Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CATHY RAY,                    :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 837615
 
            DUBUQUE PACKING CO.,          :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            SENTRY INSURANCE COMPANY,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Defendants appeal from an arbitration decision awarding  
 
            permanent partial disability benefits as the result of an 
 
            alleged injury on April 27, 1987.  The record on appeal 
 
            consists of the transcript of the arbitration proceeding; 
 
            claimant's exhibits 1 through 33, 35 and 36; and defendants' 
 
            exhibits A through C.  Both parties filed briefs on appeal.  
 
            Claimant filed a reply brief.
 
            
 
                                      ISSUES
 
            
 
                 Defendants state the following issues on appeal:
 
            
 
                 A.  Whether the Deputy Industrial Commissioner 
 
                 erred as a matter of law in determining that a 
 
                 permanent physical impairment or permanent 
 
                 limitation in work activity is not necessary to 
 
                 arrive at a finding of permanent disability.
 
            
 
                 B.  Whether there exists substantial evidence in 
 
                 the record to support the deputy's findings of 
 
                 fact and in particular:
 
            
 
                    (1) Finding #2:  That Claimant suffered an 
 
                    injury to her shoulders and neck on April 27, 
 
                    1987 which forced her to permanently leave her 
 
                    employment at Dubuque.
 
            
 
            (2) Finding #3:  That although there is no 
 
            ascertainable functional impairment, Claimant 
 
            is unable to return to work as a meat cutter or 
 
            any other heavy or medium heavy repetitive 
 
            strenuous work due to her tendinitis and 
 
            synovitis condition.
 
            
 
            (3)  Finding #4:  That Claimant suffered a 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            sixty (60) percent loss of earning capacity and 
 
            that her physician imposed activity 
 
            restrictions prevent a return to work to all 
 
            manual labor jobs that she held in the past.
 
            
 
                 C.  Whether the Deputy erred in determining that 
 
                 as a matter of law Claimant was entitled to 300 
 
                 weeks of permanent partial disability benefits and 
 
                 to medical benefits set forth in the prehearing 
 
                 report.
 
            
 
                              REVIEW OF THE EVIDENCE
 
            
 
                 The arbitration decision adequately and accurately 
 
            reflects the pertinent evidence and it will not be set forth 
 
            herein. 
 
            
 
                                  APPLICABLE LAW
 
            
 
                 The citations of law in the arbitration decision are 
 
            appropriate to the issues and the evidence.
 
            
 
                                     ANALYSIS
 
            
 
                 Defendants' first issue on appeal asserts that the 
 
            deputy improperly held that claimant could be awarded 
 
            industrial disability absent any evidence of permanent 
 
            physical impairment.  Defendants assert that the record is 
 
            devoid of evidence to indicate that claimant suffers a 
 
            permanent physical impairment, and thus claimant has failed 
 
            to carry her burden of proof.  Defendants assert that 
 
            industrial disability cannot be found unless claimant has 
 
            shown she has suffered a permanent injury.
 
            
 
                 It is not necessary to address this question, as the 
 
            record does contain medical evidence of permanent physical 
 
            impairment.  Pat Luse, B.S., P.C., F.A.C.D., assigned 
 
            claimant a rating of permanent physical impairment of five 
 
            percent of the whole person, using the AMA Guides to the 
 
            Evaluation of Permanent Impairment.  Defendants argue that 
 
            diagnoses of synovitis and tendonitis by two of claimant's 
 
            physicians were made while claimant was still working, and 
 
            represent temporary conditions related to the ongoing work 
 
            activity.  However, claimant stopped working in 1987.  Dr. 
 
            Luse's rating of permanency was given in November of 1989, 
 
            considerably after claimant stopped working.  Dr. Luse's 
 
            rating of impairment is the only rating in the record.
 
            
 
                 In addition, there is no medical opinion in the record 
 
            stating that claimant's condition is other than permanent.  
 
            Joel T. Cotton, M.D., did conclude that claimant had no 
 
            neurological injury, but he could not state whether she had 
 
            suffered any injury to her bones or other systems.  Her neck 
 
            and back condition is described as "chronic" and "recurring" 
 
            by several physicians.  Even absent the permanent impairment 
 
            rating of Dr. Luse, the medical evidence taken as a whole 
 
            indicates that claimant's condition is a permanent physical 
 
            impairment.
 
            
 
                 Defendants also assert as appeal issues that various 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            findings of fact in the deputy's decision are not supported 
 
            by substantial evidence.  Initially, it is noted that review 
 
            of a deputy's decision by the industrial commissioner is de 
 
            novo.  Keifer v. Swift Independent Packing Co., Appeal 
 
            Decision, September 12, 1986.  Substantial evidence is the 
 
            standard of judicial review of final agency action.  
 
            Defendants' appeal issues B(1), B(2) and B(3) will be 
 
            considered to be allegations that claimant has failed to 
 
            meet her burden of proof in regard to the findings of fact 
 
            listed in defendants' appeal issues.  Defendants' appeal 
 
            issue C challenges the conclusion that claimant is 60% 
 
            industrially disabled.
 
            
 
                 Claimant has met her burden of proof to show that as a 
 
            result of a cumulative injury on April 27, 1987, she now 
 
            suffers an industrial disability.  The analysis of the 
 
            deputy is adopted in all aspects except the degree of 
 
            industrial disability.
 
            
 
                 Claimant's work experience is limited to manual labor 
 
            jobs.  Claimant cannot return to her former job.  Claimant 
 
            has been out of work and suffered a severe loss of earnings.  
 
            Claimant's permanent physical impairment is not extensive, 
 
            but it does affect the parts of her body she formerly 
 
            utilized to perform her duties for employer.  Claimant would 
 
            now be foreclosed from similar occupations due to her 
 
            impairment.  
 
            
 
                 Claimant was 28 years old at the time of her injury, 
 
            and 32 years old at the time of the hearing.  Claimant has a 
 
            G.E.D.  Claimant is low functioning intellectually.  
 
            Claimant is young enough to be retrained.  However, the 
 
            vocational rehabilitation studies show that claimant would 
 
            not benefit greatly from classroom retraining due to her 
 
            marginal intellect.  Claimant would need on the job training 
 
            for any occupation she undertook.  Claimant's difficulty in 
 
            being retrained increases her disability. 
 
            
 
                 Based on these and all other factors pertaining to 
 
            industrial disability, claimant is found to have an 
 
            industrial disability of 40% as a result of her work injury.
 
            
 
                     
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            FINDINGS OF FACT
 
            
 
                 1.  Claimant received an injury arising out of and in 
 
            the course of her employment with defendant employer.
 
            
 
                 2.  Claimant's injury was a cumulative injury to her 
 
            neck and back.  
 
            
 
                 3.  Claimant was compelled to leave her work as a 
 
            result of her injury on April 27, 1987.
 
            
 
                 4.  Claimant was 28 years old at the time of her 
 
            injury.  Claimant was 32 years old at the time of the 
 
            hearing.
 
            
 
                 5.  Claimant has a GED and poor academic skills.
 
            
 
                 6.  As a result of her injury, claimant has a five 
 
            percent permanent partial impairment of the body as a whole.  
 
            
 
                 7.  Claimant has physician-imposed work activity 
 
            restrictions as a result of her work injury.
 
            
 
                 8.  Claimant's work experience is limited to manual 
 
            labor.
 
            
 
                 9.  As a result of her injury, claimant cannot return 
 
            to her work as a meat packer or work in other manual labor 
 
            occupations.
 
            
 
                 10. Claimant has little or no potential for classroom 
 
            retraining.
 
            
 
                 11. Claimant is capable of performing light duty jobs.
 
            
 
                 12. As a result of her work injury, claimant has lost 
 
            40 percent of her earning capacity.
 
            
 
                                CONCLUSION OF LAW
 
            
 
                 Claimant has established under law entitlement to 200 
 
            weeks of permanent partial disability benefits and to 
 
            medical benefits set forth in the prehearing report.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay to claimant two hundred (200) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of two hundred seventeen and 27/100 dollars ($217.27) per 
 
            week from April 27, 1987.
 
            
 
                 That defendants shall pay the medical expenses listed 
 
            in the prehearing report, exhibits 33 through 36.  Claimant 
 
            shall be reimbursed for any of these expenses paid by him.  
 
            Otherwise, defendants shall pay the provider directly along 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            with any lawful late payment penalties imposed upon the 
 
            unpaid account by the provider.
 
            
 
                 That defendants shall pay the accrued weekly benefits 
 
            in a lump sum.
 
            
 
                 That defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            including the cost of transcribing the arbitration decision, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of December, 1990.
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                   CLAIR R. CRAMER
 
                                           ACTING INDUSTRIAL 
 
            COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harry H. Smith
 
            Attorney at Law
 
            632 Badgerow Bldg.
 
            Sioux City, Iowa 51101
 
            
 
            Mr. Paul W. Deck, Jr.
 
            Mr. Brian L. Yung
 
            Attorneys at Law
 
            635 Frances Bldg.
 
            Sioux City, Iowa 51101
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            5-1803
 
            Filed December 24, 1990
 
            LPW
 
            Clair R. Cramer
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CATHY RAY,                    :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 837615
 
            DUBUQUE PACKING CO.,          :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            SENTRY INSURANCE COMPANY,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            On appeal, defendants raised as an issue whether claimant 
 
            could be entitled to an award of industrial disability 
 
            without a showing of permanent physical impairment.  (There 
 
            was no McSpadden/Blacksmith employer conduct.)  However, on 
 
            appeal it was noted that the record did contain a 
 
            chiropractor's rating of permanent physical impairment.  
 
            This opinion was properly admitted into the record, and 
 
            there was no contrary or impeaching evidence.  
 
            Claimant, 28 years old at time of the injury and 32 at the 
 
            time of the hearing, with a five percent impairment of the 
 
            body as a whole as a result of a neck injury, with 
 
            restrictions, an inability to return to her work in meat 
 
            packing, work experience limited to manual labor, a GED and 
 
            test results showing an inability to benefit from retraining 
 
            in a classroom setting, was awarded 40 percent industrial 
 
            disability.  
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CATHY RAY,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                File No. 837615
 
         DUBUQUE PACKING CO.,
 
                                               A R B I T R A T I 0 N
 
              Employer,
 
                                               D E C I S I 0 N
 
         and
 
         
 
         SENTRY INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Cathy Ray, 
 
         claimant, against Dubuque Packing Company, employer (hereinafter 
 
         referred to as Dubuque Pack), and Sentry Insurance Company, 
 
         insurance carrier, defendants, for workers' compensation benefits 
 
         as a result of an alleged injury on April 8, 1985.  On January 
 
         25, 1990, a hearing was held on claimant's petition and the 
 
         matter was considered fully submitted at the close of this 
 
         hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony and written exhibits were received during the hearing 
 
         from the parties.  The exhibits offered into the evidence are 
 
         listed in the prehearing report.
 
