 11/16/87 - 11/22/87           5/9/88   - 5/15/88
 
                 11/23/87 - 11/29/87           5/26/88  - 5/29/88
 
                 3/15/88  - 3/20/88            5/30/88  - 6/5/88
 
                 3/21/88  - 3/27/88            6/6/88   - 6/12/88
 
                 3/28/88  - 4/3/88             6/12/88  - 6/14/88
 
                 4/4/88   - 4/10/88
 
            
 

 
            
 
            Page  20
 
            
 
            
 
            
 
            
 
                 That permanent partial disability benefits are not 
 
            payable during those times in which temporary partial 
 
            benefits or healing period benefits are being paid.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That claimant takes nothing regarding file No. 801804 
 
            (alleged August 15, 1985 injury).
 
            
 
                 That defendants shall pay the costs of these actions, 
 
            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.
 
            
 
                 That where defendants are referred to above in this 
 
            order, it shall not be applicable to the Hartford Insurance 
 
            Company in that there is no liability for any injury herein 
 
            regarding said Hartford Insurance Company as their insurance 
 
            coverage did not occur within the injury date determined 
 
            herein.  Therefore, defendants in this order shall only 
 
            refer to Lauridsen Foods, Inc. and Employers Mutual 
 
            Insurance Company.
 
            
 
                 Signed and filed this ____ day of April, 1991.
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Mark S Soldat
 
            Attorney at Law
 
            714 E State St
 
            Algona IA 50511
 
            
 
            Mr Robert C Landess
 
            Attorney at Law
 
            Terrace Ctr  Ste 111
 
            2700 Grand Ave
 
            Des Moines IA 50312
 
            
 
            M4 George H Capps
 
            Mr Frank A Comito
 
            Attorneys at Law
 
            P O Box 971
 
            Des Moines IA 50304
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1100; 1803; 1803.1
 
                      4000; 1108.20; 1108.50
 
                      1400
 
                      Filed April 26, 1991
 
                      Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JOYCE MILLER,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 801804
 
            LAURIDSEN FOODS, INC.,        :               837426
 
                                          :
 
                 Employer,                :     A R B I T R A T I O N
 
                                          :
 
            and                           :        D E C I S I O N
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES    :
 
            and HARTFORD INSURANCE        :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carriers,      :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1803; 1803.1; 4000
 
            Claimant awarded 20 weeks of permanent partial disability 
 
            benefits, some healing period and temporary partial 
 
            disability on her September 26, 1986 cumulative and 
 
            simultaneous bilateral upper extremity injury under 
 
            85.34(2)(s).
 
            Claimant was not awarded 86.13 penalty benefit.
 
            
 
            5-1100; 1108.20; 1108.50; 1400
 
            Found claimant's mental problems did not arise out of and in 
 
            the course of claimant's employment and were not causally 
 
            connected to her injuries but, in fact, were rooted in her 
 
            and her sister's sexual abuse as children.  These problems 
 
            surfaced before any injury occurred.  This indigenous 
 
            personality disorder affected claimant's ability to work and 
 
            claimant's psychologic problems effected claimant's physical 
 
            complaints and true physical disability.
 
            Claimant took nothing from her alleged August 15, 1985 
 
            cumulative injury.
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            NOLA CURRY,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 837459
 
            BURGER KING,                  :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE FARM INSURANCE COMPANY, :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                 
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Nola 
 
            Curry, claimant, against Burger King, employer, and State 
 
            Farm Insurance Company, insurance carrier, as defendants.
 
            
 
                 The record in the case consists of testimony from the 
 
            claimant; and, joint exhibits 1-9.
 
            
 
                 The matter came on for hearing before the undersigned 
 
            deputy on March 21, 1991 at Des Moines, Iowa.
 
