Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ANTHONY PIGNERI,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 838742
 
            RINGLAND-JOHNSON-CROWLEY,     :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            ALLIED INSURANCE SERVICES,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            statement of the case
 
            
 
                 Defendants appeal and claimant cross-appeals from an 
 
            arbitration decision awarding industrial disability benefits 
 
            as the result of an alleged injury on November 10, 1986.  
 
            The record on appeal consists of the transcript of the 
 
            arbitration proceeding, claimant's exhibit 1, and 
 
            defendants' exhibits 1 through 3.  Both parties filed briefs 
 
            on appeal.
 
            issues
 
            Defendants state the following issue on appeal:  "Whether 
 
            the Claimant has sustained a 40% industrial disability as 
 
            set forth in the arbitration decision?"
 
            Claimant states the following issues on cross-appeal:
 
            I.  Whether the claimant has sustained a more than 40 
 
            percent industrial disability as awarded by the deputy 
 
            industrial commissioner.
 
            II. Claimant is entitled to healing period compensation from 
 
            January 20, 1988 to August 31, 1988.
 
            review of the evidence
 
            The arbitration decision filed December 15, 1989 adequately 
 
            and accurately reflects the pertinent evidence and it will 
 
            not be set forth herein.
 
            applicable law
 
            Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            A finding of impairment to the body as a whole found by a 
 

 
            
 
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            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 dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            There are no weighting guidelines that indicate how each of 
 
            the factors are to be considered.  There are no guidelines 
 
            which give, for example, age a weighted value of ten percent 
 
            of the total value, education a value of fifteen percent of 
 
            total, motivation - five percent; work experience - thirty 
 
            percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, 1985).
 
            A defendant employer's refusal to give any sort of work to a 
 
            claimant after he suffers his affliction may justify an 
 
            award of disability.  McSpadden v. Big Ben Coal Co., 288 
 
            N.W.2d 181 (Iowa 1980).  Industrial disability may also be 
 
            awarded when an employee is precluded from work because the 
 
            employer believes the injury disqualifies the claimant from 
 
            work.  Blacksmith v. All American, Inc., 290 N.W.2d 348 
 
            (Iowa 1980).  
 
            
 
            Iowa Code section 85.34(1) states:
 
            1. Healing Period.  If an employee has suffered a personal 
 
            injury causing permanent partial disability for which 
 
            compensation is payable as provided in subsection 2 of this 
 

 
            
 
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            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.
 
            analysis
 
            
 
                 Defendants urge as an issue on appeal the extent of 
 
            claimant's industrial disability.  Claimant was 60 years 
 
            old, with a high school education.  Claimant worked most of 
 
            his life as a carpenter or carpenter foreman.  Although 
 
            there was considerable testimony on the extent of manual 
 
            labor a carpenter foreman performs, it appears that although 
 
            claimant did perform more physical labor than a 
 
            superintendent, he performed less physical labor than a 
 
            carpenter.  One witness estimated that 20 percent of a 
 
            carpenter foreman's duties were manual labor.  
 
            
 
                 Claimant has a lifting restriction of not more than 20 
 
            pounds continuously and not more than 50 pounds 
 
            occasionally.  Claimant has a permanent impairment rating of 
 
            ten percent of the body as a whole.  Claimant showed good 
 
            motivation to work by returning to his job after his injury 
 
            in spite of continued pain, and, after leaving defendants' 
 
            employment, claimant sought other jobs.  Claimant also has 
 
            generated income as a consultant.  However, claimant is not 
 
            now steadily employed.  Claimant's earnings dropped 
 
            drastically after his separation from defendant employer.
 
            
 
                 There was considerable dispute in the record as to 
 
            whether claimant was laid off for economic reasons, or 
 
            whether the employer failed to rehire claimant because of 
 
            his injury.  On or about January 20, 1988, claimant was told 
 
            to go home and await a call for the next job.  Claimant is 
 
            still waiting.  Claimant was never told he was laid off.  
 
            (Transcript, pp. 59, 114-115.)  A supervisor for the 
 
            employer testified that although claimant was not formally 
 
            told so, he was in fact laid off due to lack of work, and 
 
            that seven other employees were laid off the same month, 
 
            including another carpenter foreman performing the same 
 
            duties as claimant.  (Tr., pp. 106-107.)  However, claimant 
 
            disputes the statement that the carpenter foreman in 
 
            question performed the same duties.  (Tr., p. 82.)
 
            
 
                 The employer acknowledges that since claimant was "laid 
 
            off," it has hired other carpenter foremen.  A vocational 
 
            rehabilitation worker contacted the employer on claimant's 
 
            behalf, and was told that claimant would be treated as he 
 
            had been in the past.  Claimant contacted the employer, but 
 
            never heard back from them.  The record establishes that 
 
            prior to claimant's injury, claimant was a valued employee, 
 
            had received no complaints about his work, and in fact had 
 
            been entrusted with overseeing significant projects, 
 
            including one out of state project.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Defendants have not alleged that claimant was not 
 
            recalled because he was not able to perform the duties of a 
 
            carpenter foreman.  On the contrary, defendants have 
 
            introduced vocational rehabilitation evidence to show that 
 
            claimant is employable in the construction industry, yet 
 
            defendants have not rehired claimant.  There is no 
 
            explanation in the record as to why other carpenter foremen 
 
            were hired over claimant, an existing employee with a proven 
 
            record of performance.  It is a fair presumption from these 
 
            facts that claimant was not re-hired or recalled because of 
 
            his injury.  This conduct is a relevant factor in 
 
            determining claimant's industrial disability.  Claimant has 
 
            a loss of earning capacity as evidenced by the failure of 
 
            the employer to rehire him, and by the employer's conduct of 
 
            hiring other carpenter foremen but not rehiring claimant.
 
            
 
                 On the other hand, claimant's age is also a factor.  
 
            Claimant is near to the normal age of retirement.  The 
 
            approach of later years when it can be anticipated that 
 
            under normal circumstances a worker would be retiring is, 
 
            without some clear indication to the contrary, a factor 
 
            which can be considered in determining the loss of earning 
 
            capacity or industrial disability which is causally related 
 
            to the injury.  Becke v. Turner-Busch, Inc., 34 Report of 
 
            the Iowa Industrial Commissioner 34 (Appeal Decision 1979).  
 
            Claimant's loss of earning capacity at age 60 is less than 
 
            would be suffered by a younger worker with the same injury.  
 
            
 
                 Claimant has shown good motivation to work by 
 
            attempting to return to work more than once, but without 
 
            success.
 
            
 
                 Based on these and all other appropriate factors for 
 
            determining industrial disability, claimant is determined to 
 
            have an industrial disability of 30 percent.
 
            
 
                 Claimant raises as an issue on cross-appeal a claim for 
 
            healing period benefits from January 20, 1988, until August 
 
            31, 1988 (although claimant appears to erroneously 
 
            substitute "December" for "August" at one point in his 
 
            brief).  Defendants failed to address this issue in their 
 
            appeal brief, and did not file a reply brief.  January 20, 
 
            1988, was claimant's last day of work for defendants.  
 
            Between January 20, 1988 and August 31, 1988, claimant did 
 
            continue to receive medical treatment.  The nature of this 
 
            treatment appears to have been designed to improve 
 
            claimant's condition, rather than mere maintenance.  Ronald 
 
            K. Bunten, M.D., in April of 1988 recommended that claimant 
 
            attend the Iowa Methodist Low Back Institute and that a 
 
            work-hardening program be instituted, and "[i]f that fails 
 
            to bring him up to sufficient improvement to allow return to 
 
            work, consideration for vocational retraining should be 
 
            considered."  (Claimant's exhibit 1, 8-2.)  Claimant's 
 
            attendance at the Iowa Methodist Low Back Institute in May 
 
            of 1988 resulted in a recommendation that claimant undergo a 
 
            work hardening program and physical therapy to improve his 
 
            strength and tolerance to pain.  Although claimant had 
 
            returned to work and held himself out for recall by the 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            employer, clearly claimant was considered by Dr. Bunten to 
 
            still be in a healing period.  Dr. Bunten opined that 
 
            claimant was able to return to work in a supervisory 
 
            capacity on August 31, 1988.  Claimant is entitled to 
 
            healing period benefits for the period January 20, 1988 to 
 
            August 31, 1988.
 
            findings of fact
 
            1.  Claimant received a work-related low back injury on 
 
            November 10, 1986.
 
            2.  Claimant's work-related low back injury on November 10, 
 
            1986 resulted in a 10 percent permanent functional 
 
            impairment to claimant's body as a whole.
 
            3.  Claimant was off work due to his work injury from 
 
            November 13, 1986 through November 30, 1986; March 19, 1987 
 
            through May 27, 1987; July 6, 1987 through August 30, 1987; 
 
            and January 20, 1988 to August 31, 1988.
 
            4.  Defendant employer refused to give any sort of 
 
            continuing work to claimant after January 20, 1988.
 
            5.  Claimant has a reduction in earning capacity as a result 
 
            of his November 10, 1986 injury.
 
            conclusions of law
 
            Claimant is entitled to healing period benefits for the 
 
            period November 13, 1986 through November 30, 1986; March 
 
            19, 1987 through May 27, 1987; July 6, 1987 through August 
 
            30, 1987; and January 20, 1988 to August 31, 1988.
 
            Claimant has incurred a 30 percent industrial disability as 
 
            a result of his work injury on November 10, 1986.
 
            WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay unto claimant healing period 
 
            benefits at the rate of three hundred twenty and 58/100 
 
            dollars ($320.58) for the periods of November 13, 1986 
 
            through November 30, 1986; March 19, 1987 through May 27, 
 
            1987; July 6, 1987 through August 30, 1987; and January 20, 
 
            1988 to August 31, 1988.
 
            
 
                 That defendants shall pay unto claimant one hundred 
 
            fifty (150) weeks of permanent partial disability benefits 
 
            at the rate of three hundred twenty and 58/100 dollars 
 
            ($310.58) beginning August 31, 1988.
 
            
 
                 That defendants shall pay the accrued weekly benefits 
 
            in a lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  The parties stipulated 
 
            that twenty-one point five seven one (21.571) weeks of 
 
            temporary total disability or healing period benefits had 
 
            been previously paid, and three hundred ninety-one and 
 
            59/100 dollars ($391.59) of temporary partial disability, 
 
            and thirty-one (31) weeks of permanent partial disability 
 
            benefits.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay all costs of this action, 
 
            including the preparation of the hearing transcript.
 

 
            
 
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            Page   7
 
            
 
            
 
            
 
            
 
            That defendants file claim activity reports as requested by 
 
            this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of July, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                   CLAIR R. CRAMER
 
                                           ACTING INDUSTRIAL 
 
            COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Joseph M. Bauer
 
            Attorney at Law
 
            309 Court Ave., Ste 500
 
            Des Moines, Iowa 50309
 
            
 
            Mr. Stephen W. Spencer
 
            Attorney at Law
 
            P.O. Box 9130
 
            Des Moines, Iowa 50306-9130
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            1803, 5-1802
 
            Filed July 31, 1991
 
            Clair R. Cramer
 
            BJO
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ANTHONY PIGNERI,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 838742
 
            RINGLAND-JOHNSON-CROWLEY,     :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            ALLIED INSURANCE SERVICES,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1803
 
            Claimant, 60 years old, high school education, worked as a 
 
            carpenter foreman most of his working life in a position 
 
            that required about 20 percent manual labor.  Claimant was 
 
            laid off, but was never told he was laid off.  Employer 
 
            hired other carpenter foremen but did not rehire claimant, 
 
            yet offered vocational evidence that claimant was not 
 
            disabled and could return to work as a carpenter foreman.  
 
            It was held that claimant had shown that he was laid off 
 
            because of his injury and not for economic reasons.  Also 
 
            held that claimant had sustained a 30 percent industrial 
 
            disability.  Disability was increased for employer's refusal 
 
            to rehire claimant, but decreased in light of claimant's 
 
            age.
 
            
 
            5-1802
 
            Additional healing period ordered for period of time when 
 
            claimant was "laid off" but undergoing work hardening 
 
            program, and where medical evidence showed he was not yet 
 
            ready to return to work.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ANTHONY PIGNERI,
 
         
 
              Claimant,                             File No. 838742
 
         
 
         vs.                                     A R B I T R A T I O N
 
         
 
         RINGLAND-JOHNSON-CROWLEY,                  D E C I S I O N
 
         
 
              Employer,
 
                                                       F I L E D
 
         and
 
                                                      DEC 15 1989
 
         ALLIED INSURANCE SERVICES,
 
                                              IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Anthony J. Pigneri, against Ringland-Johnson-Crowley, employer, 
 
         and Allied Insurance Services, insurance carrier, defendants, to 
 
         recover benefits as a result of an alleged injury sustained on 
 
         November 10, 1986.  This matter came on for hearing before the 
 
         deputy industrial commissioner in Des Moines, Iowa, on October 
 
         13, 1989.  The record consists.of the testimony of the claimant, 
 
         Rose Pigneri, claimant's wife, Pete Leo, Mike Baratta, Tom 
 
         Suckow, and Clark Williams; claimant's exhibits 1 through 3; and 
 
         defendants' exhibits l through 4.
 
         
 
                                     ISSUES
 
         
 
              The issues the parties set out in the prehearing report for 
 
         resolution are:
 
         
 
              1.  Whether claimant's disability is causally connected to 
 
         his injury on November 10, 1986; and
 
         
 
              2.  The nature and extent of claimant's disability.
 
         
 
                          REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified that he was basically in the construction 
 
         business from the time of his high school graduation in 1947 to 
 
         the time he became employed with defendant employer in May of 
 
         1983 except for three years in the air force.  Claimant said he 
 
         was self-employed for approximately 21 years of this period.  
 
         Claimant testified he was a carpenter by trade.
 
         
 
              Claimant stated he closed his own business in 1982 because 
 
                                                
 
                                                         
 
         it was too big for any one person.  Claimant also indicated his 
 
         wife, who was the secretary, did the book work, and answered the 
 
         phone, had a nervous breakdown.  Claimant testified he had from 
 
         30 to 40 employees working for him at any one time.
 
         
 
              Claimant described his construction work as involving in part 
 
         supervising contractors, helping the architect in designing the 
 
         building, figuring estimates, negotiating contracts, working with 
 
         blueprints and building specifications, and building buildings. 
 
         Claimant said his only post-high school education was at Chicago 
 
         Tech for blueprint reading, training in the military service, and 
 
         his on-the-job training.  Claimant said he drew $600 per week or 
 
         approximately $30,000 to $35,000 per year from his own business in 
 
         good and bad years.  Claimant indicated that in some good years he 
 
         drew several thousands dollars more from the profits.  Claimant 
 
         indicated he was hired in May of 1983 by defendant employer as a 
 
         supervisor and started at a carpenter foreman's wages.  Claimant 
 
         said his duties with the employer involves seeing projects to 
 
         their completion and overseeing any reworking or repairs to the 
 
         customer's satisfaction.  Claimant emphasized he did not know 
 
         until after he was hired that he was to be a working foreman and 
 
         was to bring his own tools and work manually with others.  
 
         Claimant related he incurred no injuries prior to November 10, 
 
         1986, except a cut hand, and had never missed any work because of 
 
         an injury.
 
         
 
              Claimant testified that on November 10, 1986, while taking a 
 
         stepladder and extension cord to the company truck, he slipped on 
 
         a wet floor at the defendant employer's Holmes Oldsmobile 
 
         building project.  Claimant indicated he landed on his tailbone 
 
         with the ladder he was carrying ending up over his body.  
 
         Claimant said an attendant, who was washing cars, lifted the 
 
         ladder off the claimant so he could get up.  Claimant said he 
 
         continued to work for awhile but later that afternoon he left 
 
         work because his low back pain became severe.
 
         
 
              Claimant described his medical treatment.  Claimant was off 
 
         approximately three weeks, November 13, 1986 through November 30, 
 
         1986.. Claimant referred to the Form 2A activity report as 
 
         setting out the time claimant was off work for which he got paid 
 
         by the defendant.  Claimant said he returned to work December 1, 
 
         1986 for four months but had pain and stiffness in his back.  
 
         Claimant said he was referred to Alfredo D. Socarras, M.D., who 
 
         found nothing and indicated claimant could return to work.  
 
         Claimant said he returned to work and worked until March 19, 
 
         1986, at which time he indicated his pain became severe and he 
 
         was developing stiffness. Claimant was off work up to and 
 
         including May 27, 1987.  Claimant testified he worked four hours 
 
         per day for approximately one and one-half weeks (May 28, 1987 
 
         through June 5, 1987) and eventually increased his hours to a 
 
         full day.  Claimant said the pain became worse and he left work 
 
         again June 6, 1987 and was off work through August 30, 1987.  
 
         Claimant said he went back to work on September 1, 1987 and 
 
         continued to work until January 20, 1988, when he was laid off.  
 