         
 
              Excluded from consideration, after its receipt into 
 
         evidence, was a report from Horst Blume, M.D., exhibit 21.  This 
 
         report was not signed by the doctor but by his secretary with a 
 
         stamped notation that this was to hasten  the process of 
 
         forwarding the report to the attorney.  The record of this case 
 
         should not be cluttered with medical reports that have been 
 
         executed by the secretaries of doctors.  If the doctor does not 
 
         have time to sign his own reports, he should not submit one.
 
         
 
         
 
         
 
         RAY V. DUBUQUE PACKING CO.
 
         Page 2
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
         
 
              1. An employee-employer relationship existed between 
 
         claimant and Dubuque Pack at the time of the alleged injury.
 
         
 
              2. Claimant is not seeking temporary total disability or 
 
         healing period benefits in this proceeding.
 
         
 
              3. If the injury is found to have caused permanent 
 
         disability, the type of disability is an industrial disability to 
 
         the body as a whole.
 
         
 
              4. Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits from this proceeding shall be 
 
         $217.27.
 
         
 
              5. The medical bills submitted by claimant at hearing were 
 
         fair and reasonable and casually connected to the medical 
 
         condition upon which the claim is based but the issue of the 
 
         casual connection of this condition to the work injury remained 
 
         at issue.
 
         
 
                                      ISSUES
 
         
 
              The parties have submitted the following issues for 
 
         determination in this proceeding:
 
         
 
              I. Whether claimant received an injury arising out of and 
 
         in the course of employment;
 
         
 
              II. Whether there is a casual relationship between the work 
 
         injury and the claimed disability;
 
         
 
              III. The extent of claimant's entitlement to weekly 
 
         benefits for disability; and,
 
         
 
              IV. The extent of claimant's entitlement to medical 
 
         benefits.
 
         
 
              An issue of entitlement to reimbursement for an independent 
 
         examination under Iowa Code section 85.39 was withdrawn at 
 
         hearing due to defendants' agreement to pay for the exam in 
 
         question.
 
         
 
                              STATEMENT OF THE FACTS
 
         
 
              The following is a brief statement highlighting some of the 
 
         more pertinent evidence presented.  Whether or not specifically 
 
         referred to in this statement, all of the evidence received at 
 
         the hearing was independently reviewed and
 
         
 
         
 
         
 
         RAY V. DUBUQUE PACKING CO.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 3
 
         
 
         
 
         considered in arriving at this decision.  Any conclusions about 
 
         the evidence received contained in the following statement shall 
 
         be viewed as preliminary findings of fact.
 
         
 
              Claimant testified that she worked for Dubuque Pack as a 
 
         meat packer almost 11-years starting when she was only 18.  
 
         Claimant's only prior work history has been as a fry cook for a 
 
         few months during and after high school.                Claimant 
 
         said that she worked on the production line butchering 35 to 40 
 
         head of cattle an hour.  Claimant said that much of her work at 
 
         Dubuque Pack involved use of a knife in various trimming 
 
         activities.
 
         
 
              Claimant seeks workers' compensation benefits for a work 
 
         injury to her right shoulder, neck and upper back from repetitive 
 
         use of her arms and hands and shoulders.  Claimant said that she 
 
         reported shoulder problems to her foreman in April of 1985 and 
 
         her problems with her shoulders and neck continued from that 
 
         point in time.  Claimant did not testify as to any specific event 
 
         of injury in April of 1985.  Since that time, claimant has 
 
         received extensive treatment and evaluation of her arm, shoulder 
 
         and back difficulties.  M. T. O'Neil, M.D., an orthopedic 
 
         surgeon, treated claimant upon a diagnoses of synovitis and 
 
         tenosynovitis of both shoulders with the worse symptoms presented 
 
         on the right.  Dr. O'Neil also noted neck pain complaints.  After 
 
         conservative treatment failed to alleviate claimant's symptoms, 
 
         Dr. O'Neil suggested claimant quit her job at the packinghouse or 
 
         tolerate the pain.  His associate, William Hamsa, M.D., also 
 
         diagnosed the same condition which he termed as a form of 
 
         "overuse syndrome" caused by claimant's employment.  He likewise 
 
         recommended that claimant either tolerate the pain or leave her 
 
         employment.
 
         
 
              In November 1986, claimant said that she was placed on 
 
         lighter duty performing janitor work but claimant said that this 
 
         was still heavy work and it bothered her shoulders.  The union 
 
         steward testified on behalf of claimant and reaffirmed claimant's 
 
         testimony as to the difficulty of such work which required heavy 
 
         lifting at times and repetitive use of claimant's hands and arms 
 
         in the cleaning and scrubbing of floors and other fixtures.          
 
         Claimant finally took the advise of her physician and quit her 
 
         job at Dubuque Pack on April 27, 1987.
 
         
 
              Medical records indicate that claimant had problems with 
 
         carpal tunnel syndrome and trigger finger beginning in 1978.  
 
         These problems were treated by surgical release of the tendons 
 
         involved.  Claimant has had a problem with hand and wrist pain 
 
         off and on since that time.  Claimant has
 
         
 
         
 
         
 
         RAY V. DUBUQUE PACKING CO.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 4
 
         
 
         
 
         reported shoulder path since April 1983.  The diagnoses at that 
 
         time was tendonitis of the shoulder and elbow joints.
 
         
 
              Two chiropractors have submitted evaluation reports 
 
         concluding that claimant has chronic cervical strain; shoulder 
 
         strain and chronic pain syndrome.  One chiropractor casually 
 
         relates the problems to the April 1985 injury.  It is not clear 
 
         what event in April of 1985 to which the chiropractor was 
 
         referring.
 
         
 
              R. M. Mason, M.D., specialty unknown, also casually relates 
 
         claimant's hand, shoulder and neck problems to her work at 
 
         Dubuque Pack including the janitorial duties.
 
         
 
              Physicians at the University of Iowa Hospitals and Clinics 
 
         evaluated claimant and concluded that she has cervical symptoms 
 
         of unknown etiology.
 
         
 
              Two neurosurgeons, Clifford Danneel, M.D. and Joel Cotton, 
 
         M.D., examined and tested claimant on two  separate occasions.  
 
         Neither physicians found any neurological problems or injuries.  
 
         Both felt that claimant should return to work from a neurological 
 
         standpoint.
 
         
 
              Claimant is 32 years of age and dropped out of high school 
 
         before receiving her diploma.  However, in 1987 she earned her 
 
         GED.  Claimant's only employment since leaving Dubuque Pack has 
 
         been as a part-time dishwasher and cook.  Claimant was evaluated 
 
         by the state vocational rehabilitation unit.     From their 
 
         testing, they had no vocational recommendations due to her low 
 
         intellectual functioning and extensive disability to her hands 
 
         and arms.        Claimant also was evaluated by Sandi Rollison, 
 
         DVR, a vocational evaluator.    She recommends vocational 
 
         counseling but feels that vocational training in a classroom 
 
         setting would be difficult for claimant.  Her suggestions of 
 
         retraining are limited to on-the-job training.  She feels that 
 
         claimant does have potential in various medium and light duty 
 
         jobs.  However, Rollison did not provide an assessment as to the 
 
         availability of these jobs in the area of claimant's residence 
 
         nor did she discuss the respective income potential of these jobs 
 
         as compared to her job at Dubuque Pack.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Note:  A credibility finding is necessary to this decision 
 
         as defendants  place claimant's credibility at issue during 
 
         cross-examination as to the  nature and extent of the injury and 
 
         disability.  From her demeanor while  testifying, claimant will 
 
         be found credible.
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         RAY V. DUBUQUE PACKING CO.
 
         Page 5
 
         
 
         
 
              I.  Claimant has the burden of proving by a preponderance 
 
         of the evidence that claimant received an injury which arose out 
 
         of, and in the course of employment.  The words "out of" refer to 
 
         the cause or source of the injury.  The words "in the course of" 
 
         refer to the time and place and circumstances of the injury.  
 
         See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 
 
         1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).  An employer takes an employee subject to any 
 
         active or dormant health impairments, and a work connected injury 
 
         which more than slightly aggravates the condition is considered 
 
         to be a personal injury.   Ziegler v. United States Gypsum Co., 
 
         252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited therein.
 
         
 
              It is not necessary that claimant prove her disability 
 
         results from a sudden unexpected traumatic event.  It is 
 
         sufficient to show that the disability developed gradually or 
 
         progressively from a work injury 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 gradual 
 
         injury cases is a time when pain prevents the employee from 
 
         continuing to work.
 
         
 
              First, it is clear that nothing specific or unusual 
 
         happened in April 1985.  Claimant had a long-standing problem 
 
         with her arms, shoulders and neck.  The views of the treating 
 
         orthopedic surgeons, Drs. O'Neil and Hamsa, are given the greater 
 
         weight.  Claimant is suffering from overuse syndrome of her arms, 
 
         shoulders and neck which has developed gradually over time from 
 
         her repetitive work at Dubuque Pack.  This condition progressed 
 
         to the point that her pain finally compelled her to leave her 
 
         job.  Claimant has suffered cumulative or gradual injury.
 
         
 
              Second, with reference to the injury date for this gradual 
 
         injury, the undersigned may choose a more appropriate injury date 
 
         in an accumulative trauma case different than the one alleged.  
 
         McCoy v. Donaldson Company, Inc.  case number 752670, appeal 
 
         decision filed April 28, 1989.  In the case at bar, claimant left 
 
         her employment on April 27, 1987.  This appears to be the most 
 
         appropriate date for her gradual injury under the guidelines of 
 
         McKeever.
 
         
 
              II.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and  lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         RAY V. DUBUQUE PACKING CO.
 
         Page 6
 
         
 
         
 
         permanent disability invokes an initial determination of whether 
 
         the work injury was a cause of permanent physical impairment or 
 
         permanent limitation in work activity.  However, in some 
 
         instances, such as a job transfer caused by a work injury, 
 
         permanent disability benefits can be awarded without a showing of 
 
         a casual connection to a physical change of condition.  
 
         Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 
 
         1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
         
 
              The question of casual connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient along to support a finding of casual connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award. Giere v. Asse 
 
         Haugen Homes. Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).  
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.      Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 
 
         (Iowa 1974) . To establish compensability, the injury need only 
 
         be a significant factor, not be the only factor causing the 
 
         claimed disability.  Blacksmith, 290 N.W.2d 348, 354.     In the 
 
         case of a preexisting condition, an employee is not entitled to 
 
         recover for the results of a preexisting injury or disease but 
 
         can recover for an aggravation thereof which resulted in the 
 
         disability found to exist.  Olson v. Goodyear Service Stores, 255 
 
         Iowa 1112, 125 N.W.2d 251 (1963).
 
         
 
              In the case sub judice, claimant has not offered evidence 
 
         of any permanent partial impairment rating by a physician.  
 
         Claimant asks the undersigned in the prehearing report  to use 
 
         the AMA Guides to arrive at such a rating.  This would be 
 
         improper.  First, the AMA Guides are not in evidence.   However, 
 
         even if they were, such guidelines are to be used  by licensed 
 
         physicians, not lay persons, in arriving at impairment ratings.  
 
         The undersigned is not a licensed physician.
 
         
 
         
 
         
 
         RAY V. DUBUQUE PACKING CO.
 