            
 
                 The parties stipulated that claimant's injury caused 
 
            temporary disability for a period of time; however whether 
 
            claimant sustained a permanent disability due to the injury 
 
            is still in dispute.  If claimant has sustained a permanent 
 
            disability, her loss of earning capacity, or industrial 
 
            disability must be addressed.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            having reviewed all of the evidence received, finds the 
 
            following facts:
 
            
 
                 Claimant was 55 years old at the time of the hearing.  
 
            She is married and has five (5) children.
 
            
 
                 Claimant attended Des Moines Technical High School 
 
            until the tenth or eleventh grade, but did not graduate.  
 
            She has not received her GED, nor has she taken any adult 
 
            education or trade classes.
 
            
 
                 Claimant began to work as an elevator operator for J.C. 
 
            Penney in 1953.  After approximately one year, she began to 
 
            work in a restaurant owned by her parents.  She performed 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            cooking, waitressing, and cleaning duties.  In 1955, 
 
            claimant stopped working outside of the home, and became 
 
            full-time mother and homemaker.
 
            
 
                 In September of 1985, claimant began to work for 
 
            defendant, Burger King.  She performed a variety of duties, 
 
            including working on the "Whopper" board to make sandwiches; 
 
            running the printer for orders; waiting on customers; 
 
            cleaning; cooking; and, operating the cash register.  She 
 
            worked on a part-time basis, although she worked overtime 
 
            hours if necessary.
 
            
 
                 Claimant was injured on April 21, 1986.  She was 
 
            working on the sandwich board which required her to turn 
 
            from one counter to another in order to add the necessary 
 
            ingredients for the sandwiches.  The floor had recently been 
 
            mopped, claimant turned, slipped and fell on her buttocks.  
 
            Claimant felt stiff, and felt as though she had been "jammed 
 
            from tail to neck."  Claimant continued to work, although 
 
            she testified that each day that went by, she felt more pain 
 
            in her neck, back and legs.
 
            
 
                 Claimant received medical treatment four weeks after 
 
            the injury, on May 16, 1986.  Initially, claimant received 
 
            treatment from Robert Shelton, D.C.  Dr. Shelton took x-rays 
 
            of the cervical and lumbar spine, which were essentially 
 
            negative for fracture or pathology.  He recommended an MRI.  
 
            His initial diagnosis was that of acute traumatic cervical 
 
            and thoracic strain with attending myalgia, as well as acute 
 
            traumatic strain/sprain of the sacrococcygeal ligaments.  
 
            She was treated with spinal adjustments and manipulations; 
 
            ultrasound; and, hot packs.  
 
            
 
                 Claimant returned to work at Burger King in September 
 
            of 1986.  Although she felt her condition had improved, her 
 
            work duties aggravated her condition, and claimant stated 
 
            she could hardly walk after her shift.
 
            
 
                 Claimant continued to see Dr. Shelton until October of 
 
            1986.  She was referred to Marvin Dubansky, M.D., and was 
 
            first treated by him on October 14, 1986.  (Joint Exhibit 1, 
 
            #2)  Dr. Dubansky examined claimant, and she was treated 
 
            with an injection in the coccyx.  She was instructed to use 
 
            a rubber ring when sitting in a chair, and was also advised 
 
            to take sitz baths.  (Jt. Ex. 1, #2, pages 5-6)
 
            
 
                 Claimant returned to Dr. Dubansky on October 23, 1986.  
 
            He noted good range of motion of the hip, knee, shoulder and 
 
            hand, but on examination found tenderness in the cervical 
 
            dorsal, mid-dorsal, lumbosacral and coccyx areas.  He 
 
            recommended no further treatment.  (Jt. Ex. 1, #2, p.7)
 
            
 
                 Claimant sought treatment from Michael Stein, D.O., on 
 
            November 1, 1986 on referral from Dr. Dubansky.  Dr. Stein 
 
            performed a neurological examination, and his clinical 
 
            impression was that he did not find any objective findings.  
 