         Claimant said that defendant employer completed a project on that 
 
                                                
 
                                                         
 
         date and did not have another project to start until two or three 
 
         days later.  Claimant said he was told to take off the rest of 
 
         the week and to call defendant employer the following Monday.  
 
         Claimant stated he called defendant employer, who indicated that 
 
         defendant employer did not get the anticipated building permits 
 
         but that they would call claimant in two or three days.  Claimant 
 
         said he waited three weeks and called defendant employer, who 
 
         indicated things were slow but claimant should stick close to the 
 
         phone and they would give him a call.  Claimant said he then 
 
         waited two weeks before he filed for unemployment. Claimant said 
 
         that he continued to seek medical help during this time and was 
 
         ultimately referred to Ronald K. Bunten, M.D.
 
         
 
              Claimant emphasized he has never been told he was fired or 
 
         laid off but considers himself unemployed.  Claimant said January 
 
         20, 1988 was his last day at work with defendant employer. 
 
         Claimant indicated he called the vice president of defendant 
 
         employer around March or May 1988 and the employer indicated to 
 
         claimant that he did not know claimant was laid off.  Claimant 
 
         also said he understood the management consulting company later 
 
         called defendant employer in October 1988 to see if they would 
 
         rehire claimant.  Claimant said Darrell Ball then called him and 
 
         said he did not realize claimant was off work and wished claimant 
 
         had been available beginning the past summer season of 1988. 
 
         Claimant said defendant employer has called him several times 
 
         since January 1988 indicating they would still like to have him 
 
         employed and would call him back.  Claimant said they never 
 
         called him to return to work.  Claimant emphasized that he does 
 
         not believe that work is slow at defendant employer's and that 
 
         they could rehire him if they desired to.
 
         
 
              Claimant indicated he currently has leg pains and weakness 
 
         and his legs tire about 2:00 to 2:30 p.m., especially if he works 
 
         on concrete floors.  Claimant said his present condition limits 
 
         his normal daily activity.  Claimant indicated he wears a support 
 
         and if he is going to be extra active he wears his TENS unit, 
 
         both of which were prescribed by a doctor.  Claimant was asked:  
 
         Would you like to go back to work for the defendant employer?
 
         
 
              His answer was:
 
         
 
              Providing that they would follow the instructions of a 
 
              doctor.  I mean, after three letters were sent to them that 
 
              I should be put on light duty and they disregarded it every 
 
              time that happened, I don't think that I could go back and 
 
              work for those people for the simple reason through the past 
 
              experience of the last three times.  The first two days, I 
 
              mean, they put their arm around you, and then after that 
 
              they throw the sledge hammer and the pick and the shovel to 
 
              you and say, "go at it."
 
         
 
         (Pigneri Deposition; Defendants' Exhibit 3, Page 68)
 
         
 
              Claimant testified he has done some consulting work for two 
 
         friends.  He said he was paid $2000 for one job and nothing for 
 
                                                
 
                                                         
 
         the other.  Claimant described the various places he sought 
 
         employment since January 1983, which included inquiries with the 
 
         state, county, HUD, Des Moines Area College, the Iowa Federation 
 
         of Labor, and other private employers.  Claimant said he followed 
 
         up the three ads sent to him by Mr. Williams, the rehabilitation 
 
         consultant hired by defendants.  Claimant emphasized that he 
 
         never refused any jobs due to low salary.
 
         
 
              Claimant emphasized he is not looking for retirement.  He 
 
         said he must be active and be doing something.  Claimant said he 
 
         presently works without pay for Mr. Baratta, a restaurateur and a 
 
         relative of his wife.  Claimant said he runs the cash register 
 
         almost every Friday and Saturday night for four hours and acts as 
 
         a host, to pass the time.  Claimant said the owner may give him a 
 
         six pack of cigars for his time.
 
         
 
              Rose Pigneri, claimant's wife, testified that claimant had 
 
         no back problems prior to November 10, 1988, and was seeing no 
 
         doctor except for his annual physical examination.  Mrs. Pigneri 
 
         said her husband is more temperamental and irritable since his 
 
         injury due to his pain.  She stated her husband gets up at least 
 
         two times a night because of his injury and pain.
 
         
 
              Pete Leo, owner of Skeffington's Formal Wear and Park Avenue 
 
         Cleaners, testified he has known claimant since they were kids. 
 
 
 
                          
 
                                                         
 
         Leo said that prior to November 10, 1986, claimant did work for 
 
         him and never complained of back pain.  Leo testified he called 
 
         claimant to help remodel his Park Avenue Cleaners in November 
 
         1988.  He said claimant told him he could not do any physical 
 
         work but could be an advisor.  He said claimant drew up the 
 
         blueprints for the carpenters to follow.  Leo emphasized that 
 
         claimant did no lifting and could not handle the carpenter work.  
 
         Leo stated that claimant came on the job, opened up, got the 
 
         carpenters started, left after two or three hours and came back 
 
         later.  Leo indicated claimant complained of back pain.  He said 
 
         that he and the claimant agreed to a $2000 fee but later paid 
 
         claimant another $1500 because claimant spent a lot of time on 
 
         the project.
 
         
 
              Mike Baratta, owner of Baratta's Restaurant, testified he 
 
         has known claimant for 45 years.  He said claimant helps him 
 
         eight hours on weekends and receives no pay.  He said he will 
 
         give claimant pizzas to take home with him.  He said he had never 
 
         known of claimant's back pain until the last few years.  He said 
 
         claimant sits at a cash register and, also, will seat people. 
 
         Baratta emphasizes claimant does no physical work.
 
         
 
              Tom Suckow testified he has worked 13 years for defendant 
 
         employer, first as a purchasing director and the last 12 months 
 
         as safety director.  He described the duties of a foreman and the 
 
         duties of the supervisor or superintendent.  He indicated a 
 
         supervisor or superintendent runs the job and sees that the subs 
 
         are doing their job and whether the company is doing it in 
 
         accordance with the plans.  He said a working foreman has duties 
 
         similar to a superintendent but is responsible for four or five 
 
         men or two or three subcontractors and uses various tools to do 
 
         the job.  Suckow stated the the employer has companies in 
 
         Colorado, Arizona and Des Moines, Iowa.  He indicated the Des 
 
         Moines plant is the largest and has approximately 150 employees. 
 
         He said a project will run from thousands of dollars to a million 
 
         dollars.  He said he is familiar with claimant.
 
         
 
              He testified claimant was a working foreman for defendant 
 
         employer but really does not do strictly manual labor.  He 
 
         disputed claimant's testimony that claimant used a shovel, saw 
 
         and did heavy lifting and pushing to the extent described by 
 
         claimant. Suckow acknowledged that claimant may need to use a 
 
         sledgehammer, but if others are there, they would do it.  He said 
 
         a foreman basically does not use equipment weighing over 50 
 
         pounds.
 
         
 
              Suckow acknowledged that on January 20, 1988, claimant 
 
         finished his project and was told he could go home as the formal 
 
         papers for another job were not completed.  He said the potential 
 
         job never materialized.  Suckow contended business was slow in 
 
         January 1988 and that claimant was not the only person laid off. 
 
         He admitted claimant was to be called when there was work.  
 
         Suckow said defendant employer had 60 employees in Des Moines in 
 
         January 1988, and by summer could have had 120.  Suckow said 
 
         claimant did his job satisfactorily but it was obvious he was 
 
                                                
 
                                                         
 
         reluctant to say anything good about claimant.
 
         
 
              On further cross-examination, Suckow could not recall any 
 
         complaints about claimant's work.  Suckow admitted that claimant 
 
         was not told he was laid off (he received no pink slip).  He 
 
         further acknowledged that he understood when a job came up, 
 
         claimant would be called back.  Suckow explained claimant was not 
 
         called back because defendant employer found people to do better 
 
         work and be more effective.
 
         
 
              Clark Williams testified he works for Management Consulting 
 
         and Rehabilitation Services, Inc., and attempts to assist injured 
 
         workers to return to work or find alternative jobs.  He said he 
 
         was called August 10 or 11, 1988 by defendant insurance carrier 
 
         to help claimant.  He described his standard procedure of 
 
         obtaining the history of a claimant, reviewing medical evidence, 
 
         determining claimant's transferable skills, and seeing if 
 
         claimant could go back to the original job.  Williams said he 
 
         contacted Dr. Bunten with the Low Back Clinic to determine the 
 
         nature and extent of claimant's restrictions or limitations.  
 
         Williams said claimant disagreed with Williams' understanding of 
 
         the restrictions placed on him by Dr. Bunten.
 
         
 
              Williams related claimant's misunderstanding of Williams' 
 
         plan of action.  He believed claimant thought Williams would 
 
         prepare a resume and get him a $50,000 job.  Williams then 
 
         explained he usually does not find a job for claimant.  Williams 
 
         thought after two meetings and four to five calls claimant would 
 
         get his own job.  Williams emphasized he wasn't involved in 
 
         helping claimant prepare a resume.
 
         
 
              Williams said he called a Mr. Ball at defendant employer's 
 
         as to rehiring claimant.  Williams related he sent a letter 
 
         confirming that claimant should contact Mr. Ball as to a possible 
 
         return to work at a job within claimant's restrictions.  Williams 
 
         did not know if claimant called defendant employer.
 
         
 
              Williams said claimant was employable and had a wealth of 
 
         skills and knowledge in the construction industry.  He concluded 
 
         claimant could do work for a construction company, but whether 
 
         there are any existing jobs he did not know.  Williams said 
 
         claimant was cooperative but headstrong.  Williams said claimant 
 
         wanted to get this matter settled.  He concluded, because of 
 
         that, that claimant did not have the motivation or aggressiveness 
 
         he should have.  Williams admitted that he never followed up with 
 
         Mr. Ball, personnel director at defendant employer, as to 
 
         claimant being rehired.  He felt claimant.could do the 
 
         follow-up.
 
         
 
              Joseph G. Schupp, III, M.D., opined in his deposition on 
 
         October 4, 1984, that claimant's degenerative arthritis of the 
 
         spine was aggravated by the injury at work in November 1986, and 
 
         that his low back condition is chronic.  Dr. Schupp was asked:
 
         
 
              Do you feel as though there are limitations that he has 
 
                                                
 
                                                         
 
                   which will prevent him from returning to work as a carpenter 
 
              foreman?
 
         
 
              A.  I think the main types of work that exacerbate his back 
 
              pain are bending, twisting, or lifting, and carpentry 
 
              foreman was not only a job that involved overseeing men but 
 
              actually a job that involved carpentry work where he would 
 
              be required to hang doors, lift, and from what I was told by 
 
              him, he was lifting and twisting and doing quite a.bit of 
 
              bending.
 
         
 
         (Claimant's Exhibit 1, Item 19, Page 9)
 
         
 
              Dr. Schupp said he has known claimant since the doctor was 
 
         seven years old and has never known claimant to have complained 
 
         of back trouble prior to claimant's November 1986 injury.
 
         
 
              Dr. Schupp wrote on July 20, 1987:
 
         
 
              On July 8 he underwent a CT scan of his lumbar spine at 
 
              Methodist Hospital which was remarkable for mildly herniated 
 
              lumbar disc at the L4, L5 level and a minimal herniation of 
 
              his L5, S1 disc.  The remainder of his lumbar spine was 
 
              remarkable for mild to moderate osteoarthritic changes.
 
         
 
                 ....
 
         
 
                   At the present our recommendations for his activity 
 
              level remain the same, that he should not be lifting more 
 
              than 15 pounds.  Again, we would estimate that this will 
 
              require approximately six weeks of therapy.
 
         
 
                   By the history of his complaints, the herniated discs 
 
              noted on the lumbar CT scan are due to the injury that he 
 
              incurred on or about November 10, 1986, and more than likely 
 
              have also resulted in exacerbation of his degenerative 
 
              arthritis also.
 
         
 
         (Cl. Ex. 1, Item 6)
 
         
 
              On February 8, 1988, Dr. Schupp wrote:
 
         
 
              Osteoarthritis can be classified both as primary and 
 
              secondary form, depending on absence or presence of some 
 
              clearly evident underlying local or systemic etiologic 
 
              factor.  As his symptoms date to the time of his 
 
              work-related injury of 11-10-86, and.he denies any previous 
 
              history of back problems or back injuries, I would say with 
 
              a high degree of medical probability that the osteoarthritis 
 
              of his lumbar spine was exacerbated by his work-related 
 
              injury.
 
         
 
         (Cl. Ex. 1, Item 7)
 
         
 
              On April 5, 1988, Dr. Schupp wrote:
 
                                                
 
                                                         
 
         
 
              In addition to his degenerative disc disease of the lumbar 
 
              spine, he also had changes of osteoarthritis (degenerative 
 
              disease of the lumbar spine).  Both of these conditions are 
 
              felt to be work related, as the onset of his symptoms date 
 
              to 11/10/86, following a back injury, where he fell at 
 
              Holmes Oldsmobile while working as a construction foreman.  
 
              As he is currently unable to perform the activities which 
 
              are required of him as a construction foreman, he is 
 
              completely disabled to continue as a construction foreman 
 
              for Ringland-Johnson-Crowley.
 
         
 
         (Cl. Ex. 1, Item 9)
 
         
 
              Alfredo D. Socarras, M.D., a neurologist, testified on 
 
         October 2, 1989, through deposition.  He said he first saw 
 
         claimant on May 11, 1987, after being referred to him by.Dr. 
 
         Schupp.  Dr..Socarras was asked:
 
         
 
              Did you form an opinion within a reasonable degree of 
 
              medical certainty as to whether the complaints that you saw 
 
              Mr. Pigneri for were related to the work incident that he 
 
              described when he fell on his buttocks?
 
         
 
              A.  That was a year after the fall because I examined him in 
 
              1987.  Not quite a year.  It was actually six months or 
 
              seven months later.  Of course, the history was, according 
 
              to what he told me, that this started at the time, so there 
 
              was some connection there.
 
         
 
                   I thought that these findings, x-ray findings, the 
 
              degenerative findings that were observed in the x-rays of 
 
              the spine were not related to the incident he described of 
 
     
 
                          
 
                                                         
 
              November 1986, and many patients or many individuals of his 
 
              age if you take x-rays for some other reason you will find 
 
              degenerative changes in the spine without actually the 
 
              patients having any symptoms, so the question was whether 
 
              there was.any aggravation of that, and I could not be 
 
              certain, and you can have a muscle strain without actually 
 
              having any disruption of the spine,itself.
 
         
 
         (Socarras Deposition, Defendants' Exhibit 2 Pages 11-12)
 
         
 
              On May 14, 1987, Dr. Socarras wrote:
 
         
 
              In summary the neurological examination was normal.  I 
 
              reviewed the lumbar and lower thoracic spine x-rays taken in 
 
              November, 1986, following the accident, and more recently on 
 
              February 20, 1987.  The X-rays showed degenerative changes 
 
              in the lower dorsal area in both occasions.  It is my 
 
              opinion that this is not related to the accident.
 
         
 
         (Def. Ex. 2, Item 6)
 
         
 
              Joshua D. Kimelman, D.O., testified through deposition on 
 
         September 13, 1989, that he first saw claimant for treatment on 
 
         January 12, 1989.  Dr. Kimelman performed an examination and 
 
         looked at claimant's previously taken x-rays.  Dr. Kimelman said 
 
         he agreed with Dr. Bunten's 10 percent impairment rating.  When 
 
         asked if the 10 percent impairment is due to the incident in 
 
         1986, the doctor answered:
 
         
 
              The impairment relates to -- as outlined by the various 
 
              books that have been published for evaluation of impairment, 
 
              relates to predominantly objective loss of function, X-ray 
 
              changes, and in some -- with some consideration towards pain 
 
              that is consistently stated and consistent with other 
 
              physical findings, and those are the categories that I would 
 
              use in assigning a 10 percent impairment rating.  However, 
 
              the x-ray findings of degenerative arthritis I don't believe 
 
              can be based 100 percent on a fall that occurred some years 
 
              before and I would point out that there will be some degree 
 
              of degenerative change on X-rays of the lumbar spine noted 
 
              in the majority of people over the age of 40 or 45 years so 
 
              that certainly some of this must be considered preexisting.
 
         
 
         (Cl. Ex. 1, Item 18)
 
         
 
              Dr. Kimelman later specifically opined that claimant had a 
 
         preexisting condition that was aggravated by the fall.  Dr. 
 
         Kimelman also said claimant should avoid bending, twisting and 
 
         lifting.
 
         
 
              Ronald K. Bunten, M.D., wrote on March 2, 1988:
 
         
 
                   I think he has multilevel degenerative change in his 
 
              back which is likely symptomatic.  I do not think there is 
 
              any encroachment or surgical indication.  I think the 
 
                                                
 
                                                         
 
                   choices boil down to living with his symptoms and trying to 
 
              modify his activities to keep his symptoms under control or 
 
              consider getting into less physical sorts of work 
 
              activities.  I do not think we have any quick fix that would 
 
              likely make him a lot better.  We discussed further 
 
              symptomatic management.
 