         Page 7
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              However, an impairment rating is not necessary to arrive at 
 
         a finding of permanent disability under the theory of 
 
         Blacksmith, set forth above when the injury has compelled a job 
 
         transfer or, a loss of a job.  It is clear that claimant was 
 
         compelled by her gradual work injury, the chronic overuse 
 
         syndromes, to leave her employment.  Therefore, claimant has 
 
         suffered permanent disability to the extent which will be 
 
         discussed below.  As the injury is to the shoulders, there is 
 
         disability to the body as a whole.
 
         
 
              Claimant must establish by a preponderance of the evidence 
 
         the extent of weekly benefits for permanent disability to which 
 
         claimant is entitled.        As the claimant has shown that the 
 
         work injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co. , 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors.  These factors include the employee's medical condition 
 
         prior to the injury, immediately after the injury and presently; 
 
         the situs of the injury, its severity and the length of healing 
 
         period; the work experience of the employee prior to the injury, 
 
         after the injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  See 
 
         Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 
         28, 1985).
 
         
 
              Claimant's medical condition before her problems began in 
 
         1983 was excellent and she had no prior ascertainable 
 
         disabilities.  Claimant's treating physician, Dr. O'Neil, has 
 
         suggested that she refrain from any strenuous, repetitive work 
 
         with her hands and arms and to leave her employment at Dubuque 
 
         Pack.  Claimant's medical condition prevents her from working at 
 
         Dubuque Pack or performing any other
 
         
 
         
 
         
 
         RAY V. DUBUQUE PACKING CO.
 
         Page 8
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         employment in which heavy or medium manual labor is involved.  
 
         This is the type of work for which she is best, suited given her 
 
         lack of education, intellectual skills and limited work 
 
         experiences.
 
         
 
              Apart from her lost earnings during her healing period 
 
         which was compensated by healing period benefits, claimant has 
 
         suffered a significant permanent loss in actual earnings as 
 
         a.result of her disability and an inability to return to gainful 
 
         employment.
 
         
 
              The so-called odd-lot doctrine was not pled and therefore 
 
         could not be applied to the facts of this case.
 
         
 
              Claimant is 32 years of age and is relatively, young which 
 
         is encouraging from a rehabilitation standpoint.  However, 
 
         claimant's lack of educational skills appear to be a clear 
 
         obstacle at the present time to any semi-skilled labor job or 
 
         clerical work.
 
         
 
              The currently available vocational assessments of claimant 
 
         are quite limited and little could be concluded from them.  
 
         Claimant has not shown that some sort of light duty work is not 
 
         available to her albeit such work is probably at much lower pay 
 
         than at Dubuque Pack.
 
         
 
              After examination of all the factors, it is found as a 
 
         matter of fact that claimant has suffered a 60 percent loss of 
 
         her earning capacity from her work injury.  Based upon such a 
 
         finding, claimant is entitled as a matter of law to 300 weeks of 
 
         permanent partial disability benefits under Iowa Code section 
 
         85.34(2)(u) which is 60 percent of 500 weeks, the maximum 
 
         allowable number of weeks for an injury to the body as a whole in 
 
         that subsection.  Benefits will be awarded from the date of 
 
         injury.
 
         
 
              IV.  Pursuant to Iowa Code section 85.27, claimant is 
 
         entitled to payment of reasonable medical expenses incurred for 
 
         treatment of a work injury.  From the parties' stipulations as to 
 
         the reasonableness and casual connection of the condition in 
 
         question in this case, claimant will be awarded those requested 
 
         expenses without further inquiry.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1. Claimant was a credible witness.  Claimant's appearance 
 
         while testifying indicated that she was testifying truthfully.
 
         
 
              2. On April 27, 1987, claimant suffered an injury to the 
 
         shoulders and neck which arose out of and in the course
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         RAY V. DUBUQUE PACKING CO.
 
         Page 9
 
         
 
         
 
         of employment with Dubuque Pack.  The injury is chronic synovitis 
 
         and tendonitis which developed gradually over a number of years 
 
         from repetitive heavy work at Dubuque Pack as a meat packer.  
 
         Claimant was finally compelled by her pain as a result of this 
 
         condition on April 27, 1987, to permanently leave her employment 
 
         at Dubuque Pack.
 
         
 
              3. The work injury of April 27, 1987, is a cause of 
 
         permanent disability.  Although there is no ascertainable 
 
         functional impairment, claimant is unable to return to work as a 
 
         meat cutter or any other heavy or medium heavy repetitive 
 
         strenuous work due to her work injury and chronic synovitis and 
 
         tendonitis condition.  Claimant had no such disability prior to 
 
         April 27, 1987, and she was always able to return to work after 
 
         brief periods of rest and recovery and medical treatment.
 
         
 
              4. The work injury of April 27, 1987, is a cause of a 60 
 
         percent loss of earning capacity.  Claimant is 32 years of age 
 
         and has a GED.  However, claimant's intellectual functioning is 
 
         low and she has few educational skills.  Claimant has no 
 
         ascertainable loss of earning capacity prior to the work injury.  
 
         Claimant's physician imposed activity restrictions prevent a 
 
         return to work to all manual labor jobs that she has held in the 
 
         past.       Claimant's employment in manual labor occupations is 
 
         the type of occupation for which she is best suited given her 
 
         work history and lack of formal education.   Claimant appears to 
 
         have low potential for vocational rehabilitation.  Claimant is 
 
         able to function in light to medium jobs, the availability of 
 
         which is unknown at the present time.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established under law entitlement to 300 weeks 
 
         of permanent partial disability benefits and to medical benefits 
 
         set forth in the prehearing report.
 
         
 
                                      ORDER
 
         
 
              1. Defendants shall pay to claimant three hundred (300) 
 
         weeks of permanent partial disability benefits at the rate of two 
 
         hundred seventeen and 27 100 dollars ($217.27) per week from 
 
         April 27, 1987.
 
         
 
              2. Defendants shall pay the medical expenses listed in the 
 
         prehearing report, exhibits 33 through 36.  Claimant shall be 
 
         reimbursed for any of these expenses paid by him.  Otherwise, 
 
         defendants shall pay the provider directly along with any lawful 
 
         late payment penalties imposed upon the unpaid account by the 
 
         provider.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         RAY V. DUBUQUE PACKING CO.
 
         Page 10
 
         
 
         
 
              3. Defendants shall pay the accrued weekly benefits in a 
 
         lump sum.
 
         
 
              4. Defendants shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              5. Defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              6. Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
         
 
              Signed and filed this 15th day of May, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                               LARRY P. WALSHIRE
 
                                               DEPUTY INDUSTRIAL 
 
         COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Harry H. Smith
 
         Attorney at Law
 
         632-640 Badgerow Bldg
 
         P 0 Box 1194
 
         Sioux City  IA  51102
 
         
 
         Mr. Paul W. Deck, Jr.
 
         Attorney at Law
 
         635 Frances Bldg
 
         Sioux City IA  51101
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                               5-1803
 
                                               Filed May 15, 1990
 
                                               LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CATHY RAY,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 File No. 837615
 
         DUBUQUE PACKING CO.,
 
                                              A R B I T R A T I 0 N
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         SENTRY INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
         
 
         5-1803 - Nonprecedential
 
         
 
              Extent of permanent partial disability benefits.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            BARBARA E. BRYSON,  :
 
                      :
 
                 Claimant, :      File No. 837619
 
                      :
 
            vs.       :        A P P E A L
 
                      :
 
            JOHN DEERE DUBUQUE WORKS :      D E C I S I O N
 
            OF DEERE & COMPANY, :
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ___________________________________________________________
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed April 13, 1990 is affirmed and is adopted as the final 
 
            agency action in this case. 
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of September, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                           INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Patrick Tallon
 
            Attorney at Law
 
            919A West 55th St.
 
            Countryside, IL  60525
 
            
 
            Mr. Leo A. McCarthy
 
            Attorney at Law
 
            222 Fischer Bldg.
 
            P.O. Box 239
 
            Dubuque, Iowa 52004-0239
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed September 12, 1991
 
            Byron K. Orton
 
            LPW
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            BARBARA E. BRYSON,  :
 
                      :
 
                 Claimant, :      File No. 837619
 
                      :
 
            vs.       :        A P P E A L
 
                      :
 
            JOHN DEERE DUBUQUE WORKS :      D E C I S I O N
 
            OF DEERE & COMPANY, :
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed April 13, 
 
            1990.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BARBARA E. BRYSON,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :        File No. 837619
 
            JOHN DEERE DUBUQUE WORKS OF   :
 
            DEERE & COMPANY,              :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Barbara 
 
            E. Bryson, claimant, against Deere & Company, a self-insured 
 
            employer (hereinafter referred to as Deere), defendant, for 
 
            workers' compensation benefits as a result of an alleged 
 
            injury on July 3, l986.  On September 13, l989, a hearing 
 
            was held on claimant's petition and the matter was consid
 
            ered fully submitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  Oral testimony and written exhibits were received 
 
            during the hearing from the parties.  The exhibits offered 
 
            into the evidence are listed in the prehearing report.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  On July 3, 1986, claimant received an injury which 
 
            arose out of and in the course of her employment with Deere.
 
            
 
                 2.  Claimant is seeking additional temporary total dis
 
            ability or healing period benefits from February 6, 1987 
 
            through June 8, 1988.  It was agreed that claimant was paid 
 
            temporary total disability from July 15, l986 through August 
 
            2, 1986.
 
            
 
                 3.  With reference to claimant's rate of weekly compen
 
            sation, it was agreed that claimant was married and entitled 
 
            to two exemptions at the time of the alleged injury.
 
            
 
                 4.  All requested medical benefits have been or will be 
 
            paid by the defendant.
 
            
 
                                      issues
 
            
 
                 The parties have submitted the following issues for 
 
            determination in this proceeding:
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
                   I.  Whether claimant's petition is timely filed under 
 
            Iowa Code section 85.26 and whether claimant gave timely 
 
            notice of her claim to the employer under Iowa Code section 
 
            85.23.
 
            
 
                  II.  Whether there is a causal relationship between 
 
            the work injury and the claimed disability; and,
 
            
 
                 III.  The extent of claimant's entitlement to weekly 
 
            benefits for disability.
 
            
 
                              statement of the facts
 
            
 
                 The following is a brief statement highlighting some of 
 
            the more pertinent evidence presented.  Whether or not 
 
            specifically referred to in this statement, all of the evi
 
            dence received at the hearing was independently reviewed and 
 
            considered in arriving at this decision.  Any conclusions 
 
            about the evidence received contained in the following 
 
            statement shall be viewed as preliminary findings of fact.
 
            
 
                 Claimant worked for Deere from 1972 until February 5, 
 
            1987, at which time she was terminated by Deere due to phys
 
            ical incapacity.  At the time of the work injury herein, 
 
            claimant's job title at Deere was machine oiler.  Claimant 
 
            stated that in this job she would go about the plant oiling 
 
            and greasing machines, pushing a cart loaded with her oil 
 
            and grease supplies.  Claimant was terminated on February 5, 
 
            1987, soon after her return from a plant wide union strike 
 
            when the company doctor, Mervin McClenahan, M.D., imposed 
 
            permanent restrictions on her work activity consisting of no 
 
            squatting, kneeling, climbing or prolonged standing or 
 
            walking.
 