            He ordered an electromyogaphic (EMG) study, which was 
 
            normal.  (Jt. Ex. 1, #3, pp. 11-15)
 
            
 
                 Claimant returned to Dr. Dubansky on December 22, 1986.  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            He recommended physical therapy at Mercy Hospital Medical 
 
            Center, as claimant was still complaining of pain in the low 
 
            back.  (Jt. Ex. 1, #2, p. 8)
 
            
 
                 Claimant began physical therapy on February 25, 1987.  
 
            The attending physician, James Blessman, M.D., noted that 
 
            claimant complained of low back pain without any 
 
            identifiable structural defect on physical examination.  He 
 
            felt she was developing a chronic pain syndrome, and 
 
            actively sought, through an exercise program, to 
 
            rehabilitate her.  He recommended she stop smoking and 
 
            decrease her weight.  (Jt. Ex. 1, #7, pp. 39-40)
 
            
 
                 The physical therapy notes indicate that claimant made 
 
            little, if any progress, yet her symptoms increased, with 
 
            complaints of aching in both arms and numbness of both 
 
            hands.  She was given a TENS unit which helped, but her 
 
            condition remained essentially the same.
 
            
 
                 Discharge notes from Dr. Blessman dated May 4, 1987 
 
            indicate that x-rays were normal; EMG studies of the lower 
 
            extremity were normal; physical examination was normal; gait 
 
            and reflexes were normal; range of motion of the lumbar 
 
            spine was normal; and, straight leg raising tests were 
 
            negative, bilaterally.  Dr. Blessman discharged claimant and 
 
            felt "that she could return to her previous employment 
 
            working in the food preparation area of a fast food 
 
            restaurant, specifically Burger King."  He limited her from 
 
            lifting more than 30 pounds and limited repetitive bending 
 
            or stooping.  He also recommended an exercise program 
 
            available at the Mercy Wellness Center.  (Jt. Ex. 1, #8, p. 
 
            38)
 
            
 
                 Claimant testified that she continued follow-up 
 
            treatment one time a month for six months at the Pain 
 
            Center.  Therapy included pool and water and physical 
 
            exercises; stress management; relaxation techniques; and, 
 
            physical therapy, if scheduled.  
 
            
 
                 The records indicate that claimant continued to seek 
 
            medical attention from Mercy Hospital Medical Center from 
 
            March 30, 1988 through April of 1988.  She was eventually 
 
            referred to William Boulden, M.D.  (Jt. Ex. 1, #8, pp. 
 
            45-46)
 
            
 
                 He saw her on several occasions, from July of 1988 
 
            through August of 1988.  He reviewed the MRI, and concluded 
 
            it was normal.  Dr. Boulden's final assessment was that a 
 
            soft tissue injury to be treated with conservative 
 
            modalities.  He was of the opinion that claimant had 
 
            sustained no permanent disability.  (Jt. Ex. 1, #1, pp. 1-4)
 
            
 
                         analysis and Conclusions of law
 
            
 
                 The first issue to be addressed is whether claimant's 
 
            injury caused a permanent disability.
 
            An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            The claimant has the burden of proving by a preponderance of 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            the evidence that the injury of April 26, 1986, is causally 
 
            related to the disability on which she now bases her claim.  
 
            Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
            (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 
 
            (1945).  A possibility is insufficient; a probability is 
 
            necessary.  Burt v. John Deere Waterloo Tractor Works, 247 
 
            Iowa 691, 73 N.W.2d 732 (1955).  The question of causal 
 
            connection is essentially within the domain of expert 
 
            testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
            375, 101 N.W.2d 167 (1960). 
 
            However, expert medical evidence must be considered with all 
 
            other evidence introduced bearing on the causal connection.  
 
            Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts 
 
            need not be couched in definite, positive or unequivocal 
 
            language.  Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 
 
            1974).  However, the expert opinion may be accepted or 
 
            rejected, in whole or in part, by the trier of fact.  Id. at 
 
            907.  Further, the weight to be given to such an opinion is 
 
            for the finder of fact, and that may be affected by the 
 
            completeness of the premise given the expert and other 
 
            surrounding circumstances.  Bodish, 257 Iowa 516, 133 N.W.2d 
 
            867.  See also Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967).
 
            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 significant 
 
            factor, not be the only factor causing the claimed 
 
            disability.  Blacksmith v. All-American, Inc., 290 N.W.2d 
 
            348, 354 (Iowa 1980).
 