         
 
         (Cl. Ex. 1, Item 8)
 
         
 
              Iowa Methodist Low Back Institute records reflect in a 
 
         letter to Dr. Bunten:
 
         
 
              Impressions:  Patient was cooperative in his program and did 
 
              improve his awareness to correct his posture in all daily 
 
              activities and did improve in his body mechanics.
 
         
 
                   Patient appears to tolerate a Light Work category. 
 
              However, I  question his ability to tolerate this activity 
 
              level on a daily basis.  Weather, stress, weighted objects, 
 
              and repetitive movements appear to increase his pain levels 
 
              and patient needs to take frequent rest breaks and modify 
 
              his work.
 
         
 
         (Def. Ex. 1, Item 9)
 
         
 
              These same records reflect claimant completed his work 
 
         hardening program on August 4, 1988.
 
         
 
              The Orthopedic Associates, P.C., notes on February 16, 1989 
 
         reflect:
 
         
 
                   59-year old male seen on follow up of degenerative 
 
              arthritis of the back with chronic back pain.  He is 
 
              continuing on the exercise program.  Is essentially 
 
              unchanged over previous.  We have not obtained his 
 
              functional evaluation.  He has been rated at 10% impaired by 
 
              Dr. Bunten. I believe that based on what I've see [sic] of 
 
              mr. [sic] Pigneri at this point, although I hesitate to 
 
              comment without seeing the functional capacity evaluation 
 
              that that's probably an appropriate rating, and I will see 
 
              him on a prn basis.
 
         
 
         (Def. Ex. 1, Item 11)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of November 10, 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).
 
         
 
              Our supreme court has stated many times that a claimant may 
 
         recover for a work connected aggravation of a preexisting 
 
         condition.  Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 
 
         N.W. 35 (1934).  See also Auxier v. Woodward State Hosp, Sch., 
 
         266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co. 158 
 
         N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 
 
         704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United States Gypsum 
 
         Co., 252 Iowa 613, 106 N.W.2d 591 (1960).
 
         
 
              The Iowa Supreme Court cites apparently with approval, the 
 
         C.J.S. statement that the aggravation should be material if it is 
 
         to be compensable.  Yeager, 253 Iowa 369, 112 N.W.2d 299; 100 
 
         C.J.S. Workmen's Compensation sec. 555(17)a.
 
         
 
              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, 252 Iowa 613, 620, 106 N.W.2d 591, and 
 
         cases cited.
 
         
 
              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, 
 
         Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 
 
         613, 106 N.W.2d 591.  See also Barz, 257 Iowa 508, 133 N.W.2d 
 
         704; Almquist, 218 Iowa 724, 254 N.W. 35.
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W.2d 899, 902 (1935) as follows:  "It is therefore 
 
         plain that the legislature intended the term "disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
                                                
 
                                                         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              A defendant employer's refusal to give any sort of work to a 
 
         claimant after he suffers his affliction may justify an award of 
 
         disability.  Mcspadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 
 
         1980).
 
         
 
              A healing period may be interrupted by a return to work. 
 
         Riesselman v. Carroll Health Center, 3 Iowa Industrial 
 
         Commissioner Reports 209 (Appeal Decision 1982).
 
         
 
              Apportionment of disability between a preexisting condition 
 
         and an injury is proper only when there was some ascertainable 
 
         disability which existed independently before the injury 
 
         occurred. Varied Enterprises..Inc. v. Sumner, 353 N.W.2d 407 
 
         (Iowa 1984)
 
         
 
         
 
              The burden of showing that disability is attributable to a 
 
         preexisting condition is, of course, placed upon the defendant.  
 
         If evidence to establish a proper apportionment is absent, the 
 
         defendant is responsible for the entire disability that exists. 
 
         Varied, 353 N.W.2d 407; Becker v. D & E Distributing Co., 247 
 
         N.W.2d 727, 731 (Iowa 1976); 2A Larson, Workmen's Compensation 
 
         Law,  59.22; 22 Am.Jur.2d,  122; 2 Damages & Tort Actions  
 
         15.34[1](a).
 
         
 
                          
 
                                                         
 
              Claimant is 60 years old.  He has been in the construction 
 
         business for approximately 36 years.  Many of those years he was 
 
         self-employed, operating his own construction business.  Claimant 
 
         was injured on November 10, 1986 when he slipped while carrying a 
 
         ladder and extension cord to defendant employer's truck.  
 
         Claimant slipped on the wet floor at a construction project of 
 
         defendant employer's.  The greater weight of medical evidence 
 
         shows that claimant injured his low back when he slipped and fell 
 
         on his buttocks.  The question arises whether claimant's current 
 
         disability is causally connected to this November 10, 1986 injury 
 
         or is his disability from some other injury or preexisting 
 
         condition.  There is no evidence that claimant had any back 
 
         problems and symptoms prior to his November 10, 1986 injury.  The 
 
         evidence does show claimant has arthritis and did have arthritis 
 
         in his back at the time of the injury.  A person of 60 years is 
 
         normally expected to have some arthritis.  The undersigned finds 
 
         that claimant had a preexisting arthritic condition in his back 
 
         at the time of his injury.  It is undisputed that claimant was 
 
         having no symptoms from preexisting arthritis until his fall in 
 
         November 1986.  The undersigned finds from the greater weight of 
 
         medical evidence that claimant's fall materially aggravated, lit 
 
         up and worsened an asymptomatic arthritic condition in claimant's 
 
         low back.  Claimant has a minimal bulging of the L5-S1 
 
         intervertebral disc and mild generalized bulging of the L4-5 
 
         intervertebral disc without evidence of compression or entrapment 
 
         of the neural element.
 
         
 
              More than one doctor has recommended that claimant not do 
 
         any bending, twisting or lifting.  It is not clear whether 
 
         claimant's weight lifting restriction is not over 20 pounds or 
 
         not over 50 pounds.  It appears he should work only in a light 
 
         duty job. Claimant had no physical restrictions or limitations of 
 
         any kind prior to his November 10, 1986 injury.
 
         
 
              Claimant has a 10 percent permanent functional impairment to 
 
         his body as a whole as a result of his low back injury and 
 
         condition.  There is no evidence of apportionment of claimant's 
 
         disability or impairment prior to and after November 10, 1986.  
 
         Dr. Schupp, Dr. Bunten and Dr. Kimelman opined a 10 percent 
 
         impairment to claimant's body as a whole.  The greater weight of 
 
         medical evidence causally connects claimant's impairment and 
 
         disability to his injury on November 10, 1986, which injury 
 
         materially aggravated a preexisting osteoarthritic.back condition.  
 
         The undersigned finds the greater weight of medical evidence 
 
         concludes claimant's current disability is causally connected to 
 
         claimant's injury on November 10, 1986.
 
         
 
              Claimant was off work and returned to work on various 
 
         occasions.  The parties dispute the extent of claimant's healing 
 
         periods.  Claimant contends it extends to August 31, 1988, at 
 
         least, and even possibly through December 31, 1988.  Defendants 
 
         contend it ended on and not including September 1 1987.  Claimant 
 
         returned to work for defendant employer for the second time on 
 
         September 1, 1987 and worked up to and including January 20, 
 
         1988, at which time claimant was told to go home the rest of the 
 
                                                
 
                                                         
 
         week and he would be called.  It appears defendant employer was 
 
         waiting for documents consummating a new job.  Actually, the job 
 
         was not ultimately obtained by defendant employer and claimant 
 
         was never asked to return to work again by defendant employer.  
 
         Defendants' witness acknowledged it wasn't the normal pink slip 
 
         layoff and that it was the employer's intent to call the claimant 
 
         back to work.  It appears claimant was willing and able to return 
 
         to work and had there not been a so-called layoff or temporary 
 
         interruption between jobs that became a permanent interruption, 
 
         claimant would have continued working.  The fact that claimant 
 
         decided to seek further medical care to relieve his problems 
 
         caused by his permanent impairment does not mean claimant was 
 
         still in his healing period.  There is no evidence that the 
 
         additional medical care after September 1, 1987, in fact, 
 
         provided any additional healing to the claimant's medical 
 
         condition.  The greater weight of evidence shows claimant reached 
 
         his maximum healing on September 1, 1987 and basically has not 
 
         improved since that time.  The undersigned finds claimant's 
 
         healing periods are November 13, 1986 to and including November 
 
         30, 1986, March 19, 1987 to and including May 27, 1987, and July 
 
         6, 1987 to and including August 30, 1987, which total 20.571 
 
         weeks.
 
         
 
              Drs. Bunten, Schupp and Kimelman opined or agreed that 
 
         claimant has a 10 percent functional impairment to his body as a 
 
         whole.  None of these doctors apportion any of this impairment to 
 
         claimant's preexisting arthritic condition.  Defendant takes 
 
         claimant as he is.  Claimant had no evident problem before his 
 
         November 10, 1986 fall.  Defendants have presented no evidence 
 
         that the undersigned should apportion any of claimant's 
 
         impairment to any preexisting condition.  The undersigned finds 
 
         claimant has a 10 percent functional impairment to his body as a 
 
         whole as a result of his November 10, 1986 work-related injury.
 
         
 
              Claimant appears eager to stay active and not retire.  He 
 
         has been active throughout his life until his injury of November 
 
         10, 1986.  He has continued to attempt to do things within his 
 
         expertise.  Claimant has called defendant employer who seems to 
 
         indicate that claimant should be getting a call any time.  At one 
 
         time, the personnel director of defendant employer's seemed 
 
         surprised claimant was "laid off" and wished he knew that three 
 
         or four months earlier.
 
         
 
              Defendant hired a rehabilitation counselor who indicated his 
 
         job is to assist the injured worker's return to work or find an 
 
         alternative job.  This witness' evidence was not necessary to 
 
         convince the undersigned that claimant is a qualified 
 
         construction contractor with years of experience in many phases 
 
         of construction and supervisory ability.  Mr. Williams, the 
 
         rehabilitation expert, further convinced the undersigned, if 
 
         there was ever a doubt, that the claimant would be a good 
 
         employee for most commercial contractors, even at age 60.  The 
 
         deputy is concerned as to the lack of consistent effort from Mr. 
 
         Williams to convince those who hired him, defendant insurance 
 
         carrier, and indirectly defendant employer, that there is a case 
 
                                                
 
                                                         
 
         of McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) that 
 
         finds refusal by an employer to give claimant any sort of work 
 
         after he suffers an affliction may justify an award of 
 
         disability.  Although Mr. Williams said his job is to get 
 
         claimant back to work, further follow-ups would probably have 
 
         been useless considering the defendant employer.'s attitude.  
 
         Defendants come into a hearing with an expert attempting to show 
 
         claimant isn't disabled and is qualified to work for many 
 
         contractors.  It concerns the undersigned that this expert can't 
 
         convince a former employer who knows the claimant's 
 
         qualifications better than anyone else, to rehire the claimant to 
 
         lessen the claimant's industrial disability and its own 
 
         liability.
 
         
 
              Mr. Suckow testified claimant was not called back because 
 
         defendant employer found people who could do better work and be 
 
         more effective.  If the undersigned is to believe defendants' 
 
         expert rehabilitation consultant, then Suckow's testimony is not 
 
         credible.  There appears to be a communication gap between the 
 
         employer, insurance carrier, and their expert.  Mr. Williams left 
 
         the impression that the claimant is so qualified he can find his 
 
         own job and needed no help.  Williams left the impression that 
 
         claimant's ability to obtain a job is limited only by the lack of 
 
         construction companies in this area.  Defendants emphasized 
 
         claimant should be able to use his great skills and expertise to 
 
         start his own business again at age 60.  It is obvious claimant's 
 
         wife was a big part of claimant's business before he closed it. 
 
         Claimant's wife was a "do it all" secretary and the stress caused 
 
         her to have mental breakdowns.  Defendants are not realistic in 
 
         their contention.
 
         
 
              Let this decision send a message to the employers that their 
 
         refusal to.give any sort of work to a claimant after he suffers 
 
         his work-related affliction does justify an award of disability. 
 
         Furthermore, the employer ultimately pays the premium.  Better 
 
         communication between defendants and their hired expert may 
 
         reduce one's ultimate liability.  Rehabilitation experts should 
 
         emphasize to their clients that it is difficult to rave about a 
 
         claimant's qualifications, ability to work and the potential to 
 
         be hired by a multitude of others, but, in fact, be flatly turned 
 
         down or disregarded by the client, defendants, themselves.  The 
 
         defendants want the undersigned to believe their experts but they 
 
         disregard their expert's findings.  Taking into consideration the 
 
         claimant's age, medical condition prior to his injury, length of 
 
         healing period, work experience prior to the injury, claimant's 
 
         functional impairment as a result of the injury, defendants' 
 
         emphasis on claimant's qualifications and ability to obtain a job 
 
         but refusing themselves to rehire claimant or "end his layoff," 
 
         and all those other items that must be considered in determining 
 
         industrial disability, the undersigned finds claimant has a 40 
 
         percent industrial disability beginning January 21, 1988.
 
         
 
              The undersigned recognizes defendant allowed claimant to 
 
         come back two or three times after his injury and this is 
 
         commendable. This was taken into consideration in determining 
 
                                                
 
                                                         
 
         claimant's industrial disability.
 
         
 
                                FINDINGS OF FACT
 
         
 
              1.  Claimant received a work-related low back injury on 
 
         November 10,.1986.
 
         
 
              2.  Claimant's work-related low back injury on November 10, 
 
         1986 resulted in a 10 percent permanent functional impairment to 
 
         claimant's body as a whole.
 
         
 
              3.  Claimant incurred healing periods of November 13, 1986 
 
         to and including November 30, 1986, March 19, 1987 to and 
 
         including May 27, 1987, and July 6, 1987 to and including August 
 
         30, 1987, totaling 20.571 weeks at the rate of $320.58.
 
         
 
              4.  Claimant incurred temporary partial disability benefits 
 
         May 28, 1987 to and including June 5, 1987, ($220.33), and July 
 
         24, 1988 to July 30, 1988 ($171.26), which involves two weeks and 
 
         two days, totaling $391.59.
 
         
 
              5.  Defendant employer refused to give any sort of 
 
         continuing work to claimant after January 20, 1988.
 
         
 
              6.  Claimant has a reduction in earning capacity as a result 
 
         of his November 10, 1986 injury.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant's low back injury on November 10, 1986 arose out of 
 
         and in the course of his employment.
 
         
 
              Claimant has a 10 percent permanent functional impairment to 
 
                                
 
                                                
 
                                                         
 
         his body as a whole.
 
         
 
              Claimant's 10 percent functional impairment to the body as a 
 
         whole is causally connected to his work-related injury of 
 
         November 10, 1986.
 
         
 
              Claimant incurred healing periods of November 13, 1986 to 
 
         and including November 30, 1986, March 19, 1987 to and including 
 
         May 27, 1987, and July 6, 1987 to and including August 30, 1987, 
 
         totaling 20.571 weeks.
 
         
 
              Claimant has a reduction in earning capacity caused by his 
 
         November 10, 1986 injury.
 
         
 
              Claimant has incurred a 40 percent industrial disability.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants shall pay unto claimant healing period 
 
         benefits at the rate of three hundred twenty and 58/100 dollars 
 
         ($320.58) for the periods of November 13, 1986 to and including 
 
         November 30, 1986, March 19, 1987 to and including May 27, 1987, 
 
         and July 6, 1987 to and including August 30, 1987, totaling 
 
         twenty point five seven one (20.571) weeks.
 
         
 
              That defendants shall pay unto claimant two hundred (200) 
 
         weeks of permanent partial disability benefits at the rate of 
 
         three hundred twenty and 58/100 dollars ($320.58) beginning 
 
         January 21, 1988.
 
         
 
              That defendants shall pay the accrued weekly benefits in a 
 
         lump sum and shall receive credit against the award for weekly 
 
         benefits previously paid.  The parties stipulated that twenty-one 
 
         point five seven one (21.571) weeks of temporary total disability 
 
         or healing period benefits had been previously paid, and three 
 
         hundred ninety-one and 59/100 dollars ($391.59) of temporary 
 
         partial disability, and thirty-one (31) weeks of permanent 
 
         partial disability benefits.
 
         
 
              That defendants shall pay interest on benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              That defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants shall file an activity report upon payment 
 
         of this reward as requested by this agency pursuant to Division 
 
         of Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 15th day of December, 1989.
 
         
 
         
 
                                                
 
                                                         
 
         
 
         
 
         
 
         
 
         
 
                                            BERNARD J. O'MALLEY
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To.
 
         
 
         Mr Joseph M Bauer
 
         Attorney at Law
 
         309 Court Ave
 
         Des Moines IA  50309
 
         
 
         Mr Paul C Thune
 
         Attorney at Law
 
         P 0 Box 9130
 
         Des Moines IA  50306-9130
 
 
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            51803; 1807
 
                                            Filed December 15, 1989
 
                                            Bernard J. O'Malley
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ANTHONY PIGNERI,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                   File No. 838742
 
         RINGLAND-JOHNSON-CROWLEY,
 
                                               A R B I T R A T I 0 N
 
              Employer,
 
                                                  D E C I S I 0 N
 
         and
 
         
 
         ALLIED INSURANCE SERVICES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         51803
 
         
 
              Claimant's work-related low back injury resulted in a 10% 
 
         permanent partial impairment to his body as a whole.
 