            
 
                 Claimant testified that while going down metal steps in 
 
            the plant on July 3, 1986, she slipped on some grease or oil 
 
            and fell, striking her knee on the stair grating.  She said 
 
            that her right knee began to hurt and that it felt like 
 
            something had struck her in the knee with a knife.  Claimant 
 
            said that she sat down for a few minutes and then reported 
 
            the incident to her foreman who referred her to the plant 
 
            nurse.  Although claimant said that she reported the slip 
 
            and fall to the nurse, plant medical records indicate only 
 
            that claimant complained of pain in her knee and she was 
 
            referred to her orthopedic surgeon Gerald L. Meester, M.D.  
 
            Claimant also had been given at that time a throat lozenge 
 
            for a cold by the plant nurse.
 
            
 
                 Dr. Meester did report a history of a slip in his 
 
            office notes of July 14, 1986, which had allegedly occurred 
 
            a week prior.  However, his office notes indicate only that 
 
            claimant did not actually fall but only held onto a railing 
 
            to avoid a fall and twisted her knee.  At this time, 
 
            claimant also complained of right ankle pain which Dr. 
 
            Meester attributed to the way she was walking to avoid right 
 
            knee strain.
 
            
 
                 Dr. Meester treated claimant with physical therapy, 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            range of motion, exercises and removal from her work for a 
 
            few weeks.  He released claimant to return to work on August 
 
            4, 1986, however, claimant only worked a few days before 
 
            going on the plant wide strike.  This strike lasted until 
 
            February 2, 1987.  After the July 3, 1986 injury, claimant's 
 
            work was primarily that of operating a fork lift truck which 
 
            did not violate the various temporary restrictions imposed 
 
            by the plant physician with reference to her knee.
 
            
 
                 Dr. Meester had treated claimant off and on for pro
 
            gressive arthritis of the right knee and ankle since her 
 
            fall from a piece of equipment at Deere in 1975.  In January 
 
            1979, Dr. Meester rated claimant as suffering from a 24 per
 
            cent permanent partial impairment to the lower leg as a 
 
            result of this condition.  In 1985, he performed arthro
 
            scopic surgery following an incident of knee pain.  Dr. 
 
            Meester said that he had no indication of the cause for 
 
            claimant's difficulties at that time other than the original 
 
            injury in 1975.  He stated that claimant's extreme obesity 
 
            over the years has been a significant contributing factor to 
 
            her arthritic knee problems.  Dr. Meester testified in his 
 
            deposition as follows:
 
            
 
                 A.  I'm not sure that I know all of the other mit
 
                 igating circumstances that may be present.  I know 
 
                 that Barb has fallen several times both on and off 
 
                 work, she has injured this knee, injured her 
 
                 ankle, and as a result of these injuries and 
 
                 trauma to these joints, I think that the knee and 
 
                 the ankle have gone on to form degenerative 
 
                 arthritis.
 
            
 
                 Dr. Meester also stated that he could not give an opin
 
            ion whether claimant's overall condition was altered by the 
 
            July 3, 1986 injury in that he made no comparison between 
 
            her condition before and after.  He also stated that he did 
 
            not find this injury to be a precipitating event causing the 
 
            worsening of claimant's condition in the latter part of 
 
            1986, this worsened condition led to a total knee replace
 
            ment on February 12, 1987, and a surgery in which there was 
 
            an excision of the sesamoid bone in October of 1987.  Dr. 
 
            Meester states that at the time of surgery claimant's condi
 
            tion had simply worsened to a point where she could no 
 
            longer tolerate the pain.  Dr. Meester stated that claimant 
 
            is now unable to return to factory work and rates claimant 
 
            as suffering from a 50 percent permanent partial impairment 
 
            to the leg due to her knee problems and a 50 percent perma
 
            nent partial impairment to her foot as a result of ankle 
 
            problems.
 
            
 
                 Dr. McClenahan, the company doctor, also testified that 
 
            claimant is unable to return to work in any capacity not 
 
            only due to her knee and ankle problems but due to her bor
 
            derline diabetes, vascular disease and exogenous obesity.  
 
            Claimant weighs between 275 and 300 pounds and has weighed 
 
            this much for a number of years.  Dr. McClenahan opined that 
 
            the slip and grab incident on July 3, 1986, could have 
 
            aggravated claimant's prior existing knee condition.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Barry Lake Fischer, M.D., also gave testimony by depo
 
            sition as to claimant's difficulties.  He stated that she 
 
            suffers from a 55 to 60 percent loss of use of her right leg 
 
            due to her knee problems which he testified was caused by 
 
            "the accident."  Claimant reported two accidents at work.  
 
            One in March of 1985 and another on July 3, 1986.  
 
            Unfortunately, Dr. Fischer never identified which accident 
 
            to which he was referring to in his causal connection 
 
            opinion.
 
            
 
                           applicable law and analysis
 
            
 
                 Note:  A credibility finding is necessary to this deci
 
            sion as defendant places claimant's credibility at issue 
 
            during cross-examination as to the nature and extent of dis
 
            ability.  From her demeanor while testifying, claimant will 
 
            be found credible.
 
            
 
                   I.  Defendant asserts two affirmative defenses, time
 
            liness under the two year statute of limitations provided 
 
            for in Iowa Code section 85.26 and a lack of a 90 day notice 
 
            of injury under Iowa Code section 85.23.  Neither of these 
 
            defenses were established by the defendant.  Claimant's 
 
            petition was filed on December 15, 1986, well within the two 
 
            year period following the stipulated injury date of July 3, 
 
            1986.  Also, claimant's credible testimony established that 
 
            she immediately reported the injury to her foreman.  Also, 
 
            claimant's account of the injury was given to Dr. Meester on 
 
            July 14, 1986, a duly authorized physician for Deere who 
 
            forwarded a copy of this report to Deere within the 90 day 
 
            period.
 
            
 
                  II.  The claimant has the burden of proving by a pre
 
            ponderance of the evidence that the work injury is a cause 
 
            of the claimed disability.  A disability may be either tem
 
            porary or permanent.  In the case of a claim for temporary 
 
            disability, the claimant must establish that the work injury 
 
            was a cause of absence from work and lost earnings during a 
 
            period of recovery from the injury.  Generally, a claim of 
 
            permanent disability invokes an initial determination of 
 
            whether the work injury was a cause of permanent physical 
 
            impairment or permanent limitation in work activity.  
 
            However, in some instances, such as a job transfer caused by 
 
            a work injury, permanent disability benefits can be awarded 
 
            without a showing of a causal connection to a physical 
 
            change of condition.  Blacksmith v. All-American, Inc., 290 
 
            N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
            288 N.W.2d 181 (Iowa 1980).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert medical opinion.  Bradshaw v. Iowa 
 
            Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  
 
            The opinion of experts need not be couched in definite, pos
 
            itive or unequivocal language and the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 
 
            1974).  The weight to be given to such an opinion is for the 
 
            finder of fact, and that may be affected by the completeness 
 
            of the premise given the expert and other surrounding cir
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            cumstances.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).
 
            
 
                 The fighting issue in this case is the causal connec
 
            tion of claimant's permanent knee impairment to the incident 
 
            of July 3, 1986.  On this issue, claimant has little support 
 
            from the experts.  When we have prior existing conditions as 
 
            is the case for claimant, this agency must heavily rely upon 
 
            the opinions of experts.  Dr. Meester is quite noncommittal 
 
            in his deposition testimony.  Dr. McClenahan definitely 
 
            rules out this injury as a major contributing factor.  Dr. 
 
            Fischer failed to clarify his views, even if his views had 
 
            been given the same weight as Dr. Meester, a specialist in 
 
            orthopedic surgery.  Claimant simply has had a long standing 
 
            medical problem and has failed to show by a preponderance of 
 
            the evidence that the July 3, 1986 incident had any way 
 
            accelerated, lighted up or worsened his degenerative condi
 
            tion.  It is probably true that the degenerative condition 
 
            is work related to the original 1975 injury but this fact 
 
            has no bearing on the issues in this case.
 
            
 
                 With reference to the claim for additional temporary 
 
            total disability benefits, claimant was released to return 
 
            to work and did so on August 4, 1986.  Dr. Meester did not 
 
            attribute the worsening of claimant's condition after that 
 
            time to the July 3, 1986 incident.  Claimant has been paid 
 
            through August 2, 1986.  Claimant is not entitled to further 
 
            weekly benefits.
 
            
 
                 With reference to the rate of compensation, claimant 
 
            argues in her brief for a rate of $299.00 a week.  According 
 
            to the prehearing report she has been paid her entitlement 
 
            to temporary total disability at the rate of $299.00 per 
 
            week.  The issue appears moot and no further ruling is 
 
            necessary.
 
            
 
                 Although claimant lost in this proceeding, she appeared 
 
            to be sincere in her claim and will be awarded costs.  
 
            However, a specific taxation of costs cannot be given at 
 
            this time because claimant has not shown actual payment of 
 
            the costs which is a necessary requirement under the rules 
 
            before taxation.
 
            
 
                                 findings of fact
 
            
 
                 1.  Claimant was a credible witness.  Claimant's 
 
            appearance while testifying indicated she was testifying 
 
            truthfully.
 
            
 
                 2.  The work injury of July 3, 1986, was a cause of a 
 
            period of temporary total disability from work beginning on 
 
            July 15, 1986 and ending on August 2, 1986.  At the time of 
 
            injury, claimant aggravated a long standing progressive 
 
            arthritis condition of her right knee and ankle caused sub
 
            stantially in part by a work injury in 1975.  During the 
 
            time off work following the July 3, 1986 injury, claimant 
 
            received treatment of her work injury consisting of limita
 
            tions on activity, medications, home exercises and super
 
            vised physical therapy.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
                 3.  Claimant failed to show by a preponderance of the 
 
            evidence that the work injury of July 3, 1986, worsened, 
 
            accelerated or lighted up the progressive arthritis condi
 
            tion of claimant's right knee and ankle which ultimately 
 
            lead to a complete knee replacement in February 1987 and an 
 
            excision of the sesamoid bone in October 1987.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has failed to show entitlement to further 
 
            weekly benefits.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            order
 
            
 
                 1.  Claimant's petition herein is dismissed.
 
            
 
                 2.  Defendant shall pay the costs of this action pur
 
            suant to Division of Industrial Services Rule 343-4.33.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of April, 1990.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Patrick Tallon
 
            Attorney at Law
 
            633 South La Grange Road
 
            La Grange  IL  60525-6724
 
            
 
            Mr. Leo A. McCarthy
 
            Attorney at Law
 
            222 Fischer Bldg
 
            P O Box 239
 
            Dubuque  IA  52004-0239
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1803
 
                                               Filed April 13, 1990
 
                                               LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BARBARA E. BRYSON,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :        File No. 837619
 
            JOHN DEERE DUBUQUE WORKS OF   :
 
            DEERE & COMPANY,              :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            5-1803 - Permanent disability issue
 
            
 
                 Benefits were denied for failure to prove by the 
 
            greater weight of evidence that claimant suffered permanent 
 
            partial disability as a result of the injury.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            THOMAS G. SMITH,              :
 
                                          :
 
                 Claimant,                :      File No. 837625
 
                                          :
 
            vs.                           :        A P P E A L
 
                                          :
 
            FDL FOODS, INC.,              :      D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            is affirmed and is adopted as the final agency action in 
 
            this case.
 