            
 
                 Claimant's condition has been evaluated by several 
 
            health care providers.  Although there are conflicting views 
 
            as to the extent of the injury and claimant's overall 
 
            physical status, the undersigned finds substantial evidence 
 
            in the record to support a finding that claimant has 
 
            sustained a permanent disability due to her work-related 
 
            fall at Burger King.  Dr. Blessman causally linked the 
 
            injury and claimant's pain, and medically restricted some of 
 
            claimant's activities.  Claimant credibly testified that she 
 
            still experiences some low back discomfort upon 
 
            over-exertion.
 
            
 
                 The next issue to be determined is whether claimant has 
 
            sustained an industrial disability.
 
            
 
                 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, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 Subsequent to the injury at Burger King, claimant went 
 
            to work at Flo's Restaurant in Des Moines as a waitress for 
 
            $2.50 per hour.  Claimant worked from late January of 1989 
 
            through August of 1989 on a part-time basis.  Claimant 
 
            testified that the work bothered her back, and as a result 
 
            she had to quit. 
 
            
 
                 Claimant also worked for K Mart as a cashier for four 
 
            weeks in February and March of 1990.  She earned 
 
            approximately $4.00 per hour on a part-time basis, but quit 
 
            because the work aggravated and caused pain in her low back 
 
            and legs.
 
            
 
                 Claimant then returned to Flo's Restaurant in October 
 
            of 1990 and worked for approximately two months.  Again, she 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            stopped working due to the pain.
 
            
 
                 Since October of 1990, claimant has not worked, nor has 
 
            she looked for any type of a job.  She has undergone no 
 
            vocational rehabilitation because she does not feel she is 
 
            qualified to do things other than waitressing.  She has 
 
            received no unemployment.
 
            
 
                 Claimant has received one functional impairment rating, 
 
            which was given on March 2, 1988 by Dr. Shelton:
 
            
 
                 As stated in the Human Spine in Health and 
 
                 Disease, pages 283 and 423, 2nd American edition.  
 
                 "Contusions of the coccyx resulting from a fall 
 
                 upon the buttocks plays an important role in 
 
                 coccyxgeal pain."  Although the A.M.A. guide to 
 
                 the evaluation of permanent impairment, does not 
 
                 specifically mention coccyx pain, it does state 
 
                 that loss of function due to sensory deficit, pain 
 
                 or discomfort of the sciatic nerve can have up to 
 
                 a 10% whole body disability.  This information can 
 
                 be found on page 55, table 9, column 1 of the 
 
                 A.M.A. guide to the evaluation of permanent 
 
                 impairment.  Using this criteria, I would rate 
 
                 Mrs. Curry the maximum 10% whole body disability.
 
            
 
            (Jt. Ex. 1, #5, p. 20)
 
            
 
                 Dr. Blessman declined to give claimant an impairment 
 
            rating, but restricted her lifting capacity to no more than 
 
            30 pounds, and limited repetitive bending or stooping.  (Jt. 
 
            Ex. 1, #7, p. 31; Jt. Ex. 1, #8, p. 38)  Dr. Blessman 
 
            released claimant to return to her previous employment of 
 
            working in the food preparation area of a fast food 
 
            restaurant.
 
            
 
                 As stated previously, claimant did not finish high 
 
            school and has not received her GED.
 