         
 
         1807
 
         
 
              Defendants' expert rehabilitation consultant extolled the 
 
         claimant's ability and expertise in the construction business, 
 
         but made a weak effort and couldn't convince his own clients to 
 
         rehire claimant.
 
         
 
         1807
 
         
 
              Under McSpadden, defendant employer's refusal to rehire 
 
         claimant increased claimant's industrial disability.
 
         
 
         51803
 
         
 
              Claimant awarded 40% industrial disability.
 
 
 
         
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ANTHONY PIGNERI,              :
 
                                          :
 
                 Claimant,                :
 
                                          :      File No. 838742
 
            vs.                           :
 
                                          :          N U N C
 
            RINGLAND-JOHNSON-CROWLEY,     :
 
                                          :           P R O   
 
                 Employer,                :
 
                                          :          T U N C
 
            and                           :
 
                                          :         O R D E R
 
            ALLIED INSURANCE SERVICES,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            The appeal decision filed July 31, 1991 ordered defendants 
 
            to pay healing period and permanent partial disability 
 
            benefits.  A typographical error in the rate of compensation 
 
            is contained in the second paragraph of the order setting 
 
            out the permanent partial disability benefits.
 
            THEREFORE, paragraph 2 of the order of the decision is 
 
            corrected to read as follows:
 
            
 
                 That defendants shall pay unto claimant one hundred 
 
            fifty (150) weeks of permanent partial disability benefits 
 
            at the rate of three hundred twenty and 58/100 dollars 
 
            ($320.58) beginning August 31, 1988.
 
            
 
                 Signed and filed this ____ day of August, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                   CLAIR R. CRAMER
 
                                           ACTING INDUSTRIAL 
 
            COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Joseph M. Bauer
 
            Attorney at Law
 
            309 Court Ave., Ste 500
 
            Des Moines, Iowa 50309
 
            
 
            Mr. Stephen W. Spencer
 
            Attorney at Law
 
            P.O. Box 9130
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Des Moines, Iowa 50306-9130
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            ROBERT FOLEY,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 838945
 
            ROSS DANIELS, INC., :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            FARMLAND MUTUAL INSURANCE     :
 
            COMPANY,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed May 25, 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. Channing Dutton
 
            Attorney at Law
 
            1200 35th Street, Ste. 500
 
            West Des Moines, Iowa 50265
 
            
 
            Mr. Cecil L. Goettsch
 
            Attorney at Law
 
            1100 Des Moines Building
 
            Des Moines, Iowa 50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      9998
 
                      Filed September 20, 1991
 
                      BYRON K. ORTON
 
                      BJO
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            ROBERT FOLEY,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 838945
 
            ROSS DANIELS, INC., :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            FARMLAND MUTUAL INSURANCE     :
 
            COMPANY,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed May 25, 
 
            1990.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROBERT FOLEY,
 
         
 
              Claimant,
 
                                                      File No. 838945
 
         vs.
 
                                                   A R B I T R A T I O N
 
         ROSS DANIELS, INC.,
 
                                                      D E C I S I O N
 
              Employer,
 
         
 
         and                                             F I L E D
 
         
 
         FARMLAND MUTUAL INSURANCE,                     MAY 25 1990
 
         COMPANY,
 
                                               IOWA INDUSTRIAL 
 
         COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE FACTS
 
         
 
              This is a proceeding in arbitration wherein Robert D. Foley 
 
         seeks compensation for healing period benefits, permanent partial 
 
         disability benefits and payment of medical expenses based upon an 
 
         alleged back injury on November 13, 1986.  The case was heard in 
 
         Des Moines, Iowa, on April 26, 1990.  The record in this 
 
         proceeding consists of the testimony of claimant, Loren Prothe, 
 
         and Patty McCollom; and joint exhibits 1 through 4 and 6 through 
 
         28.
 
         
 
                                      ISSUES
 
         
 
              The issues for resolution are:
 
         
 
              1.  Whether claimant's alleged November 13, 1986 injury 
 
         arose out of and in the course of his employment;
 
         
 
              2.  Whether claimant's condition is causally connected to 
 
         his alleged November 13, 1986 injury;
 
         
 
              3.  The nature and extent of claimant's disability; and 
 
         
 
              4.  Claimant's entitlement to Iowa Code Section 85.27 
 
         medical benefits.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant is a 43-year-old who completed ninth grade.  He 
 
         eventually obtained his GED from DMACC in 1983.  Claimant 
 
         described his work history prior to his employment with defendant 
 
         employer on January 7, 1980.  This history involved many jobs 
 
         like cutting trees, cleaning yards, working in a bakery, working 
 
         as a pastry chef and a cook in various hotels, being a punch 
 
         press operator, a school custodian, and an order filler at the 
 
         Super Valu warehouse.  Claimant stated these jobs basically were 
 
         heavy duty and required reaching, lifting and bending.
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant described his various jobs while working for 
 
         defendant employer, several of which involved heavy work, 
 
         lifting, bending and twisting.
 
         
 
              Claimant related that he also dealt with scrap iron, cars, 
 
         trucks and motorcycles, and hauled junk.  Claimant said he 
 
         modified cars and hot rods and basically acquired that knowledge 
 
         by working on the vehicles.  Claimant acknowledged his 
 
         delinquency as a child and served some time in Eldora Training 
 
         School. Claimant related his November 13, 1986 low back injury as 
 
         being caused when he reached for a bag of fertilizer on a skid 
 
         and two bags of fertilizer fell on him, causing him to twist his 
 
         back. Claimant described the position of the skids, which 
 
         required him to step over and put his foot on another skid in 
 
         order to reach the bags.  He indicated he told defendant employer 
 
         three times about the skid position before he was injured.  
 
         Claimant contends he reported his injury to his foreman later.  
 
         Claimant indicated he had a problem with the lineup of the skids 
 
         on November 12, 1986 also.  Claimant acknowledged he did not tell 
 
         anyone on the 12th because he had just come off a three day 
 
         suspension and he did not want to cause anyone any trouble.
 
         
 
              Claimant described other suspensions which he concluded were 
 
         not his fault or were nitpicking items.  He acknowledged there 
 
         was animosity between himself and a fellow worker higher in 
 
         seniority, namely, a Mr. Hensley.
 
         
 
              Claimant said he could hardly walk on November 14, 1986 and 
 
         went to Iowa Methodist Hospital.  Claimant described his medical 
 
         treatment.  Claimant stated William R. Boulden, M.D., recommended 
 
         in February 1988 that he return to work at defendant employer. 
 
         Claimant said he tried to work again.  Claimant last worked for 
 
         defendant employer in April 1988.
 
         
 
              Claimant's testimony was confusing as to whether he left 
 
         defendant employer due to a layoff or for health reasons.  
 
         Claimant related his back and health as good prior to November 
 
         13, 1986. Claimant was questioned as to various injuries and 
 
         accidents he had in 1976, 1980 and 1986.  He said he wears a back 
 
         brace today because of his November 13, 1986 injury.  Claimant 
 
         indicated the weather affects his back.  Claimant stated he 
 
         attended the Vale National Training Center in November 1989, 
 
         located in Pennsylvania, with the tuition paid by the State 
 
         Vocational Rehabilitation Department and the insurance company 
 
         paying the rest of the expenses.  His course was in auto 
 
         estimation (appraisal).  Claimant said he became employed 
 
         part-time on an as-needed basis by Gay & Taylor, insurance 
 
         adjusters, to do auto damage appraising. Claimant emphasized he 
 
         does zero to two appraisals a day and receives one-half of the 
 
         appraisal fee.  Claimant emphasized it is not currently a 
 
         profitable job.  He did not know how much he makes.
 
         
 
              Claimant related he does not want to go back to work for 
 
         defendant employer.  He emphasized his.reason is not because 
 
         defendant employer won't take him back.  Claimant was asked 
 
         several questions as to his alleged common law wife, their court 
 
         fight and her deposition.  Claimant disagreed with much of her 
 
         testimony regarding him and his activity and appears not 
 
         surprised to what she testified to in her deposition due to the 
 
         animosity that exists between them.  Basically, claimant contends 
 
         the work he did on his house was before his injury and not after.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant testified as to his junk auto business which he 
 
         often referred to as a hobby and not really a business.  He 
 
         described how he loaded the vehicle on his flat bed truck and 
 
         pulled it with a winch-type mechanism, thereby requiring very 
 
         little physical work.  Claimant said he basically keeps no 
 
         records except he apparently has some titles to cars.
 
         
 
              Claimant adamantly denied that he said to a coworker, Chach 
 
         Burriola, in relation to a workers' compensation claim, "go for 
 
         big bucks and fake it."  Claimant indicated he has had a lot of 
 
         run-ins with Mr. Burriola and they have no use for each other.
 
         
 
              Under extensive cross-examination, claimant explained his 
 
         taking certain dependents on his tax return.
 
         
 
              Claimant said his plans are to stay with insurance 
 
         adjusting. He indicated this is easy work and his goal is to do 
 
         it full-time as he believes he has good potential to make money.  
 
         He also likes the insurance person he works for.  Claimant stated 
 
         he is not looking for another job and does not intend to look in 
 
         the future. Claimant related he feels he has the knowledge and 
 
         ability to make $20,000 to $30,000 per year.  Claimant made 
 
         approximately $20,000 at defendant employer.  Claimant said that 
 
         the insurance company for which he adjusts indicated claimant 
 
         should not have a second job.  Claimant testified he does not do 
 
         carpentry work now but can do this type of work.  He acknowledged 
 
         he built cabinets in his home beginning Christmas 1989 and 
 
         finished them in March 1990. Claimant explained why he went to 
 
         another doctor rather than return to Dr. Boulden in May 1988.  He 
 
         said Dr. Boulden's office told him that the doctor has signed off 
 
         claimant's case.
 
         
 
              Loren Prothe, vice president o  manufacturing for defendant 
 
         employer, described what defendant employer does as a 
 
         manufacturer.  He indicated defendant employer is always on top 
 
         of the newest safety and OSHA regulations and never refused an 
 
         employee medical treatment.  He did not believe claimant was 
 
         refused medical treatment in November of 1986.  He contends that 
 
         defendant employer never refused medical treatment to claimant. 
 
         Mr. Prothe initially described claimant as a likable person who 
 
         worked hard to satisfy, had a good attendance, and would give the 
 
         shirt off his back.  He then testified at length about claimant's 
 
         competence and workmanship, lack of honesty, attitude, lack of 
 
         trustworthiness, warnings and his suspension.  This witness left 
 
         little doubt as to claimant's credibility as far as he was 
 
         concerned.  He said he couldn't believe claimant's alleged 
 
         November 13, 1986 accident happened as claimant described.  He 
 
         related claimant's discriminatory remarks at work and claimant's 
 
         exaggerated war stories.  Prothe acknowledged defendant employer 
 
         is going to close on May 18, 1990.  He said there was a change in 
 
         ownership in July 1989.  Prothe said if claimant tried to call 
 
         Dr. Boulden in the spring of 1988 as claimant claims and could 
 
         not get a return call from the doctor, he would have allowed 
 
         claimant to go to a doctor of his choice.  He also said he would 
 
         not have helped claimant to see Dr. Boulden.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Patty McCollom, owner and president of Management Consultant 
 
         and Rehabilitation Company, described her business and the 
 
         process she goes through with the client and claimant, including 
 
         claimant's history.  McCollom referred to her reports and other 
 
         documents by her other employees regarding claimant.  McCollom 
 
         said claimant told her he had no intention of returning to 
 
         defendant employer and that claimant's goal was to become an auto 
 
         damage appraiser.  She said she supports claimant's choice.  She 
 
         said claimant obtained his GED at her company's recommendation. 
 
         She also provided claimant with some clothes to wear to court. 
 
         McCollom said Mr. Twedt of the Gay & Taylor Auto Appraisers 
 
         Company had no objection to claimant working for another company 
 
         as long as there is no conflict.  She said he, in fact, 
 
         encouraged it.  McCollom stated claimant could work as an auto 
 
         appraiser for $18,000 to $30,000 per year but claimant could only 
 
         work as an independent contractor like claimant is now doing.  
 
         She described the income of appraisers for other companies and 
 
         their income ranged from $18,000 to $34,060 per year.  McCollom 
 
         believes claimant can succeed.  She said claimant is motivated 
 
         and did everything they asked him to do.  McCollom said a back 
 
         fusion is not an impediment in the future in her experience as 
 
         she has dealt with other people in which case it was not an 
 
         impediment.  She did not know if claimant could make a living in 
 
         the auto salvaging business.  McCollom said claimant was earning 
 
         $8.38 per hour at the time of his injury and made $2,463.17 
 
         during the first two weeks beginning December 1989 to April 2, 
 
         1990 that he worked for Gay & Taylor, insurance adjusters, as an 
 
         independent contractor.
 
         
 
              William R. Boulden, M.D., an orthopedic surgeon, testified 
 
         by way of his deposition on April 5, 1990.that his first contact 
 
         with claimant was on February 5, 1987 per a referral from 
 
         defendant insurance company.  The doctor said he saw claimant on 
 
         February 26, 1987 and on that date wrote:
 
         
 
                  Therefore, I told him that it is just a soft tissue 
 
              strain and that his pain will get better if he can keep 
 
              exercising.  I have told him that his long term health is 
 
              going to be determined by what he does to his back.  I have 
 
              told him that if he does abusive lifting with his back, he 
 
              will continue to have symptoms.
 
         
 
                  Therefore, he has been on a leave of absence until the 
 
              10th, and I have recommended for him to return back to work 
 
              then.  I have told him that if he could use his back 
 
              properly, that he should be able to handle it.  If he does 
 
              abusive things, I am sure he will have recurrent back pain.
 
         
 
         (Jt. Ex. 18, p. 11)
 
         
 
              Dr. Boulden testified as to the further care of claimant and 
 
         understood claimant wasn't getting better so he recommended on 
 
         January 18, 1988 a work hardening program for claimant.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Dr. Boulden recommended claimant return to work on February 
 
         23, 1988 with restrictions set per his functional capacity 
 
         evaluation done on February 23, 1988, the instructions being:  no 
 
         bending, twisting with his body, to use his legs to either squat 
 
         with or pick up objects, to use his feet to turn rather than 
 
         twist with his back, and to lift weight only within the 
 
         restrictions of the capacity evaluation that claimant has (Jt. 
 
         Ex. 12, p. 13).
 
         
 
              Dr. Boulden referred to his April 6, 1988 notes concerning 
 
         claimant's phone call requesting an injection.  Dr. Boulden 
 
         indicated he tried to call claimant twice and there was no answer 
 
         or there was a busy signal.  When he finally got in touch with 
 
         the claimant, he indicated claimant had already gone to the 
 
         emergency room at Iowa Methodist Medical Center.  He said 
 
         claimant told him he had returned to work but lasted only three 
 
         days due to the pain.  Dr. Boulden said he then decided to do a 
 
         diskography which was done on May 23, 1988.  He said the test 
 
         showed a tear in the L5-S1 disc (Jt. Ex. 18, p. 15).
 
         
 
              Dr. Boulden then did an anterior fusion which was done 
 
         through the abdomen area (Jt. Ex. 21; Jt. Ex. 12, p. 19).  Dr. 
 
         Boulden indicated claimant did not do well in post-surgery 
 
         recovery and eventually went to the Iowa Methodist Pain Center 
 
         which enabled claimant to better cope with his pain.  Claimant's 
 
         work hardening was eventually discontinued and the doctor 
 
         recommended that claimant continue a chronic stabilization 
 
         exercise program within the vocational rehabilitation aspect and 
 
         restrictions found in the functional capacity evaluation (Jt. Ex. 
 
         12, p. 22).  Dr. Boulden opined claimant reached maximum recovery 
 
         on September 7, 1989.  Claimant's restrictions at that time were: 
 
         infrequent lifting of 15 pounds and frequent lifting of 10 pounds 
 
         and carrying of objects in a 10 pound range (Jt. Ex. 12, p. 23).
 
         
 
              Dr. Boulden opined claimant incurred a 15 percent disability 
 
         based on claimant's fusion of L5-S1 and causally connected it to 
 
         claimant's November 13, 1986 injury (Jt. Ex. 12, p. 23).  Dr. 
 
         Boulden said claimant's annulus disc tear could have been caused 
 
         by claimant's working with junk cars, carpentry and taking out 
 
         windows, dismantling cars, etc.  On February 23, 1988, Dr. 
 
         Boulden wrote:
 
         
 
                  As I have stated in the past I find nothing of 
 
              structural damage to his back.  I feel his symptoms that he 
 
              still presents with are myofascial in nature.  I told him 
 
              that he is now armed with the proper knowledge of how to use 
 
              his back, how to exercise it and I think getting him back to 
 
              work within the realm of the work hardening program would be 
 
              his best treatment.  I have signed off the patient at this 
 
              time.  I have little else to offer.
 