            Signed and filed this ____ day of April, 1990.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                             DAVID E. LINQUIST
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Stephen J. Juergens
 
            Attorney at Law
 
            200 Security Building
 
            Dubuque, Iowa 52001
 
            
 
            Mr. James M. Heckmann
 
            Attorney at Law
 
            One CyCare Plaza, Ste. 216
 
            Dubuque, Iowa 52001
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-9998
 
                                          Filed April 18, 1990
 
                                          DAVID E. LINQUIST
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            THOMAS G. SMITH,              :
 
                                          :
 
                 Claimant,                :      File No. 837625
 
                                          :
 
            vs.                           :        A P P E A L
 
                                          :
 
            FDL FOODS, INC.,              :      D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-9998
 
            
 
            Deputy's decision summarily affirmed on appeal.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         THOMAS G. SMITH,                             File No. 837625
 
         
 
              Claimant,                            A R B I T R A T I O N
 
         
 
         vs.                                          D E C I S I O N
 
         
 
         FDL FOODS, INC.                                 F I L E D
 
         
 
              Employer,                                 SEP 27 1989
 
              Self-Insured,
 
              Defendant.                            INDUSTRIAL SERVICES
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Thomas G. Smith, against his self-insured employer, FDL Foods, 
 
         Inc., to recover benefits under the Iowa Workers' Compensation 
 
         Act as the result of an injury allegedly sustained on January 3, 
 
         1986. This matter came on for hearing before the undersigned 
 
         deputy industrial commissioner at Dubuque, Iowa, on July 7, 1989.  
 
         A first report of injury was filed on January 22, 1987.  No 
 
         benefits have been paid claimant.
 
         
 
              The record in this proceeding consists of the testimony of 
 
         claimant as well as of claimant's exhibit 1 through 24 as 
 
         identified in claimant's exhibit list and defendant's exhibits A 
 
         through K as identified in defendant's exhibit list.  Both 
 
         parties submitted briefs.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report and the oral stipulations 
 
         of the parties at hearing, the parties stipulated:  That 
 
         claimant's rate of weekly compensation in the event of an award 
 
         is $97.05; that the provider of medical services would testify 
 
         that the fees for such services were reasonable and that no 
 
         contrary evidence would be offered; and, that the treatment 
 
         rendered claimant was reasonable and necessary treatment for the 
 
         condition treated.  The weekly rate of $97.05 was apparently 
 
         derived from the July 1, 1986 rate book.  Claimant's injury 
 
         occurred in January 1986.  The July 1, 1985 rate book is the 
 
         appropriate rate book. Therefore, the appropriate rate is $96.91 
 
         and any benefits due shall be paid at that rate.
 
         
 
              Issues remaining to be decided are:  (1) whether claimant 
 
         received an injury which arose out of and in the course of his 
 
         employment; (2) whether a causal relationship exists between the 
 
         alleged injury and claimed disability; (3) the nature and extent 
 
         of any disability resulting from the alleged injury; (4)    
 
         whether claimant gave his employer appropriate notice of his 
 
         alleged injury as required by section 85.23; (5) whether 
 
         claimant's claim is barred as filed beyond the applicable 
 
         limitations; and (6) whether claimant is entitled to payment of 
 
         certain medical costs pursuant to section 85.27.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The parties sought to amend the hearing assignment order to 
 
         include the issue of claimant's entitlement to medical benefits. 
 
         Both parties were prepared to try the issue.  The undersigned 
 
         granted the parties' requested amendment pursuant to her 
 
         authority as prehearing deputy.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant is 39 years old, single and has completed ninth 
 
         grade.  In addition to his work in the employer's meat processing 
 
         plant, claimant has worked as an unskilled laborer on railroads 
 
         and in foundries.  He has also done semi-skilled work as a mill 
 
         worker and painter.  Claimant began work with FDL Foods, Inc., in 
 
         early 1984 working approximately 4-5 hours daily pulling loins in 
 
         the hog cut.  Claimant submitted to and passed a preemployment 
 
         physical.  Claimant was suspended for work missed on account of 
 
         drinking problems in April 1984, March 1985, April 1985, and May 
 
         1985.  Claimant received treatment for substance abuse both prior 
 
         to and subsequent to the alleged injury with FDL Foods.  Claimant 
 
         denied that he had ever been absent from work on account of back 
 
         pain prior to January, 1986 and denied having had back pain prior 
 
         to January, 1986, although he did testify that he suffered 
 
         backaches and blistered hands when he started pulling loins.
 
         
 
              On January 2, 1986 and January 3, 1986, claimant was 
 
         assigned to shovel meat throughout his workshift.  Claimant used 
 
         either a pitchfork or a scoop shovel to do so.  Claimant stated 
 
         that he did not have pain after work on either January 2, 1986 or 
 
         January 3, 1986, but that he had severe low back and left leg 
 
         pain on awakening on Saturday, January 4, 1986.
 
         
 
              Claimant advised the FDL nurse's station of his pain on 
 
         Monday, January 6, 1986.  He saw Luke Faber, M.D., on Tuesday, 
 
         January 7, 1986.  Dr. Faber apparently prescribed pain medication 
 
         and released claimant for work.  Claimant reported that Dr. Faber 
 
         did not advise him regarding seeking treatment with other 
 
         physicians.  Claimant reported that Red Rouse, identified on 
 
         defendant's exhibit K as labor relations director for FDL Foods, 
 
         advised claimant to see another physician regarding claimant's 
 
         back.  Claimant saw W. E. Johnson, M.D., who referred him to 
 
         Gerald Meister, M.D., an orthopaedic surgeon.  Dr. Meister 
 
         referred claimant to Lynn Kramer, M.D., a neurologist.  
 
         Apparently Dr. Kramer referred claimant to the Veterans 
 
         Administration Hospitals in Iowa City where claimant saw 
 
         Christopher Loftus, M.D.
 
         
 
              Claimant reported that a CT scan undertaken at the Veterans 
 
         Administration Hospital revealed a ruptured disc.  He reported 
 
         that surgical excision of the disc was not recommended.  Claimant 
 
         agreed that Veterans Administration physicians had advised him 
 
         that his low back pain was produced by hard work and overabuse.  
 
         He agreed that they never advised that his problem occurred on 
 
         the day or night before January 4, 1986.  Claimant stated that he 
 
         had shoveled meat approximately ten times prior to January 2 and 
 
         January 3, 1986, but had never before shoveled meat for two 
 
         consecutive nights.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant started his own painting business in spring, 1986. 
 
         Claimant testified that he assigned workers, ordered materials, 
 
         and checked job sites, but limited his actual painting to showing 
 
         his employees how to paint with a brush.  Claimant sold this 
 
         business in fall 1987.  Claimant subsequently worked with a 
 
         telemarketing company soliciting advertising sales.  In summer 
 
         1987, claimant attempted work as a concrete plasterer in Chicago. 
 
         Claimant reported that on that job, he threw his back out 
 
         severely after lifting cement.  He indicated that his boss had to 
 
         drive him home.
 
         
 
              Claimant is now a foreman for a roofing and painting company 
 
         in Freeport, Illinois.  Claimant reported that his current boss 
 
         knows of his problems and accommodates his need to avoid lifting. 
 
         Claimant described himself as a brush and roller man whose work 
 
         involves little stepping or bending and only occasional twisting. 
 
         Claimant receives approximately $8.00 per hour pay, but no 
 
         benefits.  He reported working seven months in summer 1988 and 
 
         returned to work with his current employer in May 1989.  Claimant 
 
         had also only worked part-time at FDL.  He earned $9.00 per hour 
 
         without benefits.  Claimant reported that he has worked for jobs 
 
         he could physically handle since his injury.  He attempted 
 
         door-to-door sales of business paper products, but had a hard 
 
         time dealing with people one-on-one.
 
         
 
              Claimant attempted a one-day work return at FDL Foods 
 
         following his injury.  Claimant could not recall why he worked 
 
         only one day and stated that FDL fired him in January 1987 
 
         without giving a reason for his termination.  Claimant could not 
 
         recall FDL having problems with the work releases claimant was 
 
         giving them.  He did not doubt, however, that he had been 
 
         instructed to bring a proper release before January 5, 1987.  
 
         Claimant later stated that he quit working because he could not 
 
         handle the work, although he had never so advised FDL.  A January 
 
         13, 1987 letter of Red Rouse, labor relations director for FDL, 
 
         reports that claimant had been absent for two consecutive working 
 
         days without notifying the company concerning such absence and 
 
         that consequently his seniority had been terminated.
 
         
 
              Claimant experienced an episode of back pain in 
 
         approximately August, 1988 when he attempted to lift an 80-pound 
 
         bag of salt for his sister's water softener.  Claimant stated he 
 
         was not able to actually lift the bag as his back "went out of 
 
         commission" before he was able to do so.  Claimant subsequently 
 
         saw Steven Perry, D.C.  Claimant testified he initially advised 
 
         Dr. Perry of the water softener incident and that after Dr. Perry 
 
         questioned him concerning prior back problems, claimant advised 
 
         Dr. Perry of his FDL injury.  Claimant stated he told Dr. Perry 
 
         he injured his back while pulling loins as that had been his job 
 
         while employed at FDL.
 
         
 
              Claimant testified that his back and left leg symptoms 
 
         following the cement lifting incident in 1987 and the salt 
 
         incident in 1988 were exactly the same and in the same physical 
 
         location as his symptoms with the alleged January 3, 1986 FDL 
 
         injury.  Claimant stated that since January, 1986, even turning 
 
         the wrong way while sleeping can throw his back out.  He reported 
 
         he gets temporary relief from chiropractic treatment, but that he 
 
         no longer takes pain medication as he believes such is too 
 
         addictive.  Claimant characterized his present symptoms as worse 
 
         than his 1986 symptoms in that he need not abuse himself so 
 
         severely before he has discomfort now.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant umpired one little league game in summer 1986.  He 
 
         was hit in the face with a baseball and received eight stitches. 
 
         Claimant did not know if a charge of June 10, 1986 with Galena 
 
         Family Medical Clinic for a hospital call related to that 
 
         baseball injury.  Claimant had earlier stated that all charges 
 
         listed as medical and related expenses in claimant's exhibit 24 
 
         related to treatment of his low back condition.  Claimant 
 
         subsequently agreed that penicillin also listed among the charges 
 
         had not been prescribed for his back injury.
 
         
 
              On January 16, 1986, W. E. Johnson, M.D., reported that 
 
         claimant was under the doctor's care for a work-related back 
 
         injury.
 