            
 
                 The central question focuses on claimant's loss of 
 
            earning capacity.  Although she has been given an impairment 
 
            rating, the rating is primarily based upon pain.  It has 
 
            been noted by the Agency, that pain which is not 
 
            substantiated by clinical findings is not a substitute for 
 
            impairment.  See, Waller v. Chamberlain Mfg., II Iowa 
 
            Industrial Commissioner Report 419, 425 (1981).  The record 
 
            does not indicate any substantial, significant clinical 
 
            findings which correlate with the objective pain expressed 
 
            by claimant.  Various conservative modalities have been 
 
            prescribed and treatment has been rendered, and claimant has 
 
            shown some improvement.  She has been released to return to 
 
            work in the same type of employment in which she was working 
 
            at the time of the injury.
 
            
 
                 Neither the chiropractor nor any of the physicians with 
 
            whom claimant has treated limited her lifting activities in 
 
            such a manner as to prevent her from working in a fast food 
 
            restaurant.  Claimant has a limited work history, and the 
 
            evidence does not suggest that she has held jobs which 
 
            require her to lift more than 30 pounds.  It is conceivable 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            that claimant would have to repetitively bend and/or stoop 
 
            in fast food restaurant work, or any type of waitressing 
 
            job.
 
            
 
                 After considering the evidence as it relates to the 
 
            factors which comprise an industrial disability, it is found 
 
            that claimant has a five (5) percent industrial disability.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay unto to claimant twenty-five 
 
            (25) weeks of permanent partial disability benefits at the 
 
            rate of sixty-five and 99/100 dollars ($65.99) per week, 
 
            commencing on April 12, 1987;
 
            
 
                 That defendant shall pay the accrued amounts in a lump 
 
            sum and shall receive credit against the award for weekly 
 
            permanency benefits previously paid;
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30;
 
            
 
                 That defendants shall pay the costs of this proceeding, 
 
            pursuant to rule 343 IAC 4.33;
 
            
 
                 That defendant shall file a claims activity report as 
 
            requested by the agency pursuant to rule 343 IAC 3.1(2).
 
            
 
                 Signed and filed this ____ day of June, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr David D Drake
 
            Attorney at Law
 
            West Towers Office Complex
 
            1200 35th Street, Ste 500
 
            West Des Moines Iowa 50265
 
            
 
            Ms Judith Ann Higgs
 
            Attorney at Law
 
            701 Pierce Street Ste 200
 
            PO Box 3086
 
            Sioux City Iowa 51102
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1800
 
                      Filed June 10, 1991
 
                      PATRICIA J. LANTZ
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            NOLA CURRY,    :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 837459
 
            BURGER KING,   :
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            STATE FARM INSURANCE COMPANY, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            
 
            5-1800
 
            Claimant, 55 years old, fell at work and bruised her 
 
            tailbone.
 
            Treating physician imposed a 30 pound lifting restriction 
 
            and limited bending, lifting and stooping activities.
 
            Chrisopractor imposed a 10 percent functional impairment 
 
            based on pain.
 
            Claimant was a part-time worker at a fast food restaurant at 
 
            the time of her injury.  She was awarded five percent 
 
            industrial disability.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
                   
 
         ROBERT D. LEONHARD,
 
         
 
              Claimant,                               File No. 837603
 
         
 
         vs.                                       A R B I T R A T I O N
 
         
 
         HYMAN FREIGHTWAYS, INC.,                     D E C I S I O N
 
         
 
              Employer,                                  F I L E D
 
         
 
         and                                            MAY 9 1989
 
         
 
         TRANSPORT INDEMNITY COMPANY,              INDUSTRIAL SERVICES
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by claimant 
 
         Robert D. Leonhard against defendant employer Hyman Freightways, 
 
         Inc., and defendant insurance carrier Transport Indemnity Company 
 
         to recover benefits under the Iowa Workers' Compensation Act as 
 
         the result of an injury sustained on December 14, 1984.  This 
 
         matter came on for hearing in Burlington, Iowa, on April 26, 
 
         1989, and was considered fully submitted on that date.
 
         
 
              The evidence in this case consists of claimant's exhibits 1 
 
         through 12, inclusive, and defendants' exhibits A through D, 
 
         inclusive.  In addition, claimant testified personally.
 