         
 
         (Jt. Ex. 18, p. 10)
 
         
 
              On February 15, 1990, Dr. Boulden wrote:
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                  I've previously rated his back out with a 15% 
 
              disability based on the fact of fusion.
 
                  
 
                  I feel this surgery was due to the work-related injury 
 
              that Mr. Foley sustained.
 
         
 
         (Jt. Ex. 18)
 
         
 
              On September 14, 1989, Thomas W. Bower, L.P.T., wrote:
 
         
 
              This clearly would place this gentleman into a category of 
 
              lightwork situation and more specifically, in a 
 
              sedentary/light category as defined as infrequently lifting 
 
              15 pounds, and frequently lifting 10 pounds, with carrying 
 
              of objects in the 10 pound range.  Some walking and standing 
 
              would be intermittent and possibly self-paced in this 
 
              program.
 
                  
 
                  This information should be used in terms of job 
 
              placement for this gentleman.
 
         
 
         (Jt. Ex. 15)
 
         
 
              Joint exhibit 20 reflects claimant's four,week pain 
 
         rehabilitation program completed on June 9, 1989 at Iowa 
 
         Methodist Pain Management Center.  Joint exhibit 19 reflects 
 
         information as to claimant's work hardening program completed by 
 
         September 12, 1989 at Iowa Methodist Medical Center.  On December 
 
         9, 1986, Joe F. Fellows, M.D., orthopedic surgeon, wrote that 
 
         claimant's CT scan on November 26, 1986 was negative and the 
 
         x-rays of his lumbar spine done on November 14, 1986 were within 
 
         normal limits (Jt. Ex. 25, p. 7).
 
             There is a workers' compensation claim investigative report 
 
         (Jt. Ex. 7) also attacking claimant's credibility.  It is lacking 
 
         in substance because the statements are general with basically no 
 
         reference in point of time as to many specific statements or 
 
         allegations as to events important to this alleged November 13, 
 
         1986 injury.
 
         
 
              Lillian Emily (Sandy) Foley, claimant's ex-wife testified by 
 
         way of her deposition taken on April 18, 1990.  She said she 
 
         contacted the insurance company after she and claimant broke up 
 
         in August of 1989 and indicated she had several contacts with the 
 
         insurance company and Attorney Cecil Goettsch since that time 
 
         concerning this case.  She indicated the initial purpose of her 
 
         call was to see if claimant was working as he was behind in his 
 
         child support.  Later, the contacts were involving claimant's 
 
         workers' compensation claim.  Sandy testified generally and 
 
         indicated claimant in 1989 hauled three, four or five cars a week 
 
         to the junk.  She said he had others helping also.  She stated he 
 
         used the torch to cut out car parts and cut up the cars.  She 
 
         thought claimant's physical abilities were the same before and 
 
         after his back surgery.  Sandy recalled without being specific 
 
         that claimant with others helping, converted a deck area into 
 
         part of the house in which she and claimant were living in 1988.  
 
         She indicated the front porch project was done by claimant and 
 
         others in the summer of 1989 and a basement remodeled by 
 
         installing paneling and insulation.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Later, she was questioned whether the porch project was done 
 
         in 1989 or 1988.  She ultimately concluded it was done in the 
 
         summer of 1988.  She was then asked if the porch project could 
 
         have been done in 1986 and she said she did not know.  Sandy 
 
         indicated claimant also did work for Bob Madden Construction 
 
         cleaning up new homes and hauling away the trash.  She agreed the 
 
         carport was built in 1986 prior to claimant's injury.  She 
 
         indicated her attitude of claimant is that he is an absolute 
 
         total jerk and feels very hostile toward him.  Sandy could not 
 
         recall any injury claimant suffered in a job or work over the 
 
         last ten years other than a few cuts and smashed fingers and 
 
         excluding the November 13, 1986 injury.  She said claimant 
 
         continued to complain of back pain every day from the day he had 
 
         surgery, September 1988, until he moved out of the house in 
 
         August 1989.  This witness' credibility is questionable.
 
         
 
                                  APPLICABLE LAW
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on November 13, 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).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of November 13, 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).
 
         
 
              Expert medical evidence must be considered with all other 
 
         evidence introduced bearing on the causal connection.  Burt, 247 
 
         Iowa 691, 73 N.W.2d 732.  The opinion of experts need not be 
 
         couched in definite, positive or unequivocal language.  Sondag v. 
 
         Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, the expert 
 
         opinion may be accepted or rejected, in whole or in part, by the 
 
         trier of fact.  Id. at 907.  Further, the weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish, 257 Iowa 516, 133 
 
         N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 N.W.2d 128.
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W.2d 899, 902 (1935) as follows:  "It is therefore 
 
         plain that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Iowa Code section 85.27 provides, in part:
 
         
 
                  For purposes of this section, the employer is obliged 
 
              to furnish reasonable services and supplies to treat an 
 
              injured employee, and has the right to choose the care.  The 
 
              treatment must be offered promptly and be reasonably suited 
 
              to treat the injury without undue inconvenience to the 
 
              employee.  If the employee has reason to be dissatisfied 
 
              with the care offered, the employee should communicate the 
 
              basis.of such dissatisfaction to the employer, in writing if 
 
              requested, following which the employer and the employee may 
 
              agree to alternate care reasonably suited to treat the 
 
              injury.  If the employer and employee cannot agree on such 
 
              alternate care, the commissioner may, upon application and 
 
              reasonable proofs of the necessity therefor, allow and order 
 
              other care.  In an emergency, the employee may choose the 
 
              employee's care at the employer's expense, provided the 
 
              employer or the employer's agent cannot be reached 
 
              immediately.
 
         
 
                                     ANALYSIS
 
         
 
              Claimant is a 43-year-old who has a ninth grade education 
 
         and obtained a GED during his period of rehabilitation.  He was 
 
         sent to an appraiser school by defendants and seemed satisfied in 
 
         that field.  Claimant appears to want to stay in the auto damage 
 
         appraisal field as his future work and anticipates making more 
 
         money in this field than he made with defendant employer.  
 
         Claimant had no intention of returning to work at defendant 
 
         employer after his back surgery.  The defendant employer is 
 
         closing or will be closed by the time this decision is finalized.
 
         
 
              There is obviously animosity between the parties and certain 
 
         witnesses.  Even though claimant began working for defendant 
 
         employer in 1980 and was a lead person a few days before his 
 
         injury, his employer had very little good to say about claimant. 
 
         There were considerable derogatory or negative comments by 
 
         defendant employer's vice president against claimant.  It is 
 
         obvious his testimony is attacking claimant's credibility which 
 
         is the key to several issues herein.
 
         
 
              Defendants contend claimant was not injured on the job or if 
 
         he was, claimant's surgery and current condition is not the 
 
         result of claimant's November 13, 1986 injury.  Defendants have 
 
         no evidence that an injury did not occur but cites alleged 
 
         incidences in which claimant was not, in their opinion, truthful.  
 
         There is considerable evidence that claimant was doing other 
 
         things and projects involving salvaging junk cars and building 
 
         projects at his home.  Defendants speculate that claimant could 
 
         have been injured doing these other activities.  Everyone can 
 
         speculate and guess, but the evidence is that claimant sought 
 
         medical attention for his incident that occurred on November 13, 
 
         1986.  Claimant has sustained his burden of proof that he injured 
 
         his low back while working for defendant employer on November 13, 
 
         1986.  Claimant has not had any history of injuries.  If 
 
         defendants had a smoking gun on this point, it isn't in the 
 
         record.
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Boulden opined claimant's surgery was related to his 
 
         work injury on November 13, 1986.  Dr.  Boulden was asked if 
 
         claimant could have injured his back in the junk car salvaging 
 
         business or carpentry or like work.  Dr. Boulden conjectured that 
 
         was possible.  Of course, anything is possible.  The evidence 
 
         shows claimant had considerable treatment resulting from his 
 
         November 13, 1986 injury.  Initially, the doctors found nothing.  
 
         No one suspected a herniated disc or like condition.  A CT scan 
 
         was normal.  As this agency sees very often, CT scans don't 
 
         always show the problem.  Dr. Boulden appears to have given up 
 
         but then ordered a diskogram that showed an L5-S1 tear.  This 
 
         isn't a herniated disc problem.  This obviously didn't show up in 
 
         the CT scan or x-rays because of its nature.  Claimant has had 
 
         low back problems since his November 13, 1986 injury.  Claimant 
 
         has sustained his burden of proof.  Dr. Boulden opined claimant 
 
         has a 15 percent disability to his back as a result of this 
 
         injury.  Dr. Boulden performed surgery on claimant's back as a 
 
         result of his November 13, 1986 injury.  The doctor used the word 
 
         disability but obviously he means impairment.  The deputy 
 
         determines the degree of disability, the doctor determines the 
 
         percent of impairment.
 
         
 
              The parties agree that claimant was off work a net of 
 
         126.714 weeks.  As there was a dispute as to whether the injury 
 
         arose out of and in the course of claimant's employment and 
 
         whether there was a causal  connection, the parties did not agree 
 
         as to any healing period or temporary total disability benefit 
 
         entitlement but agreed to claimant's net time off work.  In light 
 
         of the above findings on the arising out of and in the course of 
 
         claimant's employment and the causal connection issues, the 
 
         undersigned finds claimant incurred a sporadic healing period 
 
         beginning November 15, 1986 to and including September 7, 1989, 
 
         resulting in a net healing period of 126.714 weeks.  Dr. Boulden 
 
         testified that claimant reached maximum recovery on September 7, 
 
         1989 (Jt. Ex. 12, p. 22).
 
         
 
              At the time of claimant's injury he was in a business that 
 
         relied upon his ability to lift, reach, twist and bend.  It 
 
         appears this work would be classed as medium to heavy work.  
 
         Prior to this injury, claimant had been earning his living in 
 
         medium to heavy duty jobs.  This injury has taken claimant out of 
 
         this type of job market.  Claimant does not want to risk the 
 
         probability of incurring additional back injury because of his 
 
         condition and, surgery resulting from his November 13, 1986 
 
         injury.  Claimant has restrictions that would put him in a light 
 
         work situation (Jt. Ex. 15).
 
         
 
              Defendants' witness, the rehabilitation specialist, agreed 
 
         with claimant's choice of auto appraising as his future work.  
 
         She felt claimant could earn $18,000 to $30,000 per year.  
 
         Claimant's income with defendant employer was approximately 
 
         $20,000 per year. Although it appears claimant will have no loss 
 
         of income due to his injury, he does have a loss of earning 
 
         capacity.  The rehabilitation expert testified to claimant's 
 
         earning capacity. Loss of earning capacity equates to industrial 
 
         disability and this is only within the deputy's power.  The 
 
         rehabilitation expert can testify to loss of or gain in future 
 
         income but not earning capacity.  Income is only one factor in 
 
         determining claimant's industrial disability.  Claimant appears 
 
         to have motivation in some areas and in others he doesn't.  The 
 
         record is confusing and the undersigned believes claimant is not 
 
         entirely forthright when it comes to the extent of his car 
 
         salvaging or junk business.  It does appear his activity, 
 
         whatever it is, has not diminished or increased because of his 
 
         injury.  It appears he has help and equipment that enables him to 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         continue this type work, regardless of his impairment.  We must 
 
         keep in mind that claimant has only a 15 percent impairment.  He 
 
         is not a cripple.  Defendants tried to bring forth evidence of 
 
         claimant doing considerable carpentry work contending claimant 
 
         wasn't impaired if he was able to do this type work.  Defendants' 
 
         witness, claimant's ex-wife, obviously has an axe to grind 
 
         regarding this claimant.  She fully expressed her dislike of 
 
         claimant.  Her dates were inconsistent and confusing and she 
 
         really appeared to be picking dates of which she was not certain.  
 
         Lillian (Sandy) Foley is not a credible witness.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              It is a coincidence that claimant's injury occurred after he 
 
         came off his three day suspension.  Defendants contend he would 
 
         not have lasted on the job more than two weeks after his return. 
 
         If that is true, why was he taken back if defendants thought he 
 
         was so untruthful.  It is hard to believe that if claimant was as 
 
         bad as defendants now say he is, why was he a lead man just prior 
 
         to his injury and his three day suspension and kept so long in 
 
         his employment.  Defendants dwelled a long time on claimant's 
 
         credibility to muddy the water as to whether claimant was 
 
         injured. It appears defendants were willing to take claimant 
 
         back.  At least the evidence shows claimant did not want to go 
 
         back and there was no evidence that defendants would not have 
 
         taken him back.  They, in fact, took him back for a few days when 
 
         Dr. Boulden earlier released him around February 1988.
 
         
 
              Claimant seems to be approaching this car damage appraisal 
 
         job in a low key manner.  He indicated he is not making much 
 
         money at this time.  The rehabilitation expert indicated that, 
 
         although claimant was working part-time, the first two weeks that 
 
         he worked beginning mid-December 1989 to the date of April 2, 
 
         1990, claimant made $2,463.17 at Gay & Taylor Insurance 
 
         Adjusters.  The undersigned finds claimant's income potential is 
 
         as great, if not greater, than at the time of his injury.  If, in 
 
         fact, claimant is not making as much or more than he did at the 
 
         time of his injury, claimant could if he made the effort.  
 
         Claimant should increase his efforts.
 
         
 
              Taking into consideration claimant's age, education, medical 
 
         condition prior to the injury and after the injury, his present 
 
         medical condition, his 15 percent impairment to the body as a 
 
         whole, the location of his injury to his low back, the severity 
 
         of the injury, length of healing, claimant's motivation and 
 
         ability because of the injury to engage in employment for which 
 
         he is fitted, and all those other criteria in determining 
 
         industrial disability, the undersigned finds claimant has a 20 
 
         percent industrial disability.
 
         
 
              The remaining issue involves whether claimant is entitled to 
 
         85.27 medical benefits.  This issue was resolved for the most 
 
         part when the arising out of and in the course of employment and 
 
         the causal connection issues were determined above.  One 
 
         additional question within this issue was claimant's seeking care 
 
         at Iowa Methodist Hospital after having called Dr. Boulden for 
 
         medical care.  Claimant testified that he contacted Dr. Boulden 
 
         desiring an injection because his pain had become so severe.  
 
         Although Dr. Boulden testified he attempted to call the claimant 
 
         and was not able to reach claimant or claimant's phone was busy, 
 
         he indicated claimant had already gone for emergency care at Iowa 
 
         Methodist Medical Center.  Dr. Boulden, on February 23, 1988, had 
 
         indicated in a letter to the insurance carrier (Jt. Ex. 18, p. 
 
         10) that he had signed off the patient at that time and had 
 
         little else to offer him.  Mr. Prothe testified that if claimant 
 
         had tried to call Dr. Boulden as he claims and couldn't get a 
 
         return call, he would have allowed claimant to go to a doctor of 
 
         his choice.  Mr. Prothe also indicated he would not have helped 
 
         claimant see Dr. Boulden.  These events seemed to have occurred 
 
         in the spring of 1988.  Iowa Code section 85.27 provides in the 
 
         instance of an emergency that the employee may choose the 
 
         employee's care at the  employer's expense provided the employer 
 
         or the employer's agent cannot be reached immediately.  
 
         Considering the nature of the matter, Mr. Prothe's testimony, and 
 
         the evidence, the undersigned finds that defendants are 
 
         responsible for all of claimant's medical expenses, including the 
 
         cost of surgery and claimant's treatment at Iowa Methodist 
 
         Medical Center.
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant incurred a low back injury at work on November 
 
         13, 1986, when he was reaching for a bag of fertilizer and two 
 
         other bags of fertilizer fell on him resulting in his twisting 
 
         his back.
 
         
 
              2.  Claimant incurred an L5-S1 fusion as a result of his 
 
         November 13, 1986 work injury.
 
         
 
              3.  Claimant incurred a 15 percent impairment to his back as 
 
         a result of his November 13, 1986 work injury.
 
         
 
              4.  Claimant incurred restrictions as a result of his 
 
         November 13, 1986 work injury placing him in a sedentary-like 
 
         category restricting him to infrequent lifting of 15 pounds and 
 
         frequent lifting of 10 pounds, with carrying of objects in the 10
 
         pound range.
 
         
 
              5.  Claimant incurred a sporadic healing period beginning 
 
         November 15, 1986 to and including September 7, 1989, 
 
         encompassing a net of 126.714 weeks at the rate of $196.83.
 
         
 
              6.  Defendants are responsible for all of claimant's medical 
 
         bills.
 
         
 
              7.  Claimant has a 20 percent loss of earning capacity.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant's low back injury on November 13, 1986 arose out of 
 
         and in the course of his employment.
 
         
 
              Claimant's low back injury, L5-S1 fusion and 15 percent 
 
         impairment to his body as a whole, is causally connected to his 
 
         work injury on November 13, 1986.
 
         
 
              Claimant has a restriction to a sedentary-like category job, 
 
         which restriction is caused by his November 13, 1986 work injury.
 