         
 
              Notes of Gerald Meister, M.D., undated but reflecting a 
 
         hospital visit of January 29, 1986, report that on examination 
 
         claimant has no strength difference, no major reflex difference, 
 
         and sensory changes that do not have a good anatomic correlation. 
 
         The doctor stated that at this point, claimant's medical course 
 
         and his findings were confusing and that the doctor was not able 
 
         to well correlate claimant's physical findings and symptom 
 
         complex.
 
         
 
              On February 11, 1986, Dr. Kramer reported that claimant had 
 
         a very slight decrease in pinprick over the lateral aspect of the 
 
         left thigh causing a bit of pins and needles sensation as well as 
 
         diminished light touch.  Claimant had a slightly diminished ankle 
 
         jerk on the left, but otherwise had symmetric reflexes, 
 
         essentially negative straight leg raising and no specific 
 
         muscular weaknesses.  Claimant's nerve conduction studies 
 
         demonstrated a right peroneal velocity of 47.  An EMG study of 
 
         the L3-S1 paraspinus on the left, the left quad, gastroc, 
 
         anterior TIB and EDB showed some changes with positive waves in 
 
         the EDB and two trains of positive waves in the L5,S1 paraspinus, 
 
         but otherwise little abnormality noted.  Dr. Kramer opined that 
 
         if claimant's history of having shoveled meat at FDL on January 
 
         3, 1986 without specific problems, but having severe lumbar pain 
 
         on awakening the next morning is correct, "then it would seem 
 
         that [claimant's condition] might be [a workers' compensation 
 
         case]."
 
         
 
              On June 5, 1986, Dr. Loftus advised that claimant had been 
 
         under care for low back pain and left sciatica and that claimant 
 
         should not return to heavy labor at that time or in the 
 
         foreseeable future.  The doctor opined that claimant had a 
 
         ruptured disc at L5-S1 which was not amenable to treatment at 
 
         that time, but which needed to be watched carefully.  The doctor 
 
         further opined that by claimant's history, the condition 
 
         developed after claimant had done heavy labor at FDL Foods.  The 
 
         doctor advised claimant to avoid resuming such duties.
 
         
 
              On December 22, 1986, P. W. Hitchon, M.D., Chief, 
 
         Neurosurgery Service at the Veterans Administration, advised that 
 
         claimant had been under his care for low back pain and sciatica 
 
         since March 27, 1986 and had been unable to work until December 
 
         22, 1986.  As of December 22, 1986, Dr. Hitchon reported that 
 
         claimant had been discharged to return to work with no 
 
         restrictions.  On January 5, 1987, W. E. Johnson, M.D., reported 
 
         that claimant had been unable to work from January 3, 1986 to 
 
         January 5, 1987, but was released to return to work on January 5, 
 
         1987.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              On September 1, 1987, Thomas Bainbridge, M.D., reported that 
 
         claimant had been treated for a back pain and sciatica and had a 
 
         history of ruptured disc at L5-S1.  He opined claimant should not 
 
         engage in strenuous activity or in heavy lifting indefinitely.
 
         
 
              On July 7, 1988, Rodney R. Zeitler, M.D., of the Veterans 
 
         Administration reported that claimant was seen in the 
 
         administration's primary care clinic on September 1, 1987 and 
 
         gave a history of five days' back pain previously having begun a 
 
         new job, which job involved lifting metal grates and cement bags.  
 
         The doctor reported that apparently after the first day at work, 
 
         all went well except that claimant was unable to get out of bed 
 
         the following day due to low back pain.  He reported that 
 
         claimant was then seen at the clinic complaining of low back pain 
 
         with radiation into the left hip.  The condition was diagnosed as 
 
         musculoskeletal strain without further diagnostic testing.  The 
 
         recommendation was that claimant take 800 mg. of Motrin three 
 
         times a day and be placed at bed rest for three days.
 
         
 
              In a workers' compensation questionnaire claimant completed 
 
         for Dr. Perry, claimant responded to a question as to how his 
 
         accident happened by stating, "Lifting 80 lbs salt.  The first 
 
         time I was working at FDL Foods pulling loins."
 
         
 
              In a report of November 18, 1988, Dr. Perry reported 
 
         claimant's history as that claimant had been shoveling meat on 
 
         the "hog-cut" at FDL after which time he immediately felt low 
 
         back and left leg pain.  Dr. Perry diagnosed claimant's 
 
         conditions as intervertebral disc syndrome, lumbalgia and lumbar 
 
         radiculitis. Dr. Perry opined that claimant had a ten percent 
 
         impairment of the whole person under the 1984 edition of the AMA 
 
         guides.  The doctor reported claimant's range of motion of the 
 
         thoracolumbar spine as flexion, 55 degrees; extension, 25 
 
         degrees; left lateral flexion, 15 degrees; and, right lateral 
 
         flexion, 2 degrees.  Dr. Perry reported claimant's prognosis as 
 
         guarded in that the potential for future exacerbation of 
 
         claimant's condition would be greatly affected by the nature of 
 
         his work.  He opined that most or all physical labor jobs would 
 
         probably act as a continual irritant to claimant's low back, 
 
         probably affecting his performance in some way.  He opined that 
 
         claimant had shown partial relief of his symptomatic state, but 
 
         that posttraumatic pathology was probable since the principal 
 
         injury was ligamentous and muscular sprain and strain to body 
 
         joints.  The doctor recommended comparative examinations 
 
         including x-rays periodically to evaluate claimant's improvement 
 
         and to determine the actual degree of posttraumatic pathology and 
 
         disability, if any.  The doctor opined that claimant's FDL 
 
         incident was the total cause of claimant's physical impairment.
 
         
 
              In a report of November 18, 1988, Dr. Perry reported 
 
         claimant's history as claimant was lifting 80 pounds of salt at 
 
         work, after which he immediately felt low back and left pain.  
 
         But for the difference in history, Dr. Perry's November 18, 1988 
 
         report is substantially identical to his other report of November 
 
         18, 1988.  Both reports contain the opinion that the "above 
 
         stated accident" is the total cause of claimant's present 
 
         physical impairment.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              A CT scan dated February 23, year uncertain, reported a 
 
         small but significant posterolateral herniated nucleus pulposus 
 
         at L5-S1 on the left.
 
         
 
              A lumbosacral CT scan of March 27, 1986 was reported as 
 
         showing no evidence of disc herniation or significant disc 
 
         bulging and no evidence of canal stenosis or significant bony 
 
         abnormality.
 
         
 
              An October 11, 1988 report of Luke C. Faber, M.D., Corporate 
 
         Director, Medical Department, FDL Foods, Inc., indicates that 
 
         claimant was examined on September 12, 1988.  The report 
 
         indicates that physical examination revealed no tenderness or 
 
         spasm; free range of motion of the lumbar spine, bending to the 
 
         floor and coming to full standing without any pain or limitation; 
 
         backward flexion and lateral flexion normal; right and left 
 
         lumbar rotation painless and at a normal range; straight leg 
 
         raising normal; knee and ankle jerks equal and symmetrical and of 
 
         good quality; and toe and heel walking normal as well as intact 
 
         sensation.
 
         
 
              Submitted medical bills and related expenses, claimant's 
 
         exhibit 24, were reviewed and will be discussed in the decision 
 
         below.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              We first address defendant's assertion that claimant's claim 
 
         is barred as filed beyond the applicable limitations period.
 
         
 
              Defendant has not paid benefits and has denied liability for 
 
         this claim.  Under section 85.26(1), where benefits have not been 
 
         paid, an original proceeding for benefits must be commenced 
 
         within two years from the date of the occurrence of the injury 
 
         for which benefits are claimed.  Claimant's original notice and 
 
         petition was filed on December 18, 1986 for a claimed injury of 
 
         January 3, 1986.  That filing date for that injury date is 
 
         clearly within the applicable limitations.  We have difficulty 
 
         understanding defendant's argument as regards the statute of 
 
         limitations. Defendant did not address the issue in its brief.  
 
         Claimant is not alleging a cumulative trauma, but a specific 
 
         incident.  Clearly, claimant's claim was filed within the 
 
         applicable limitation period for a specific incident.  
 
         Furthermore, even had claimant alleged or had the evidence 
 
         submitted proven that claimant's claim was properly a claim for 
 
         cumulative trauma under McKeever, a possibility to which 
 
         defendant alluded in its brief, the record reveals that claimant 
 
         actually left work on or after January 6, 1986.  Therefore, even 
 
         under that theory, claimant's claim was timely filed. See 
 
         McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).
 
         
 
              We now address defendant's assertion that claimant did not 
 
         sustain an injury which arose out of and in the course of his 
 
         employment.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on or about January 3, 1986 
 
         which arose out of and in the course of his employment.  McDowell 
 
         v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 
 
         246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              Defendant asserts that claimant did not receive an injury 
 
         arising out of and in the course of his employment.  Defendant 
 
         relies on one statement from claimant's Veterans Administration 
 
         physicians to support that assertion, namely, that claimant's 
 
         condition resulted from overabuse and hard physical labor over a 
 
         period of time.  Claimant's testimony at hearing, claimant's 
 
         history to the company nurse on January 6, 1986, and claimant's 
 
         history to the numerous physicians he saw in the early days and 
 
         months subsequent to January 3, 1986 all support claimant's 
 
         contention that claimant injured his back while working at FDL 
 
         Foods, Inc., and while engaging in shoveling of meat over two 
 
         consecutive nights.  We agree that Dr. Perry's medical history 
 
         for claimant and apparently claimant's mixed statements to Dr. 
 
         Perry are somewhat suspect.  Yet, even if Dr. Perry's statements 
 
         are discounted, Drs. Johnson, Kramer and Loftus all have cited 
 
         the FDL incident as the basis for claimant's problem.  
 
         Furthermore, other than the one statement of the Veterans 
 
         Administration physician on which defendant relies, this record 
 
         is devoid of evidence suggesting that claimant had any 
 
         preexisting condition in his back.  Defendant also argues that if 
 
         claimant sustained any back injury, it occurred after the FDL 
 
         incident in the subsequent incidents in summer 1986 where he 
 
         attempted to lift a bag of salt and in summer 1987 where he 
 
         attempted to work as a cement plasterer.  Claimant testified at 
 
         hearing that the situs of his pain after those two subsequent 
 
         incidents and his symptoms after those two subsequent incidents 
 
         were substantially identical to the situs of pain and symptoms 
 
         after the original incident.  Those incidents are consistent with 
 
         aggravation of the original injury, but nothing in the record 
 
         suggests that such were a material aggravation.  We find no basis 
 
         for defendant's denial that claimant sustained an injury arising 
 
         out of and in the course of his employment on January 3, 1986.  
 
         Claimant has carried his burden on this issue.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Defendant asserts that claimant failed to give proper notice 
 
         of his injury.  Section 85.23 provides:
 
         
 
              Unless the employer or the employer's representative shall 
 
              have actual knowledge of the occurrence of an injury 
 
              received within ninety days from the date of the occurrence 
 
              of the injury, or.unless the employee or someone on the 
 
              employee's behalf or a dependent or someone on the 
 
              dependent's behalf shall give notice thereof to the employer 
 
              within ninety days from the date of the occurrence of the 
 
              injury, no compensation shall be allowed.
 