         
 
                                   ISSUES
 
         
 
              Pursuant to the prehearing report approved by the deputy at 
 
         hearing, the parties have stipulated:  To the existence of an 
 
         employment relationship at the time of the alleged injury; that 
 
         claimant sustained an injury on December 14, 1984, arising out of 
 
         and in the course of that employment; that the injury caused 
 
         temporary total disability from December 14, 1984 through March 
 
         18, 1985 and again from March 28, 1988 through May 9, 1988; that 
 
         the work injury did not cause permanent disability; that 
 
         affirmative defenses are waived; that all requested medical 
 
         benefits have been or will be paid by defendants.
 
         
 
              Issues remaining to be resolved include claimant's rate of 
 
         compensation (although it was stipulated that claimant's marital 
 
         status was married and he was entitled to four exemptions) and 
 
         the extent to which defendants are entitled to credit on the 
 
                                                
 
                                                         
 
         basis of benefits voluntarily paid prior to hearing.
 
         
 
                          REVIEW OF THE EVIDENCE
 
         
 
              Claimant entered into an owner-driver lease agreement with 
 
         defendant Hyman Freightways on November 4, 1983, and operated 
 
         under that agreement at the time of his injury.  He was injured 
 
         when his abdomen was punctured by the handle of a pallet jack.  A 
 
         surgical repair was performed, but claimant required additional 
 
         surgical treatment several years later when he continued 
 
         suffering from an infection due to his body's reaction to mesh 
 
         that had been placed in the original wound.
 
         
 
              Pursuant to claimant's lease agreement with defendant, the 
 
         truck itself was paid 62% of total revenues for given trips. 
 
         Claimant was deemed an employee of Hyman Freightways, and was 
 
         paid for his services as a driver 26% of the gross revenues, and 
 
         was additionally paid 36% of the gross revenues for the use of 
 
         the equipment.  Claimant agreed in his testimony that employer 
 
         had the right to hire a different driver for the tractor and that 
 
         claimant would receive only the 36% lease fee if he did not 
 
         personally drive.
 
         
 
              At the time of his injury, claimant had earned $23,968.50 as 
 
         wages (the 26% of total revenues agreed upon), and was disabled 
 
         for the balance of 1984.  He was also paid $50,248.90 pursuant to 
 
         the lease agreement for use of the equipment.
 
         
 
              Both parties treated the wage portion of the total in a 
 
         different manner than the equipment rental portion.  Claimant did 
 
         so on his 1984 federal tax return in evidence, showing wages and 
 
         profits from business separately.  Defendant reported the wages 
 
         portion on a W-2 form and the rental portion on a miscellaneous 
 
         income form 1099.
 
         
 
              Defendants paid benefits from December 14, 1984 through 
 
         March 18, 1985 on a voluntary basis at a weekly rate of $291.57.
 
         
 
                      APPLICABLE LAW AND ANALYSIS
 
         
 
              Computation of compensation rates is performed under Iowa 
 
         Code section 85.36, and the various subparagraphs thereunder. 
 
         Weekly earnings are defined as "gross salary, wages, or earnings 
 
         of an employee . . . for the work or employment for which the 
 
         employee was employed,. . ."  "Gross earnings" are defined in 
 
         Iowa Code section 85.61(12) as "recurring payments by employer to 
 
         the employee for employment, before any authorized or lawfully 
 
         required deduction or withholding of funds by the employer, 
 
         excluding irregular bonuses, retroactive pay, overtime, penalty 
 
         pay, reimbursement of expenses, expense allowances, and the 
 
         employer's contribution for welfare benefits."
 
         
 
              It is undisputed on this record that claimant essentially 
 
         wore two hats:  One as an employee, one as a lessor of equipment. 
 
         The parties recognized the duality of claimant's position by 
 
                                                
 
                                                         
 
         breaking down his compensation into the labor component and lease 
 
         component.  There is no indication that this was an arbitrary or 
 
         irrational approach, and is in fact consistent with claimant's 
 
         testimony that he would have been paid only the lease portion had 
 
         another driver been utilized by defendant employer.
 