         
 
              Claimant incurred a sporadic healing period beginning 
 
         November 15, 1986 to and including September 7, 1989, 
 
         encompassing a net of 126.714 weeks at the rate of $196.83.
 
         
 
              Defendants are responsible for claimant's medical bills.
 
         
 
              Claimant has a 20 percent industrial disability.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants shall pay unto claimant sporadic healing 
 
         period benefits at a rate of one hundred ninety-six and 83/100 
 
         dollars ($196.83) for the period beginning November 15, 1986 to 
 
         and including September 7, 1989, encompassing a net of one 
 
         hundred twenty-six point seven one four (126.714) weeks.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That defendants shall pay unto claimant one hundred (100) 
 
         weeks of permanent partial disability benefits at the rate of one 
 
         hundred ninety-six and 83/100 dollars ($196.83) beginning 
 
         September 8, 1989.
 
         
 
              That defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against the award for weekly 
 
         benefits previously paid.  Defendants previously paid fifty-six 
 
         point five seven one (56.571) weeks at two hundred fifteen and 
 
         26/100 dollars ($215.26) and one hundred two (102) weeks at two 
 
         hundred six and 22/100 dollars ($206.22).
 
         
 
              That defendants shall pay all of claimant's medical 
 
         expenses.
 
         
 
              That defendants shall pay interest on benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              That defendants shall pay the costs of this action, pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants shall file an activity report upon payment 
 
         of this award as required by this agency, pursuant to Division of 
 
         Industrial Services Rule 343-3.1
 
         
 
              Signed and filed this 25th day of May, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            BERNARD J. O'MALLEY
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr Channing Dutton
 
         Attorney at Law
 
         1200 35th St Ste 500
 
         West Des Moines, IA  50265
 
         
 
         Mr Cecil L Goettsch
 
         Attorney at Law
 
         1100 Des Moines Bldg
 
         Des Moines, IA  50309
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1100; 5-1108.50;
 
                                            5-1803; 2503
 
                                            Filed May 25, 1990
 
                                            Bernard J. O'Malley
 
                                        
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROBERT FOLEY,
 
         
 
              Claimant,
 
                                                  File No. 838945
 
         vs.
 
         
 
         ROSS DANIELS, INC.,                   A R B I T R A T I 0 N
 
         
 
              Employer,                           D E C I S I 0 N
 
         
 
         and
 
         
 
         FARMLAND MUTUAL INSURANCE,
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         5-1100
 
         
 
              Found claimant's injury arose out of and in the course of 
 
         his employment.
 
         
 
         5-1108.50
 
         
 
              Found claimant's work injury caused claimant's disability 
 
         and medical condition.
 
         
 
         5-1803
 
         
 
              Claimant awarded 20% industrial disability benefits.
 
         
 
         2503
 
         
 
              Claimant awarded 85.27 medical benefits.  Claimant went to 
 
         hospital after defendants' chosen doctor had signed off case and 
 
         then wasn't available for subsequent call.  Held the emergency 
 
         situation allowed claimant to seek help without employer's 
 
         approval.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
           
 
                        
 
            CARL E. BRANDT,       
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                    File No. 838975
 
            GAGNON INCORPORATED, NATIONAL   
 
            SERVICE INDUSTRIES, INC.,                 A P P E A L
 
            NORTH BROTHERS CO., and VAUGHN  
 
            NORTH INSULATION COMPANY,               D E C I S I O N
 
                        
 
                 Employer,   
 
                        
 
            and         
 
                        
 
            GREAT AMERICAN INSURANCE   
 
            COMPANIES and LIBERTY MUTUAL    
 
            INSURANCE CO.,   
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.
 
            
 
                                     ISSUES
 
            
 
            The issues on appeal are:  Whether claimant has proved that 
 
            he is disabled because of an occupational disease resulting 
 
            from an injurious exposure while in the employment of either 
 
            of the defendant employers and whether claimant has proved 
 
            that he was injuriously exposed to asbestos while working 
 
            for defendant employer Vaughn North.
 
            findings of fact
 
            
 
            The findings of fact contained in the proposed agency 
 
            decision filed November 4, 1991 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.  Segments designated by 
 
            brackets ([ ]) indicate language that is in addition to the 
 
            language of the proposed agency decision.
 
            
 
                 Carl E. Brandt is a 60-year-old married man who lives 
 
            in Des Moines, Iowa.  Carl is severely disabled and receives 
 
            Social Security disability benefits.  Carl's physical 
 
            problems include his vision, chronic obstructive pulmonary 
 
            disease in the nature of bronchitis or emphysema, an 
 
            enlarged heart with possible congestive heart failure, 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            obesity and asbestosis.
 
            
 
                 Carl has an eighth grade education.  He is not a 
 
            proficient reader or writer.  Carl has a 40-year history of 
 
            smoking approximately two packs of cigarettes per day and of 
 
            heavy alcoholic beverage consumption.  His height is five 
 
            feet, eleven inches and his weight is 258 pounds.
 
            
 
                 The pertinent part of Carl's work life from 
 
            approximately 1947 until his retirement in 1986 was spent 
 
            working as an insulator in the construction industry.  He 
 
            commonly worked with asbestos-containing materials.  During 
 
            the earlier years of his career, asbestos was a very common 
 
            ingredient in insulating materials, especially those used in 
 
            high temperature applications.  As the hazards of asbestos 
 
            became better known, its use became less common and, by the 
 
            mid-1970's, it was seldom, if ever, used in most insulating 
 
            materials.  In line with the change in the industry, Carl 
 
            Brandt's exposure to asbestos-containing materials declined 
 
            as use of the substance was reduced.  In many new 
 
            construction projects, there was no asbestos whatsoever.  In 
 
            retrofitting or renovation type of projects, there continued 
 
            to be some exposure to asbestos-containing materials which 
 
            had been installed during previous years and which were 
 
            disturbed in the current project.
 
            
 
                 The claim in this case is made against two of Carl's 
 
            former employers.  He worked for Gagnon, Inc., at the Iowa 
 
            State University heating plant in Ames, Iowa, a total of 40 
 
            hours during the period of time running from May 8 through 
 
            May 14, 1985, for which he was paid $16.17 per hour 
 
            (claimant's exhibit 5).  Carl's function was to install a 
 
            nonasbestos-containing pipe insulation onto soot blower 
 
            pipes which were attached to the number 5 boiler.  As 
 
            established by the testimony of corroborating witnesses 
 
            Rasmussen and Donaldson, it was necessary for Carl to cut 
 
            into the existing insulation on the soot blower pipes in 
 
            order to obtain a smooth surface for placement of the new 
 
            insulation.  Testimony from Rasmussen and claimant's 
 
            exhibits 10 and 10A show that in 1987 or 1988, when the 
 
            insulation on those pipes was tested in order to determine 
 
            if it contained asbestos, the tests from the east pipe all 
 
            contained asbestos material, while the samples from the west 
 
            pipe showed some of the insulation to be non-asbestos and 
 
            some to have been asbestos.  It is noted that the testing 
 
            was performed after the time when Carl installed 
 
            asbestos-free insulation on a part of the soot blower 
 
            piping.
 
            
 
                 As established by testimony from Mary Finn, Rasmussen 
 
            and other witnesses, it is not possible to accurately 
 
            identify asbestos-containing materials visually.  A 
 
            microscopic examination is required.  There are, however, 
 
            some characteristics of insulation materials which give some 
 
            indication of whether or not the material contains asbestos.  
 
            Some of those characteristics include whether it was used in 
 
            a high temperature application, the age of the material, its 
 
            date of installation, its color, texture and fiber content.  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            *****
 
            
 
                 Carl testified at hearing that he trimmed existing 
 
            insulation which, from his observation appeared to contain 
 
            asbestos, in order to match it to the new insulation which 
 
            he was installing at the Iowa State University plant.  His 
 
            opinion is corroborated by the test results contained in 
 
            exhibits 10 and 10A.  Those test results show asbestos to 
 
            have been a common insulation material in the plant.  It is 
 
            probable that the original insulation on the soot blower 
 
            pipes of the number 5 boiler were entirely asbestos, that 
 
            some of the asbestos-containing insulation was removed in 
 
            the project in which Carl participated and that the 
 
            nonasbestos-containing insulation shown in the tests is that 
 
            which Carl installed.  It is therefore found to be probable 
 
            that Carl did inhale asbestos fibers, as he testified, while 
 
            employed by Gagnon, Inc., at the Iowa State University 
 
            plant.  As corroborated by exhibit 9A at page A-21, 
 
            claimant's testimony regarding the use of an 
 
            asbestos-containing cement is found to be correct.  It is 
 
            further found that the amount of exposure from that incident 
 
            was quite small in comparison to the exposures he 
 
            experienced during the early years of his career.  It is 
 
            further found that the exposure did not have any significant 
 
            impact upon Carl's asbestosis.
 
            
 
                 Carl was employed by Vaughn North Insulation Company, 
 
            also sometimes known as Services Industries, Inc., or North 
 
            Brothers, during the period of time running from August 12, 
 
            1985, through September 20, 1985 (claimant's exhibit 2, page 
 
            4).  Carl was paid at the rate of $16.17 per hour for his 
 
            work.  The project was at the Northern Natural Gas facility 
 
            near Redfield, Iowa.  Carl's function was to work as part of 
 
            a crew which was re-insulating tanks from which the 
 
            previously used insulating material had been removed.  As 
 
            established by testimony from Carl and other workers at the 
 
            scene, the removal process had not been absolutely complete 
 
            in the sense that some debris from the former insulation 
 
            remained on the ground around the tanks and had to be 
 
            cleaned up.  Carl and the other workers walked in that 
 
            material, created dust and inhaled the dust.  Similar 
 
            insulation materials were likewise found in the building 
 
            where Carl and the others ate their lunch.  The purpose of 
 
            the re-insulation project was sometimes referred to in the 
 
            record as removal of asbestos-containing insulation.  
 
            According to witness Kenneth Olson, the project foreman Bob 
 
            Yeager, related to him that asbestos had been removed from 
 
            the tanks.  In its answers to interrogatories, the response 
 
            to interrogatory number 7 indicates that there was an 
 
            asbestos removal period (claimant's exhibit 2).  The results 
 
            of the test performed by Mary Finn, a qualified occupational 
 
            hygienist, showed that asbestos fibers were present during 
 
            the removal process (exhibit O).  Finn's testimony 
 
            establishes that the removal process was performed in a 
 
            manner which she considered to be correct and that the level 
 
            of exposure during the removal process was in a 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            concentration which did not violate any of the then-existing 
 
            OSHA standards.  It is noted that one of the exposures, 
 
            namely that of Mark McLenan on August 30, 1984, was in 
 
            excess of what is now the current standard for exposure.  It 
 
            is further noted that her testing was performed during a wet 
 
            removal process.  The substance was no longer wet when 
 
            claimant and the other insulators walked through it.  It is 
 
            therefore found that the testimony of claimant and some of 
 
            the other workers on his crew which indicated that the 
 
            insulating materials which remained on the site appeared to 
 
            contain asbestos is corroborated by Finn's test results 
 
            showing the presence of asbestos at that same location.  It 
 
            is therefore found that Carl Brandt did inhale asbestos 
 
            fibers while working for Vaughn North at the Redfield, Iowa, 
 
            Northern Natural Gas facility as Brandt related at hearing.  
 
            It is further found that the level of exposure was small in 
 
            comparison to the exposures which Brandt had experienced 
 
            earlier in his career and that it did not have any 
 
            significant impact upon his asbestosis disease.
 
            
 
                 According to Carl's testimony, he developed noticeable 
 
            breathing problems in approximately 1985 and one of the 
 
            first things he considered was that the problem might have 
 
            been caused by asbestos (defendants' exhibit A, page 126).  
 
            The nature of Carl's work was that he worked out of the 
 
            union hall for a variety of employers whenever work was 
 
            available.  He had been off work during 1986 prior to the 
 
            time he was diagnosed as having asbestosis and that period 
 
            of being off work was due to a lack of work being available.  
 
            He never turned down a job due to breathing problems, but 
 
            felt that in 1986 he was approaching the point that he would 
 
            have been limited in his ability to accept jobs (defendants' 
 
            exhibit A, pages 160-162).
 
            
 
                 As a result of a referral from his family physician, 
 
            Wade S. Brantley, D.O., Carl was seen at the Lutheran 
 
            Hospital Asbestos Clinic on August 13, 1986 (joint exhibit 
 
            1, pages 2, 3, 110, 111, 114, 115, 116 and 117).  Pulmonary 
 
            specialist Randall Hanson, M.D., diagnosed claimant as 
 
            having a combined obstructive/restrictive type of pulmonic 
 
            process, most compatible with chronic bronchitis and 
 
            emphysema and with a significant component of interstitial 
 
            lung disease which was compatible with asbestosis.  Dr. 
 
            Hanson recommended follow-up chest x-ray, sputum cytology, 
 
            and pulmonary function tests to be performed every six 
 
            months in order to monitor whether claimant's disease 
 
            process was progressing.  He likewise recommended that 
 
            claimant not work in environments where he might be exposed 
 
            to further asbestos.  In addition, the chest x-rays showed 
 
            mild cardiomeglia.  Pulmonary function tests showed mild to 
 
            moderate obstructive airways disease and markedly reduced 
 
            total lung capacity.  In a subsequent report dated November 
 
            17, 1990, Dr. Hanson confirmed that Carl has asbestosis 
 
            which causes permanent impairment and that he also has 
 
            chronic bronchitis/emphysema from cigarette smoking.  He 
 
            indicated that claimant has a mild to moderate impairment of 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            which 30-50 percent was due to asbestosis (joint exhibit 1, 
 
            page 24).  In that same report, Dr. Hanson stated that, when 
 
            he saw Carl in 1986, he did not place any limitations on the 
 
            amount of work which Carl could be performing due to his 
 
            impairment.  He stated that he felt Carl was capable of 
 
            working as an insulator or in any similar occupation based 
 
            upon the tests which were performed.
 
            
 
                 Claimant sought treatment at the University of Iowa 
 
            Hospitals and Clinics in June 1987.  His predominant symptom 
 
            of shortness of breath with exertion was again noted.  Carl 
 
            was diagnosed as having a mild obstructive pulmonary defect 
 
            as well as asbestosis.  It was noted that his pulmonary 
 
            function was reasonably well preserved.  The note further 
 
            indicates that claimant's symptoms with exertion are due in 
 
            part to his history of smoking and obesity.  It was 
 
            indicated that Carl should not experience any further 
 
            asbestos exposure and for that reason should be considered 
 
            unable to continue in his work as an insulator (joint 
 
            exhibit 1, page 5).  The pulmonary function report indicates 
 
            moderately severe obstructive ventilatory defect (joint 
 
            exhibit 1, page 83).  Carl was seen again on March 22, 1990, 
 
            at which time the prior diagnoses were confirmed.  It was 
 
            reported that the pulmonary function tests and x-rays showed 
 
            mild worsening of his condition since June of 1987 (joint 
 
            exhibit 1, pages 18 and 19).
 
            
 
                 Dr. Hanson was deposed on May 24, 1990, with regard to 
 
            his personal knowledge of claimant's case.  Dr. Hanson had 
 
            not reviewed other records and reports.  At that time, Dr. 
 
            Hanson indicated that as far as claimant's asbestosis was 
 
            concerned, the most significant features of the initial 
 
            pulmonary function test were the decreased total lung 
 
            capacity and residual volume (defendants' exhibit B, pages 
 
            57 and 58).  Dr. Hanson explained that chronic 
 
            bronchitis/emphysema are interchangeable terms and 
 
            constitute an obstructive defect.  He explained that 
 
            asbestosis produces a restrictive defect and that part of 
 
            claimant's restrictive defect was due to his weight.  Dr. 
 
            Hanson explained that claimant's bronchitis and emphysema 
 
            are both due to smoking (defendants' exhibit B, pages 
 
            59-62).  Dr. Hanson was unwilling to state that claimant's 
 
            asbestosis had progressed (defendants' exhibit B, pages 39, 
 
            40, 47 and 48).  Dr. Hanson explained that, where the 
 
            condition of asbestosis is mild, the patient can be 
 
            asymptomatic.  He interpreted claimant's disease in 1986 as 
 
            being mild to moderate.  He attributed claimant's 1986 
 
            symptoms equally to his weight, state of conditioning, 
 
            cardiac disease, obstructive airway disease and asbestosis 
 
            (defendants' exhibit B, pages 75 and 76).  Dr. Hanson 
 
            explained that claimant's x-rays showed mild heart 
 
            enlargement which would be compatible with hypertension and 
 
            heart failure (defendants' exhibit B, pages 68-70). ***** 
 
            [Dr. Hanson wrote on November 17, 1990 that claimant was 
 
            capable of working as an insulator or any similar occupation 
 
            and that claimant's alleged exposure to asbestos in 1985 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            would not have contributed significantly to the development 
 
            of claimant's asbestosis.  (Joint Exhibit 1, page 24)]
 
            
 
                 Carl's records have also been evaluated by Gregory A. 
 