         
 
              Claimant testified that he informed the company nurse on 
 
         January 6, 1986 that he had back pain and that he felt such 
 
         resulted from his having shoveled meat on January 3, 1986. 
 
         Claimant reported substantially the same information to Dr. 
 
         Faber, the company doctor, and apparently to Red Rouse, 
 
         identified as labor relations director for FDL.  All such 
 
         communications are sufficient and timely notice to an appropriate 
 
         employer representative of the potential of the work injury being 
 
         claimed. An employer's refusal to acknowledge liability for a 
 
         claimed injury does not change the quality or timeliness of 
 
         notice of such alleged injury.
 
         
 
              We address the causation issue.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of January 3, 1986 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              A treating physician's testimony is not entitled to greater 
 
         weight as a matter of law than that of a physician who later 
 
         examines claimant in anticipation of litigation.  Weight to be 
 
         given testimony of a physician is a fact issue to be decided by 
 
         the industrial commissioner in light of the record the parties 
 
         develop.  In this regard, both parties may develop facts as to 
 
         the physician's employment in connection with litigation, if so; 
 
         the physician's examination at a later date and not when the 
 
         injuries were fresh; his arrangement as to compensation, the 
 
         extent and nature of the physician's examination; the physician's 
 
         education, experience, training, and practice; and all other 
 
         factors which bear upon the weight and value of the physician's 
 
         testimony.  Both parties may bring all this information to the 
 
         attention of the factfinder as either supporting or weakening the 
 
         physician's testimony and opinion.  All factors go to the value 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         of the physician's testimony as a matter of fact not as a matter 
 
         of law. Rockwell Graphic Systems, Inc. v. Prince, 366 N.W.2d 187, 
 
         192 (Iowa 1985).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              A cause is proximate if it is a substantial factor in 
 
         bringing about the result.  It need be only one cause of the 
 
         result; it need not be the only cause.  Blacksmith v. 
 
         All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980).
 
         
 
              The work incident or activity need not be the sole proximate 
 
         cause if the injury is directly traceable to the work incident or 
 
         activity.  Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296, 
 
         297 (Iowa 1974).
 
         
 
              Defendant argues that claimant's condition arises from the 
 
         two subsequent incidents discussed above.  It does not offer 
 
         medical opinion so stating, but for Dr. Perry's causation opinion 
 
         in one of his November 18, 1988 reports and the Veterans 
 
         Administration history of Dr. Zeitler dated July 7, 1988 in which 
 
         Dr. Zeitler related claimant's condition to the summer 1987 
 
         cement work incident.  Dr. Perry rendered opposing opinions as to 
 
         the source of claimant's current condition on November 18, 1988.  
 
         Dr. Perry, therefore, is not found credible as to his opinion 
 
         testimony regarding causation of claimant's injury.  Dr. 
 
         Zeitler's July 7, 1988 history was given almost a year subsequent 
 
         to claimant's summer 1987 incident.  The history appears to have 
 
         been gleaned from notes from other Veterans Administration 
 
         physicians with whom claimant had visited regarding his 
 
         condition.  The history appears to mix facts from the FDL 
 
         incident of January 3, 1986 with facts from the summer 1987 
 
         incident.  Dr. Zeitler's statement for that reason is also 
 
         lacking in credibility.
 
         
 
              On the other hand, claimant testified that his symptoms and 
 
         the situs of those symptoms in summer 1986 and summer 1987 were 
 
         consistent with the situs and the symptoms experienced subsequent 
 
         to shoveling meat at FDL on January 3, 1986.  The situs and the 
 
         symptoms were each consistent with problems to be expected with 
 
         an injury which resulted in back strain or sprain and a bulging 
 
         or herniated disc.
 
         
 
              Defendant also relies on differing CT scan results as a 
 
         basis for denying a causal relationship between claimant's 
 
         claimed condition and any alleged disability.  Defendant argues 
 
         that a CT scan in 1986 did not reveal a herniated disc at L5,S1, 
 
         but that such was appearing on a CT scan in February 1989.  The 
 
         record is repleat with references to disc herniation at L5,S1 
 
         prior to February 1989.  Dr. Loftus reported an L5,S1 herniation 
 
         on June 6, 1986.  That was within six months of claimant's 
 
         January 3, 1986 FDL injury and prior to either the summer 1986 
 
         water softener incident or the summer 1987 cement incident.  The 
 
         record does not support defendant's assertion in this regard.  
 
         Finally, even after Dr. Perry's opinion as to the source of 
 
         claimant's condition is disregarded, Dr. Johnson, Dr. Kramer and 
 
         Dr. Loftus all relate claimant's condition to his FDL Foods 
 
         employment.  Drs. Johnson and Kramer do so as regards claimant's 
 
         express history regarding his activities of January 2, 1986.  Dr. 
 
         Loftus does so by way of a more general statement.  Regardless, 
 
         all three physicians are credible, nonbiased experts and their 
 
         opinion testimony coupled with claimant's own testimony is 
 
         sufficient to prove the necessary causal relationship.  Claimant 
 
         prevails as regards the issue of causality.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              We reach the issue of the nature and extent of claimant's 
 
         condition.
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). 
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  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 
 
         disability 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 disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Iowa Code section 17A.14(5) states:
 
         
 
              The agency's experience, technical competence, and 
 
              specialized knowledge may be utilized in the evaluation of 
 
              evidence.
 
         
 
              Claimant alleges permanency from his January 3, 1986 work 
 
         injury.  The only evidence expressly rating claimant as to a 
 
         permanent partial impairment is the rating of Dr. Perry reporting 
 
         that claimant has a ten percent body as a whole permanent partial 
 
         impairment.  Unfortunately, Dr. Perry's opinions as to causation 
 
         have been disregarded as not credible.  Therefore, we must 
 
         scrutinize his opinions as to permanent partial impairment rating 
 
         as well.
 
         
 
              The permanent partial impairment rating might well be 
 
         redeemed if Dr. Perry's examination results were consistent with 
 
         other chronologically proximate examination results. 
 
         Unfortunately, the last examinations of claimant are those of Dr. 
 
         Perry of November 18, 1988 and of Dr. Faber of October 11, 1988. 
 
         Dr..Perry, in his examination, notes somewhat severe limitations 
 
         on range of motion for claimant.  Dr. Faber records a rather 
 
         remarkable recovery in that Dr. Faber's reported examination 
 
         would appear to indicate that claimant has had no residuals from 
 
         diagnosed lumbar spine injury which apparently includes a 
 
         nonsurgical herniated disc and sciatica.  Both evaluations 
 
         therefore are suspect.  Both evaluations apparently are more 
 
         intended to benefit an opposing party in the litigation process 
 
         than to assist this agency in appropriate evaluation and 
 
         resolution of claimant's claim.  We find such an undesirable 
 
         quality in medical evaluations and reports.
 
         
 
              Claimant's complaints, other medical evidence in the record, 
 
         and our own experience with other claims involving lumbar sprain 
 
         or strain or both with sciatica and nonoperated L5,S1 disc 
 
         herniation suggest that claimant has a mild to moderate permanent 
 
         partial impairment to the body as a whole on account of his 
 
         work-related injury.  Given that, we find Dr. Perry's rating of 
 
         ten percent permanent partial impairment, while suspect in part 
 
         when the opinion is coupled with other evidence submitted 
 
         regarding Dr. Perry's rather cavalier attitude towards rendering 
 
         opinion testimony, more consistent with claimant's actual state 
 
         than Dr. Faber's findings of almost absolute normalcy without 
 
         mention of any permanent partial impairment.
 
         
 
              Claimant was 39 at the time of hearing.  As such, he is a 
 
         moderately young worker.  Claimant has completed ninth grade.  He 
 
         has had no further education.  Prior to his injury, claimant had 
 
         done much unskilled, hard labor and had also acquired skills as a 
 
         mill worker and a painter.  Claimant has been able to use his 
 
         painting skills to provide sporadic postinjury income, both in 
 
         self-employment and in employment where his employer accommodated 
 
         his back condition.  Claimant has not been able to return to the 
 
         kind of heavy unskilled labor he was doing at FDL Foods and such 
 
         does not appear advisable for claimant in the future.  Claimant's 
 
         sporadic income subsequent to his injury in part relates to the 
 
         seasonal nature of his employment as a painter.  While not wholly 
 
         related to his work injury, claimant's inability to engage in 
 
         other, nonseasonal labor to which he was fitted prior to the 
 
         injury is a factor related to the injury.  We note that claimant 
 
         was working only part-time prior to his injury.  While we 
 
         consider that factor, that appeared to be an economic problem and 
 
         not a condition related to claimant's physical state prior to his 
 
         injury.  Nothing in the record suggests that claimant could not 
 
         have worked full-time in hard, unskilled labor such as he was 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         doing at FDL Foods prior to his injury.  Therefore, little weight 
 
         can be given to the fact of claimant's part-time employment 
 
         before the injury in assessing claimant's loss of earning 
 
         capacity related to his work injury.  We note, however, that 
 
         claimant's preinjury employment was on several occasions 
 
         interrupted on account of claimant's substance abuse problems and 
 
         his need to seek treatment for those problems.  Also, subsequent 
 
         to claimant's injury, claimant has also sought treatment for 
 
         substance abuse problems.  While claimant appears to be making 
 
         diligent efforts to overcome his abuse problems, the record 
 
         suggests that claimant's need for treatment of those problems 
 
         after the injury and for reasons not related to the work injury 
 
         has also impacted on claimant's postinjury employability.  
 
         Claimant's employer cannot be held accountable for those problems 
 
         or for their impact on claimant's employability.  Likewise, while 
 
         claimant was terminated subsequent to his work injury, that 
 
         termination was for reasons not related to the injury and 
 
         therefore is not a factor in assessing industrial disability.  
 
         Even given all the above, claimant appears well motivated to 
 
         obtain work given the limitations of his physical situation and 
 
         his personal self. Claimant is to be commended for such given the 
 
         employer's very limited willingness to accommodate claimant in 
 
         any way subsequent to his injury.  Claimant has sustained a loss 
 
         of earning capacity as a result of his injury.  Such is modest, 
 
         however.  Claimant's industrial disability is determined to be 20 
 
         percent of the body as a whole.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Healing period remains at issue.  Section  85.34(1) 
 
              provides:
 
         
 
              If an employee has suffered a personal injury causing 
 
              permanent partial disability for which compensation is 
 
              payable as provided in subsection 2 of this section, the 
 
              employer shall pay to the employee compensation for a 
 
              healing period, as provided in section 85.37, beginning on 
 
              the date of injury, and until the employee has returned to 
 
              work or it is medically indicated that significant 
 
              improvement from the injury is not anticipated or until the 
 
              employee is medically capable of returning to employment 
 
              substantially similar to the employment in which the 
 
              employee was engaged at the time of injury, whichever occurs 
 
              first.
 