         
 
              The fighting issue in this case is whether claimant's rate 
 
         of compensation should be based only upon the labor portion of 
 
         his compensation or upon the entire compensation earned by the 
 
         truck and driver during his tenure in 1984.  The undersigned is 
 
         of the view that the portion of claimant's compensation 
 
         attributable to the leasing of equipment cannot be considered 
 
         earnings from employment, and therefore fall outside of the 
 
         statute as cited above.
 
         
 
              The industrial commissioner has dealt with this issue in the 
 
         past.  Tuttle v. Mickow Corp., file number 672377, (Remand Decn., 
 
         December 20, 1988); Christensen v. Hagen, Inc., file number 
 
         643433, (App. Decn., March 26, 1985).  The factual situations in 
 
         those cases were a good deal more complex in terms of the 
 
         agreement reached between respective freight companies and 
 
         owner-operators.  The undersigned is of the view that these 
 
         precedents are controlling as to the issue of whether 
 
         compensation based upon the leasing of equipment is to be 
 
         included in earnings.  It is not.  However, the arithmetical 
 
         calculations employed in those cases do not seem appropriate to 
 
         the case at hand, since the parties have themselves made a clear 
 
         differentiation between wage income and lease income.
 
         
 
              Based on the foregoing, it is held that claimant's rate of 
 
         compensation should be calculated on the basis of his earnings 
 
         from driving during 1984 and not on his compensation for leasing 
 
         his truck to defendant.  Therefore, claimant's earnings for 1984 
 
         are $23,968.50.
 
         
 
              A review of the various paragraphs under section 85.36 of 
 
         The Code shows that 85.36(6) appears to be the appropriate 
 
         section for calculation of claimant's rate.  That is, claimant 
 
         was paid "by the output" as opposed to on a time basis such as 
 
         hourly or weekly; there is no indication that he was a part-time 
 
         employee. Calculation of rate under 85.36(6) is to be computed by 
 
         dividing by 13 the earnings of the employee "earned in the employ 
 
         of the employer" in the last completed period of 13 consecutive 
 
         calendar weeks preceding the injury.  The parties in this case 
 
         did not favor the record by presenting evidence as to claimant's 
 
         earnings in the 13 weeks preceding the injury.  However, counsel 
 
         agreed on the record that there is no reason to believe that 
 
         those 13 weeks were dissimilar from the other weeks claimant 
 
         worked in 1984. Therefore, it appears to the undersigned that the 
 
         appropriate method for determining claimant's rate is to divide 
 
         his entire 1984 earnings from employment by the number of weeks 
 
         he was employed.
 
         
 
              As 1984 was a leap year, it contained 366 days.  Because of 
 
         his injury, claimant was disabled during the last 18 days of the 
 
                                                
 
                                                         
 
         year, so he worked during 348 days.  Three hundred forty-eight 
 
         divided by 366 is .95082. Multiplying 52 weeks by .95082 yields 
 
         49.4426 weeks, which is what claimant actually worked in 1984. 
 
         Claimant's gross wages in 1984 of $23,968.50 divided by 49.4426 
 
         weeks equals a gross weekly average wage of $484.77.  An 
 
         examination of the workers' compensation benefit schedule 
 
         effective July 1, 1984 and published by the industrial 
 
         commissioner shows that the rate for a married individual with 
 
         four exemptions and gross weekly wages of $484.77 is $300.86. 
 
         Therefore, this is claimant's appropriate rate.
 
         
 
                                FINDINGS OF FACT
 
         
 
              THEREFORE, based upon the evidence presented, the following 
 
         ultimate facts are found:
 
         
 
              1.  During calendar year 1984, claimant was employed as a 
 
         truck driver by defendant Hyman Freightways, Inc., operating 
 
         under an owner-driver lease agreement in which he both leased 
 
         equipment to defendant and drove the equipment as an employee.
 