            Hicklin, M.D., a pulmonary medicine specialist who is a 
 
            partner with Dr. Hanson.  Dr. Hicklin felt that claimant 
 
            clearly had asbestosis and also has congestive heart failure 
 
            (defendants' exhibit C, page 13).  Dr. Hicklin, having the 
 
            opportunity to review pulmonary function tests performed 
 
            subsequently to the ones seen by Dr. Hanson in 1986, stated 
 
            that the subsequent tests show Dr. Hanson's initial 
 
            assessment of a significant restrictive defect to have been 
 
            incorrect since the subsequent tests have produced normal 
 
            results in the areas of total lung capacity and residual 
 
            volume (defendants' exhibit C, pages 23, 24 and 28-32).  Dr. 
 
            Hicklin stated that the changes in claimant's chest x-rays 
 
            which have occurred during the period of 1986-1990 are more 
 
            likely due to his heart disease than to asbestosis.  He 
 
            stated that there are no changes in the pulmonary function 
 
            tests which show the asbestosis to be progressing during 
 
            that same period of time, but that the tests do show an 
 
            increase in the obstructive airway disease (defendants' 
 
            exhibit C, pages 21, 22 and 28-32).  Dr. Hicklin opined 
 
            that, based upon the pulmonary function tests, the condition 
 
            of claimant's lungs would probably permit him to work as an 
 
            insulator, but that he may have some limitations.  He stated 
 
            that claimant's primary limiting factor is probably his 
 
            heart (defendants' exhibit C, pages 24-26).
 
            
 
                 Claimant was also evaluated by pulmonary specialist 
 
            Louis W. Burgher, M.D.  Dr. Burgher expressed the opinion 
 
            that claimant's asbestosis had not progressed during the 
 
            period of 1987-1990 (defendants' exhibit D, pages 28-29).  
 
            Dr. Burgher felt that claimant had an obstructive defect, 
 
            but not a restrictive defect.  He stated that the 
 
            obstructive airway disease is compatible with claimant's 
 
            history of smoking (defendants' exhibit D, pages 40 and 
 
            46-49).  Dr. Burgher opined that claimant has some 
 
            impairment as the result of his obstructive airway disease, 
 
            but that the impairment is not large.  He felt that claimant 
 
            should have the capacity to perform a normal labor job 
 
            according to the results of the 1987 exercise test and that 
 
            he should be able to work as an insulator (defendants' 
 
            exhibit D, pages 60-62).  Dr. Burgher stated that virtually 
 
            all of claimant's pulmonary impairment is due to smoking 
 
            (defendants' exhibit D, page 64).  Dr. Burgher also 
 
            indicated that claimant's pulmonary function impairment is 
 
            worsened by his congestive heart failure condition 
 
            (defendants' exhibit D, pages 45 and 70).
 
            
 
                 Based primarily upon the foregoing, as well as the 
 
            other evidence in the record, it is found that Drs. Burgher 
 
            and Hanson are correct in their assessment that the majority 
 
            of Carl's pulmonary functional impairment is a result of 
 
            smoking or causes other than asbestosis.  While Carl clearly 
 
            has asbestosis which resulted from his career as an 
 
            insulator, there is no showing in the record that the 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            asbestosis has caused him to become actually incapacitated 
 
            from performing his work as an insulator.  To the contrary, 
 
            Drs. Burgher, Hicklin and Hanson all indicated that he could 
 
            probably work as an insulator in spite of his pulmonary 
 
            condition.  When it is considered that the majority of the 
 
            impairment from his pulmonary condition results from 
 
            smoking, rather than asbestosis, it is clear that the 
 
            asbestosis has not caused him to become incapacitated from 
 
            performing work as an insulator.
 
            
 
                 It is found that Carl Brandt is now disabled from 
 
            working as an insulator, but that the vast majority of the 
 
            disability is a result of his obstructive airway disease 
 
            which was caused by years of smoking, his cardiac disease 
 
            and obesity.  While Carl's shortness of breath symptoms are 
 
            in part due to his asbestosis condition, that part is found 
 
            to have no significant impact on his ability to work.  The 
 
            more recent pulmonary function tests clearly show that there 
 
            is minimal, if any, restrictive abnormality which can be 
 
            attributed to asbestosis.
 
            
 
                 The recommendation from Dr. Hanson that claimant obtain 
 
            regular follow-up examinations to monitor his asbestosis 
 
            condition is found to be correct and appropriate.  The 
 
            condition has the potential to progress.  For these reasons, 
 
            the services which claimant has received at Iowa Lutheran 
 
            Hospital and the University of Iowa Hospitals and Clinics 
 
            are found to be related to and incurred in treatment of his 
 
            occupational disease of asbestosis.  *****
 
            
 
                             CONCLUSIONS OF LAW
 
            
 
                 Iowa workers' compensation law distinguishes 
 
            occupational diseases from work injuries.  An occupational 
 
            disease is a disease which arises out of and in the course 
 
            of the employee's employment.  The disease must have a 
 
            direct causal connection with the employment and must follow 
 
            as a natural incident from injurious exposure occasioned by 
 
            the nature of the employment.  While the disease need not be 
 
            foreseeable or expected, after its contraction, it must 
 
            appear to have had its origin in a risk connected with the 
 
            employment and to have resulted from that risk.  A disease 
 
            which follows from a hazard to which an employee has or 
 
            would have been equally exposed outside of the occupation is 
 
            not a compensable occupational disease.
 
            
 
                 The claimant need meet only two basic requirements to 
 
            prove causation of an occupational disease.  First, the 
 
            disease must be causally related to the exposure to the 
 
            harmful conditions in the field of employment.  Second, the 
 
            harmful conditions must be more prevalent in the employment 
 
            than in everyday life or other occupations.  Iowa Code 
 
            section 85A.8; McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).
 
            
 
                 Where an employee is injuriously exposed to hazardous 
 
            conditions producing occupational disease while employed by 
 
            several successive employers, the employer where the 
 
            employee was last injuriously exposed is liable for the 
 
            total disability.  Doerfer Div. of CCA v. Nicol, 359 N.W.2d 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            428 (Iowa 1984).
 
            
 
                 To be compensable, an aggravation of an occupational 
 
            disease must be more than a temporary aggravation curable by 
 
            removal from the exposure.  McNeil v. Grove Feed Mill, II 
 
            Iowa Industrial Commissioner Report 261 (App. 1981).
 
            Iowa Code section 85A.8 provides:
 
               Occupational diseases shall be only those diseases which 
 
            arise out of and in the course of the employee's employment.  
 
            Such diseases shall have a direct causal connection with the 
 
            employment and must have followed as a natural incident 
 
            thereto from injurious exposure occasioned by the nature of 
 
            the employment.  Such disease must be incidental to the 
 
            character of the business, occupation or process in which 
 
            the employee was employed and not independent of the 
 
            employment.  Such disease need not have been foreseen or 
 
            expected but after its contraction it must appear to have 
 
            had its origin in a risk connected with the employment and 
 
            to have resulted from that source as an incident and 
 
            rational consequence.  A disease which follows from a hazard 
 
            to which an employee has or would have been equally exposed 
 
            outside of said occupation is not compensable as an 
 
            occupational disease.
 
            
 
            Iowa Code section 85A.5 provides:
 
               
 
               All employees subject to the provisions of this chapter 
 
            who shall become disabled from injurious exposure to an 
 
            occupational disease herein designated and defined within 
 
            the conditions, limitations and requirements provided 
 
            herein, shall receive compensation, reasonable surgical, 
 
            medical, osteopathic, chiropractic, physical rehabilitation, 
 
            nursing and hospital services and supplies therefor, and 
 
            burial expenses as provided in the workers' compensation law 
 
            of Iowa except as otherwise provided in this chapter.
 
               
 
               If, however, an employee incurs an occupational disease 
 
            for which the employee would be entitled to receive 
 
            compensation if the employee were disabled as provided 
 
            herein, but is able to continue in employment and requires 
 
            medical treatment for said disease, then the employee shall 
 
            receive reasonable medical services therefor.
 
            Iowa Code section 85A.4 provides:
 
               
 
               Disablement as that term is used in this chapter is the 
 
            event or condition where an employee becomes actually 
 
            incapacitated from performing the employee's work or from 
 
            earning equal wages in other suitable employment because of 
 
            an occupational disease as defined in this chapter in the 
 
            last occupation in which such employee is injuriously 
 
            exposed to the hazards of such disease.
 
            The first issue to be discussed is whether claimant has 
 
            proved that he is disabled as defined in section 85A.4, 
 
            supra.  Based upon the evidence in this case, particularly 
 
            the findings of Drs. Hanson, Hicklin and Burgher, claimant 
 
            has shown that he does have asbestosis.  Claimant must prove 
 
            that he is disabled by his asbestosis.  Claimant has not met 
 
            his burden of proof.  Drs. Burgher, Hicklin and Hanson all 
 
            indicated that claimant could work as an insulator.
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            Claimant argues that claimant could not earn equal wages in 
 
            other suitable employment but the only evidence claimant 
 
            cites in his appeal brief to support this argument is 
 
            claimant's testimony.  Apparently the evidence claimant 
 
            relies upon is the following testimony:
 
            Q.  Do you feel that you could do any type of work now?
 
            A.  No.
 
            Q.  Why Not?
 
            A.  Well, I just can't breathe that well that-- I can't do 
 
            very much walking.
 
            
 
            (Tr., pp. 61-62)
 
            
 
            This testimony falls far short of meeting claimant's burden 
 
            of proof.  Claimant's inability to earn wages may be due to 
 
            breathing difficulty but claimant's breathing difficulties 
 
            are attributable to his obstructive airway disease, his 
 
            cardiac disease and obesity.  Dr. Hanson explained that 
 
            asbestosis produces a restrictive defect.  Claimant's 
 
            breathing difficulties are not caused by his asbestosis.  It 
 
            is also noted that Dr. Hanson felt that claimant was capable 
 
            of working as an insulator or any similar occupation.  (Jt. 
 
            Ex. 1, p. 24)
 
            Claimant has not proved that he is incapacitated from 
 
            performing his work or from earning equal wages in other 
 
            suitable employment because of his asbestosis.
 
            The next issue to be resolved is whether claimant has proved 
 
            that he was injuriously exposed to asbestos while working 
 
            for defendant employer Vaughn North.  Lay testimony from 
 
            claimant and his coworkers indicates that asbestos was 
 
            present.  Dr. Finn's test showed that asbestos fibers were 
 
            present during the removal process where claimant worked.  
 
            The job that claimant was performing was a job that can 
 
            reasonably be said that asbestos would be present.  
 
            Claimant's exposure to asbestos with Vaughn North could be 
 
            the possible cause of his asbestosis.  See McSpadden, 288 
 
            N.W.2d 181 at 190.  Claimant has proved that he was 
 
            injuriously exposed to asbestos while working for defendant 
 
            employer Vaughn North.
 
            Section 85A.5, supra, provides that claimant is entitled to 
 
            receive reasonable medical services for his occupational 
 
            disease.  Claimant was last injuriously exposed to asbestos 
 
            while working for defendant employer Vaughn North.  
 
            Defendant employer Vaughn North is liable for claimant's 
 
            medical services.  See Iowa Code section 85A.10.
 
            WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                   ORDER
 
            
 
            THEREFORE, it is ordered:
 
            That the claimant's claim for weekly compensation based upon 
 
            disability resulting from an occupational disease of 
 
            asbestosis is denied.
 
            
 
                 That Vaughn North Insulation Company, National Services 
 
            Industries, Inc., North Brothers Company and Liberty Mutual 
 
            Insurance Company pay claimant's expenses pursuant to 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            section 85A.5 as follows:
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
                 Iowa Lutheran Hospital              $ 1,235.12
 
                 University of Iowa Hospitals          2,182.75
 
                 Total                               $ 3,417.87
 
            
 
            That claimant and defendant Vaughn North Insulation Company 
 
            shall share equally the costs of the appeal including 
 
            transcription of the hearing.  Defendant Vaughn North 
 
            Insulation Company shall pay all other costs.
 
            
 
            Signed and filed this ____ day of March, 1993.
 
            
 
            
 
            
 
            
 
                                      ________________________________
 
                                               BYRON K. ORTON
 
                                         INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Frank Watson, Jr.
 
            Attorney at Law
 
            410 Hubbell Building
 
            Ninth and Walnut
 
            Des Moines, Iowa  50309
 
            
 
            Mr. Jack W. Rogers
 
            Attorney at Law
 
            2700 Westown Parkway
 
            Suite 300
 
            W. Des Moines, Iowa  50265
 
            
 
            Mr. Jon K. Hoffmann
 
            Mr. Richard G. Book
 
            Attorneys at Law
 
            500 Liberty Building
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                           1401.40; 1803; 2203; 2501
 
                                           Filed March 29, 1993
 
                                           Byron K. Orton
 
                                           MGT
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
           
 
                        
 
            CARL E. BRANDT,       
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                    File No. 838975
 
            GAGNON INCORPORATED, NATIONAL   
 
            SERVICE INDUSTRIES, INC.,                 A P P E A L
 
            NORTH BROTHERS CO., and VAUGHN  
 
            NORTH INSULATION COMPANY,               D E C I S I O N
 
                        
 
                 Employer,   
 
                        
 
            and         
 
                        
 
            GREAT AMERICAN INSURANCE   
 
            COMPANIES and LIBERTY MUTUAL    
 
            INSURANCE CO.,   
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            
 
            1402.40; 1803; 2203; 2501
 
            
 
                 Claimant clearly had asbestosis, an occupational 
 
            disease, as a result of over 30 years' work as an insulator.
 
            
 
                 Disablement is defined in section 85A.4.  Claimant 
 
            failed to prove that he was actually incapacitated from 
 
            performing work in the occupation in which the occupational 
 
            disease was contracted or was also incapacitated from 
 
            earning equal wages in other suitable employment.  
 
            Claimant's incapacity to work was caused by sources other 
 
            than his occupational disease.  These other sources were 
 
            obstructive airway disease, cardiac disease and obesity.
 
            
 
                 Sixty-year-old claimant, who was severely disabled by a 
 
            number of conditions, was denied any disability benefits 
 
            since the evidence failed to show that the occupational 
 
            disease was a significant factor in producing his 
 
            disability.  However, claimant was awarded medical benefits 
 
            under section 85A.5 from the employer who provided the last 
 
            injurious exposure.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CARL E. BRANDT,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 838975
 
            GAGNON INCORPORATED, NATIONAL :
 
            SERVICE INDUSTRIES, INC.,     :      A R B I T R A T I O N
 
            NORTH BROTHERS CO., and VAUGHN:
 
            NORTH INSULATION COMPANY,     :         D E C I S I O N
 
                                          :
 
                 Employers,               :
 
                                          :
 
            and                           :
 
                                          :
 
            GREAT AMERICAN INSURANCE      :
 
            COMPANIES and LIBERTY MUTUAL  :
 
            INSURANCE CO.,                :
 
                                          :
 
                 Insurance Carriers,      :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Carl E. 
 
            Brandt against his former employers, hereinafter referred to 
 
            as Gagnon and Vaughn North, based upon the occupational 
 
            disease asbestosis which he has contracted.
 
            
 
                 The case presents a multitude of issues including 
 
            whether Brandt's occupational disease arose out of and in 
 
            the course of employment with either of the alleged 
 
            employers; the rate of compensation to be paid in the event 
 
            of an award; the extent of permanent disability and the 
 
            impact of section 85A.7 on the amount of any compensation 
 
            for permanent disability; whether there has been a lack of 
 
            notice under section 85A.18; defenses found in section 
 
            85A.13 and also the defense of intentional injury pursuant 
 
            to section 85.16.  Claimant contends that he is totally 
 
            disabled.
 
            
 
                 The case was heard at Des Moines, Iowa, on June 12, 
 
            1991.  The evidence consists of joint exhibits 1 and 2, 
 
            claimant's exhibits 1 through 17, defendants' exhibits A 
 
            through L, N, O and P, and Gagnon exhibits A, B, C, D, E, F, 
 
            G (four parts) and H.  The record also contains testimony 
 
            from Carl E. Brandt, Charlotte Brandt, Raymond E. Kooker, 
 
            Kenneth Olson, Ronald Rasmussen, Dennis Donaldson, Donald 
 
            Curry, Ronald F. Gagnon and Mary Finn.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            following findings of fact are made.
 
            
 
                 Carl E. Brandt is a 60-year-old married man who lives 
 
            in Des Moines, Iowa.  Carl is severely disabled and receives 
 
            Social Security disability benefits.  Carl's physical 
 
            problems include his vision, chronic obstructive pulmonary 
 
            disease in the nature of bronchitis or emphysema, an 
 
            enlarged heart with possible congestive heart failure, 
 
            obesity and asbestosis.
 