         
 
              Claimant left work at FDL on account of his injury on 
 
         January 6, 1986.  He was not released to return to work until 
 
         December 22, 1986.  Claimant did return to alternate work, 
 
         however, in spring 1986 when he started his own painting 
 
         business.  While the painting business was not substantially 
 
         similar work, the painting business did provide claimant with an 
 
         income.  Claimant, therefore, is not entitled to healing period 
 
         benefits during the time that he was receiving an income from his 
 
         painting business. Claimant subsequently sold his interest in the 
 
         painting business in fall 1986.  Claimant reported that he worked 
 
         for a telemarketing company.  From the record, it is unclear as 
 
         to whether claimant worked for the company during the period in 
 
         fall 1986 prior to his December 22, 1986 release to return to 
 
         work at FDL.  If claimant earned income with the telemarketing 
 
         company during that time, claimant is not entitled to healing 
 
         period benefits on account of his work injury at FDL while so 
 
         employed and earning income.  The record is clear, however, that 
 
         claimant was unable to return to work at FDL until December 22, 
 
         1986. Claimant therefore is entitled to healing period benefits 
 
         for those times from January 7, 1986 through December 22, 1986 
 
         where claimant was not actually working, either as a 
 
         self-employed painting business owner or as a representative for 
 
         a telemarketing company.
 
         
 
              Our final concern is claimant's entitlement to payment of 
 
         certain medical costs pursuant to section 85.27.  Under that 
 
         section, a claimant is entitled to payment for all medical 
 
         expenses and related expenses resulting from a compensable 
 
         injury. Claimant has shown a compensable injury.  Clearly, 
 
         claimant's June 10, 1986 Galena Clinic charge for $29.50 is not 
 
         related to the compensable injury.  The record also shows that 
 
         claimant's June 11, 1986 pharmaceutical charge for penicillin in 
 
         the amount of $4.06 is not a cost related to a compensable 
 
         injury.  Claimant is not entitled to payment for those costs.  
 
         That those costs were not costs related to a compensable injury 
 
         was shown on the record after claimant had testified that all 
 
         charges on exhibit 24 related to his work injury.  The foregoing 
 
         fact raises some concerns as regards claimant's reliability as to 
 
         his assertions that all other medical costs are costs related to 
 
         his compensable injury.  All other costs listed are consistent 
 
         with reasonable treatment for a condition such as claimant's 
 
         employment-related condition and aggravation of symptoms of that 
 
         condition during life activities.  Included in that criteria are 
 
         costs with the Veterans Administration Hospital related to 
 
         claimant's September 1, 1987 visitation after the cement work 
 
         incident and costs with Dr. Perry related to claimant's initial 
 
         visitation with Dr. Perry subsequent to the water softener 
 
         incident.  Defendant shall pay medical costs as outlined in the 
 
         order below.
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, it is found:
 
         
 
              Claimant began part-time work with FDL Foods in early 1984.
 
         
 
              Claimant's regular job was pulling loins in the hog cut.
 
         
 
              Claimant submitted to and passed a preemployment physical.
 
         
 
              Claimant intermittently worked occasional nights shoveling 
 
         meat.
 
         
 
              Until the nights of January 2, 1986 and January 3, 1986, 
 
         claimant had never worked two consecutive nights shoveling meat.
 
         
 
              Claimant awoke with severe low back pain and left leg pain 
 
         on Saturday, January 4, 1986.
 
         
 
              Claimant advised the FDL nurse's station of his pain on 
 
         Monday, January 6, 1986.
 
         
 
              Claimant saw Luke Faber, M.D., on Tuesday, January 7, 1986.
 
         
 
              Dr. Faber is the FDL Foods company physician.
 
         
 
              Red Rouse, labor relations director for FDL Foods, advised 
 
         claimant to see another physician regarding claimant's back.
 
         
 
              Claimant filed his original notice and petition on December 
 
         18, 1986.
 
         
 
              Claimant had not had back problems prior to January 3, 1986.
 
         
 
              Claimant's medical history to various physicians relates 
 
         claimant's back condition to shoveling meat at FDL Foods.
 
         
 
              Claimant left work at FDL Foods on account of his injury on 
 
         January 6, 1986.
 
         
 
              Claimant was not released to return to work at FDL Foods 
 
         until December 22, 1986.
 
         
 
              Claimant had his own painting business in spring and summer 
 
         1986 and sold that business in fall 1986.
 
         
 
              Claimant subsequently worked as a representative for a 
 
         telemarketing company.
 
         
 
              Claimant is 39 years old and has completed ninth grade.
 
         
 
              Claimant has a history of substance abuse which has impacted 
 
         upon his employability both pre- and postinjury.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant has a mild to moderate permanent partial impairment 
 
         on account of his work injury.
 
         
 
              Claimant had an aggravation of his symptoms in summer 1986 
 
         and summer 1987.
 
         
 
              The summer 1986 and summer 1987 aggravations of symptoms did 
 
         not represent material aggravations of claimant's work injury.
 
         
 
              Claimant's employment with FDL Foods was terminated for 
 
         reasons not related to his work injury.
 
         
 
              Claimant currently works as a foreman for a roofing and 
 
         painting company in Freeport, Illinois.
 
         
 
              Claimant's current employer accommodates claimant's 
 
         restrictions as to heavy labor which restrictions result from his 
 
         FDL Foods work injury.
 
         
 
              Claimant's prior work experience includes unskilled work as 
 
         a heavy laborer, as well as semi-skilled work as a painter and a 
 
         millwright.
 
         
 
              Claimant is able to utilize his prior experience as a 
 
         painter postinjury.
 
         
 
              Claimant cannot return to the type of unskilled heavy labor 
 
         he was able to do preinjury at FDL Foods and at other 
 
         employments.
 
         
 
              Claimant has had a loss of earning capacity on account of 
 
         his work injury.
 
         
 
              Claimant sustained an injury to his mouth while umpiring a 
 
         Little League game in summer 1986.  Galena Clinic charges for 
 
         June 10, 1986 and pharmaceutical charges for June 11, 1986 relate 
 
         to that incident and not to claimant's work injury.
 
         
 
              Other medical and pharmaceutical charges identified on 
 
         claimant's exhibit 24 relate to claimant's work injury.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, it is concluded:
 
         
 
              Defendant has failed to establish that claimant's claim is 
 
         barred by the applicable statute of limitations.
 
         
 
              Claimant has established an injury on January 3, 1986 which 
 
         injury arose out of and in the course of claimant's employment 
 
         with FDL Foods.
 
         
 
              Defendant has failed to establish that claimant did not give 
 
         appropriate notice pursuant to section 85.23 of his January 3, 
 
         1986 work injury.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant has established that a causal relationship exists 
 
         between claimant's January 3, 1986 work injury and claimant's 
 
         claimed disability.
 
         
 
              Claimant is entitled to healing period benefits from January 
 
         7, 1986 to December 22, 1986 during those times when claimant was 
 
         not earning an actual income, either from his self-employment in 
 
         the painting business or from working as a representative for a 
 
         telemarketing company.
 
         
 
              Claimant is entitled to permanent partial disability 
 
         resulting from his injury of January 3, 1986 of 20 percent of the 
 
         body as a whole.
 
         
 
              Claimant is not entitled to payment of charges with Galena 
 
         Family Medical Clinic, Ltd., in the amount of $29.50 or charges 
 
         for a prescription for penicillin in the amount of $4.06.
 
         
 
              Claimant is entitled to payment of the following medical 
 
         costs:
 
         
 
              Galena-Stauss Hospital               $   11.00
 
              Orthopaedic Surgeons                     45.00
 
              Galena Family Medical Clinic             63.00
 
              Tri-State Neurology                     182.00
 
              Clingman Pharmacy                        25.80
 
              Veterans Administration Hospital        378.00
 
              Stephen R. Perry, D.C.                  566.00
 
              Total                                $1,270.80
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendant pay claimant permanent partial disability benefits 
 
         for one hundred (100) weeks at the rate of ninety-six and 91/100 
 
         dollars ($96.91) per week with those payments to commence on 
 
         December 23, 1986.
 
         
 
              Defendant pay claimant healing period benefits at the rate 
 
         of ninety-six and 91/100 dollars ($96.91) per week from January 
 
         7, 1986 through December 22, 1986 during those periods when 
 
         claimant was not actually earning an income from his 
 
         self-employed painting business or from employment as a 
 
         telemarketing representative.
 
         
 
              Defendant pay accrued amounts in a lump sum.
 
         
 
              Defendant pay interest pursuant to section 85.30.
 
         
 
              Defendant pay medical costs as follows:
 
              
 
              Galena-Stauss Hospital                    $   11.00
 
              Orthopaedic Surgeons                          45.00
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              Galena Family Medical Clinic                  63.00
 
              Tri-State Neurology                          182.00
 
              Clingman Pharmacy                             25.80
 
              Veterans Administration Hospital             378.00
 
              Stephen R. Perry, D.C.                       566.00
 
              Total                                     $1,270.80
 
         
 
              Defendant pay the costs of this action pursuant to Division 
 
         of Industrial Services Rule 343-4.33.
 
         
 
              Defendant file a final payment report when this award is 
 
         paid.
 
         
 
              Signed and filed this 27th day of September, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            HELENJEAN WALLESER
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Stephen J. Juergens
 
         Attorney at Law
 
         200 Security Building
 
         Dubuque, Iowa  52001
 
         
 
         Mr. James M. Heckmann
 
         Attorney at Law
 
         One CyCare Plaza, Suite 216
 
         Dubuque, Iowa  52001
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            51100, 1802, 1803, 52400
 
                                            52401, 52402, 2600, 52801
 
                                            Filed September 27, 1989
 
                                            HELENJEAN WALLESER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         THOMAS G. SMITH,
 
         
 
              Claimant,
 
                                                    File No. 837625
 
         VS.
 
                                                 A R B I T R A T I 0 N
 
         FDL FOODS, INC.,
 
                                                     D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         51100, 52400, 52401, 52402, 52801 2600
 
         
 
              Where a doctor rendered diametrically opposite opinions as 
 
         to causation in substantially identical medical reports of the 
 
         same date, both opinions as to causation were rejected.  Where 
 
         medical evaluations of the last two physicians to examine 
 
         claimant were diametrically opposite and the physicians appeared 
 
         to be primarily interested in advocating a litigant's position, 
 
         both evaluations were found to be suspect.  Permanent partial 
 
         impairment was ascertained from medical history as a whole, 
 
         claimant's testimony as to his limitations, and the deputy's 
 
         experience with other similar cases.  Mild to moderate permanent 
 
         partial impairment was found, such not being inconsistent with 
 
         the opinion of one of the two physicians.
 
         
 
         1802, 1803
 
         
 
              Where claimant was not released to return to work until 
 
         approximately a year after the work injury, but where claimant 
 
         had been self-employed in his own painting business and employed 
 
         as a telemarketing representative during times prior to his 
 
         release, claimant was entitled to healing period during those 
 
         times when he was not actually earning an income from the time he 
 
         left work on account of the injury to the time he was released to 
 
         return to work he was doing when injured.  Claimant's substance 
 
         abuse problems which had impacted on his employability both pre- 
 
         and postinjury were not considered as a factor in assessing 
 
         industrial disability in that the substance abuse has 
 
         substantially the same impact both pre- and postinjury.