         
 
              2.  Pursuant to the agreement, claimant was compensated on 
 
         the basis of 62% of the gross revenues earned by the truck for 
 
         freight hauling; this was further divided by the parties into a 
 
         26% payment to the driver of the truck for labor and a 36% 
 
 
 
                  
 
                                                         
 
         payment to the owner of the truck as lessor of equipment.
 
         
 
              3.  Claimant suffered an injury arising out of and in the 
 
         course of his employment on December 14, 1984, and was 
 
         temporarily disabled for the balance of that calendar year.
 
         
 
              4.  As of the date of his injury, claimant had earned as the 
 
         labor component of his lease agreement the sum of $23,968.50, 
 
         or-an average gross weekly wage of $484.77.
 
         
 
              5.  At the time of his injury, claimant was married and had 
 
         four exemptions.
 
         
 
              6.  As stipulated, claimant was temporarily totally disabled 
 
         from December 14, 1984 through March 18, 1985 and again March 28, 
 
         1988 through May 9, 1988; he has suffered no permanent 
 
         disability.
 
         
 
              7.  Defendants voluntarily paid benefits from December 14, 
 
         1984 through March 18, 1985 at a calculated rate of $291.57.  He 
 
         was not paid compensation for his second period of temporary 
 
         total disability.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the principles of law previously 
 
         cited, the following conclusions of law are made:
 
         
 
              1.  Claimant's correct rate of weekly compensation is 
 
         $300.86.
 
         
 
              2.  Claimant's rate of compensation must be calculated on 
 
         the basis of his labor in employment and not on his function as a 
 
         lessor of equipment.
 
         
 
                                    ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants are to pay unto claimant temporary total 
 
         disability benefits from December 14, 1984 through March 18, 1985 
 
         [thirteen point-five seven one (13.571) weeks] and from March 28, 
 
         1988 through May 9, 1988 [six point one four three (6.143) weeks] 
 
         at the rate of three hundred and 86/100 dollars ($300.86) 
 
         totalling five thousand nine hundred thirty-one and 15/100 
 
         dollars ($5,931.15).
 
         
 
              Defendants shall be entitled to credit for thirteen point 
 
         five seven one (13.571) weeks of compensation paid at the rate of 
 
         two hundred ninety-one and 57/100 dollars ($291.57), for a total 
 
         of three thousand nine hundred fifty-six and 90/100 dollars 
 
         ($3,956.90).
 
         
 
              The benefits awarded shall be paid in a lump sum together 
 
         with statutory interest pursuant to Iowa Code section 85.30.
 
                                                
 
                                                         
 
         
 
              The costs of this action shall be assessed to defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendants shall file a claim activity report pursuant to 
 
         Division of Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 9th day of May, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                             DAVID RASEY
 
                                             DEPUTY INDUSTRIAL 
 
                                             COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. William Bauer
 
         Attorney at Law
 
         Sixth Floor, Burlington Building
 
         P.O. Box 517
 
         Burlington, Iowa  52601
 
         
 
         Mr. Richard M. McMahon
 
         Attorney at Law
 
         600 Union Arcade Building
 
         111 East Third Street
 
         Davenport, Iowa  52801-1550
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            3001
 
                                            Filed May 9, 1989
 
                                            DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROBERT D. LEONHARD,
 
         
 
              Claimant,
 
         
 
         vs.                                          File No. 837603
 
         
 
         HYMAN FREIGHTWAYS, INC.,                  A R B I T R A T I 0 N
 
         
 
              Employer,                               D E C I S I 0 N
 
         
 
         and
 
         
 
         TRANSPORT INDEMNITY COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         3001
 
         
 
              Truck owner/operator's rate was calculated on the basis of 
 
         labor component of total compensation, and not lease component 
 
         for use of equipment.  Distinguishing Tuttle v. Mickow Corp., 
 
         (Remand Decn., December 20, 1988, file number 672377), the 
 
         parties' breakdown of total compensation package was accepted.