            
 
                 Carl has an eighth grade education.  He is not a 
 
            proficient reader or writer.  Carl has a 40-year history of 
 
            smoking approximately two packs of cigarettes per day and of 
 
            heavy alcoholic beverage consumption.  His height is five 
 
            feet, eleven inches and his weight is 258 pounds.
 
            
 
                 The pertinent part of Carl's work life from 
 
            approximately 1947 until his retirement in 1986 was spent 
 
            working as an insulator in the construction industry.  He 
 
            commonly worked with asbestos-containing materials.  During 
 
            the earlier years of his career, asbestos was a very common 
 
            ingredient in insulating materials, especially those used in 
 
            high temperature applications.  As the hazards of asbestos 
 
            became better known, its use became less common and, by the 
 
            mid-1970's, it was seldom, if ever, used in most insulating 
 
            materials.  In line with the change in the industry, Carl 
 
            Brandt's exposure to asbestos-containing materials declined 
 
            as use of the substance was reduced.  In many new 
 
            construction projects, there was no asbestos whatsoever.  In 
 
            retrofitting or renovation type of projects, there continued 
 
            to be some exposure to asbestos-containing materials which 
 
            had been installed during previous years and which were 
 
            disturbed in the current project.
 
            
 
                 The claim in this case is made against two of Carl's 
 
            former employers.  He worked for Gagnon, Inc., at the Iowa 
 
            State University heating plant in Ames, Iowa, a total of 40 
 
            hours during the period of time running from May 8 through 
 
            May 14, 1985, for which he was paid $16.17 per hour 
 
            (claimant's exhibit 5).  Carl's function was to install a 
 
            nonasbestos-containing pipe insulation onto soot blower 
 
            pipes which were attached to the number 5 boiler.  As 
 
            established by the testimony of corroborating witnesses 
 
            Rasmussen and Donaldson, it was necessary for Carl to cut 
 
            into the existing insulation on the soot blower pipes in 
 
            order to obtain a smooth surface for placement of the new 
 
            insulation.  Testimony from Rasmussen and claimant's 
 
            exhibits 10 and 10A show that in 1987 or 1988, when the 
 
            insulation on those pipes was tested in order to determine 
 
            if it contained asbestos, the tests from the east pipe all 
 
            contained asbestos material, while the samples from the west 
 
            pipe showed some of the insulation to be non-asbestos and 
 
            some to have been asbestos.  It is noted that the testing 
 
            was performed after the time when Carl installed 
 
            asbestos-free insulation on a part of the soot blower 
 
            piping.
 
            
 
                 As established by testimony from Mary Finn, Rasmussen 
 
            and other witnesses, it is not possible to accurately 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            identify asbestos-containing materials visually.  A 
 
            microscopic examination is required.  There are, however, 
 
            some characteristics of insulation materials which give some 
 
            indication of whether or not the material contains asbestos.  
 
            Some of those characteristics include whether it was used in 
 
            a high temperature application, the age of the material, its 
 
            date of installation, its color, texture and fiber content.  
 
            In making this finding, it is specifically found that, with 
 
            the foregoing information, an experienced asbestos worker is 
 
            capable of giving a somewhat reliable indication as to 
 
            whether or not an insulating material contains asbestos, 
 
            though that opinion or observation is only an indication and 
 
            is not absolutely reliable.
 
            
 
                 Carl testified at hearing that he trimmed existing 
 
            insulation which, from his observation appeared to contain 
 
            asbestos, in order to match it to the new insulation which 
 
            he was installing at the Iowa State University plant.  His 
 
            opinion is corroborated by the test results contained in 
 
            exhibits 10 and 10A.  Those test results show asbestos to 
 
            have been a common insulation material in the plant.  It is 
 
            probable that the original insulation on the soot blower 
 
            pipes of the number 5 boiler were entirely asbestos, that 
 
            some of the asbestos-containing insulation was removed in 
 
            the project in which Carl participated and that the 
 
            nonasbestos-containing insulation shown in the tests is that 
 
            which Carl installed.  It is therefore found to be probable 
 
            that Carl did inhale asbestos fibers, as he testified, while 
 
            employed by Gagnon, Inc., at the Iowa State University 
 
            plant.  As corroborated by exhibit 9A at page A-21, 
 
            claimant's testimony regarding the use of an 
 
            asbestos-containing cement is found to be correct.  It is 
 
            further found that the amount of exposure from that incident 
 
            was quite small in comparison to the exposures he 
 
            experienced during the early years of his career.  It is 
 
            further found that the exposure did not have any significant 
 
            impact upon Carl's asbestosis.
 
            
 
                 Carl was employed by Vaughn North Insulation Company, 
 
            also sometimes known as Services Industries, Inc., or North 
 
            Brothers, during the period of time running from August 12, 
 
            1985, through September 20, 1985 (claimant's exhibit 2, page 
 
            4).  Carl was paid at the rate of $16.17 per hour for his 
 
            work.  The project was at the Northern Natural Gas facility 
 
            near Redfield, Iowa.  Carl's function was to work as part of 
 
            a crew which was re-insulating tanks from which the 
 
            previously used insulating material had been removed.  As 
 
            established by testimony from Carl and other workers at the 
 
            scene, the removal process had not been absolutely complete 
 
            in the sense that some debris from the former insulation 
 
            remained on the ground around the tanks and had to be 
 
            cleaned up.  Carl and the other workers walked in that 
 
            material, created dust and inhaled the dust.  Similar 
 
            insulation materials were likewise found in the building 
 
            where Carl and the others ate their lunch.  The purpose of 
 
            the re-insulation project was sometimes referred to in the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            record as removal of asbestos-containing insulation.  
 
            According to witness Kenneth Olson, the project foreman Bob 
 
            Yeager, related to him that asbestos had been removed from 
 
            the tanks.  In its answers to interrogatories, the response 
 
            to interrogatory number 7 indicates that there was an 
 
            asbestos removal period (claimant's exhibit 2).  The results 
 
            of the test performed by Mary Finn, a qualified occupational 
 
            hygienist, showed that asbestos fibers were present during 
 
            the removal process (exhibit O).  Finn's testimony 
 
            establishes that the removal process was performed in a 
 
            manner which she considered to be correct and that the level 
 
            of exposure during the removal process was in a 
 
            concentration which did not violate any of the then-existing 
 
            OSHA standards.  It is noted that one of the exposures, 
 
            namely that of Mark McLenan on August 30, 1984, was in 
 
            excess of what is now the current standard for exposure.  It 
 
            is further noted that her testing was performed during a wet 
 
            removal process.  The substance was no longer wet when 
 
            claimant and the other insulators walked through it.  It is 
 
            therefore found that the testimony of claimant and some of 
 
            the other workers on his crew which indicated that the 
 
            insulating materials which remained on the site appeared to 
 
            contain asbestos is corroborated by Finn's test results 
 
            showing the presence of asbestos at that same location.  It 
 
            is therefore found that Carl Brandt did inhale asbestos 
 
            fibers while working for Vaughn North at the Redfield, Iowa, 
 
            Northern Natural Gas facility as Brandt related at hearing.  
 
            It is further found that the level of exposure was small in 
 
            comparison to the exposures which Brandt had experienced 
 
            earlier in his career and that it did not have any 
 
            significant impact upon his asbestosis disease.
 
            
 
                 According to Carl's testimony, he developed noticeable 
 
            breathing problems in approximately 1985 and one of the 
 
            first things he considered was that the problem might have 
 
            been caused by asbestos (defendants' exhibit A, page 126).  
 
            The nature of Carl's work was that he worked out of the 
 
            union hall for a variety of employers whenever work was 
 
            available.  He had been off work during 1986 prior to the 
 
            time he was diagnosed as having asbestosis and that period 
 
            of being off work was due to a lack of work being available.  
 
            He never turned down a job due to breathing problems, but 
 
            felt that in 1986 he was approaching the point that he would 
 
            have been limited in his ability to accept jobs (defendants' 
 
            exhibit A, pages 160-162).
 
            
 
                 As a result of a referral from his family physician, 
 
            Wade S. Brantley, D.O., Carl was seen at the Lutheran 
 
            Hospital Asbestos Clinic on August 13, 1986 (joint exhibit 
 
            1, pages 2, 3, 110, 111, 114, 115, 116 and 117).  Pulmonary 
 
            specialist Randall Hanson, M.D., diagnosed claimant as 
 
            having a combined obstructive/restrictive type of pulmonic 
 
            process, most compatible with chronic bronchitis and 
 
            emphysema and with a significant component of interstitial 
 
            lung disease which was compatible with asbestosis.  Dr. 
 
            Hanson recommended follow-up chest x-ray, sputum cytology, 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            and pulmonary function tests to be performed every six 
 
            months in order to monitor whether claimant's disease 
 
            process was progressing.  He likewise recommended that 
 
            claimant not work in environments where he might be exposed 
 
            to further asbestos.  In addition, the chest x-rays showed 
 
            mild cardiomeglia.  Pulmonary function tests showed mild to 
 
            moderate obstructive airways disease and markedly reduced 
 
            total lung capacity.  In a subsequent report dated November 
 
            17, 1990, Dr. Hanson confirmed that Carl has asbestosis 
 
            which causes permanent impairment and that he also has 
 
            chronic bronchitis/emphysema from cigarette smoking.  He 
 
            indicated that claimant has a mild to moderate impairment of 
 
            which 30-50 percent was due to asbestosis (joint exhibit 1, 
 
            page 24).  In that same report, Dr. Hanson stated that, when 
 
            he saw Carl in 1986, he did not place any limitations on the 
 
            amount of work which Carl could be performing due to his 
 
            impairment.  He stated that he felt Carl was capable of 
 
            working as an insulator or in any similar occupation based 
 
            upon the tests which were performed.
 
            
 
                 Claimant sought treatment at the University of Iowa 
 
            Hospitals and Clinics in June 1987.  His predominant symptom 
 
            of shortness of breath with exertion was again noted.  Carl 
 
            was diagnosed as having a mild obstructive pulmonary defect 
 
            as well as asbestosis.  It was noted that his pulmonary 
 
            function was reasonably well preserved.  The note further 
 
            indicates that claimant's symptoms with exertion are due in 
 
            part to his history of smoking and obesity.  It was 
 
            indicated that Carl should not experience any further 
 
            asbestos exposure and for that reason should be considered 
 
            unable to continue in his work as an insulator (joint 
 
            exhibit 1, page 5).  The pulmonary function report indicates 
 
            moderately severe obstructive ventilatory defect (joint 
 
            exhibit 1, page 83).  Carl was seen again on March 22, 1990, 
 
            at which time the prior diagnoses were confirmed.  It was 
 
            reported that the pulmonary function tests and x-rays showed 
 
            mild worsening of his condition since June of 1987 (joint 
 
            exhibit 1, pages 18 and 19).
 
            
 
                 Dr. Hanson was deposed on May 24, 1990, with regard to 
 
            his personal knowledge of claimant's case.  Dr. Hanson had 
 
            not reviewed other records and reports.  At that time, Dr. 
 
            Hanson indicated that as far as claimant's asbestosis was 
 
            concerned, the most significant features of the initial 
 
            pulmonary function test were the decreased total lung 
 
            capacity and residual volume (defendants' exhibit B, pages 
 
            57 and 58).  Dr. Hanson explained that chronic bronchitis/ 
 
            emphysema are interchangeable terms and constitute an 
 
            obstructive defect.  He explained that asbestosis produces a 
 
            restrictive defect and that part of claimant's restrictive 
 
            defect was due to his weight.  Dr. Hanson explained that 
 
            claimant's bronchitis and emphysema are both due to smoking 
 
            (defendants' exhibit B, pages 59-62).  Dr. Hanson was 
 
            unwilling to state that claimant's asbestosis had progressed 
 
            (defendants' exhibit B, pages 39, 40, 47 and 48).  Dr. 
 
            Hanson explained that, where the condition of asbestosis is 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            mild, the patient can be asymptomatic.  He interpreted 
 
            claimant's disease in 1986 as being mild to moderate.  He 
 
            attributed claimant's 1986 symptoms equally to his weight, 
 
            state of conditioning, cardiac disease, obstructive airway 
 
            disease and asbestosis (defendants' exhibit B, pages 75 and 
 
            76).  Dr. Hanson explained that claimant's x-rays showed 
 
            mild heart enlargement which would be compatible with 
 
            hypertension and heart failure (defendants' exhibit B, pages 
 
            68-70).  Dr. Hanson opined that the charges made for 
 
            services provided by his office were reasonable (defendants' 
 
            exhibit B, page 66).
 
            
 
                 Carl's records have also been evaluated by Gregory A. 
 
            Hicklin, M.D., a pulmonary medicine specialist who is a 
 
            partner with Dr. Hanson.  Dr. Hicklin felt that claimant 
 
            clearly had asbestosis and also has congestive heart failure 
 
            (defendants' exhibit C, page 13).  Dr. Hicklin, having the 
 
            opportunity to review pulmonary function tests performed 
 
            subsequently to the ones seen by Dr. Hanson in 1986, stated 
 
            that the subsequent tests show Dr. Hanson's initial 
 
            assessment of a significant restrictive defect to have been 
 
            incorrect since the subsequent tests have produced normal 
 
            results in the areas of total lung capacity and residual 
 
            volume (defendants' exhibit C, pages 23, 24 and 28-32).  Dr. 
 
            Hanson stated that the changes in claimant's chest x-rays 
 
            which have occurred during the period of 1986-1990 are more 
 
            likely due to his heart disease than to asbestosis.  He 
 
            stated that there are no changes in the pulmonary function 
 
            tests which show the asbestosis to be progressing during 
 
            that same period of time, but that the tests do show an 
 
            increase in the obstructive airway disease (defendants' 
 
            exhibit C, pages 21, 22 and 28-32).  Dr. Hicklin opined 
 
            that, based upon the pulmonary function tests, the condition 
 
            of claimant's lungs would probably permit him to work as an 
 
            insulator, but that he may have some limitations.  He stated 
 
            that claimant's primary limiting factor is probably his 
 
            heart (defendants' exhibit C, pages 24-26).
 
            
 
                 Claimant was also evaluated by pulmonary specialist 
 
            Louis W. Burgher, M.D.  Dr. Burgher expressed the opinion 
 
            that claimant's asbestosis had not progressed during the 
 
            period of 1987-1990 (defendants' exhibit D, pages 28-29).  
 
            Dr. Burgher felt that claimant had an obstructive defect, 
 
            but not a restrictive defect.  He stated that the 
 
            obstructive airway disease is compatible with claimant's 
 
            history of smoking (defendants' exhibit D, pages 40 and 
 
            46-49).  Dr. Burgher opined that claimant has some 
 
            impairment as the result of his obstructive airway disease, 
 
            but that the impairment is not large.  He felt that claimant 
 
            should have the capacity to perform a normal labor job 
 
            according to the results of the 1987 exercise test and that 
 
            he should be able to work as an insulator (defendants' 
 
            exhibit D, pages 60-62).  Dr. Burgher stated that virtually 
 
            all of claimant's pulmonary impairment is due to smoking 
 
            (defendants' exhibit D, page 64).  Dr. Burgher also 
 
            indicated that claimant's pulmonary function impairment is 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            worsened by his congestive heart failure condition 
 
            (defendants' exhibit D, pages 45 and 70).
 
            
 
                 Based primarily upon the foregoing, as well as the 
 
            other evidence in the record, it is found that Drs. Burgher 
 
            and Hanson are correct in their assessment that the majority 
 
            of Carl's pulmonary functional impairment is a result of 
 
            smoking or causes other than asbestosis.  While Carl clearly 
 
            has asbestosis which resulted from his career as an 
 
            insulator, there is no showing in the record that the 
 
            asbestosis has caused him to become actually incapacitated 
 
            from performing his work as an insulator.  To the contrary, 
 
            Drs. Burgher, Hicklin and Hanson all indicated that he could 
 
            probably work as an insulator in spite of his pulmonary 
 
            condition.  When it is considered that the majority of the 
 
            impairment from his pulmonary condition results from 
 
            smoking, rather than asbestosis, it is clear that the 
 
            asbestosis has not caused him to become incapacitated from 
 
            performing work as an insulator.
 
            
 
                 It is found that Carl Brandt is now disabled from 
 
            working as an insulator, but that the vast majority of the 
 
            disability is a result of his obstructive airway disease 
 
            which was caused by years of smoking, his cardiac disease 
 
            and obesity.  While Carl's shortness of breath symptoms are 
 
            in part due to his asbestosis condition, that part is found 
 
            to have no significant impact on his ability to work.  The 
 
            more recent pulmonary function tests clearly show that there 
 
            is minimal, if any, restrictive abnormality which can be 
 
            attributed to asbestosis.
 
            
 
                 The recommendation from Dr. Hanson that claimant obtain 
 
            regular follow-up examinations to monitor his asbestosis 
 
            condition is found to be correct and appropriate.  The 
 
            condition has the potential to progress.  For these reasons, 
 
            the services which claimant has received at Iowa Lutheran 
 
            Hospital and the University of Iowa Hospitals and Clinics 
 
            are found to be related to and incurred in treatment of his 
 
            occupational disease of asbestosis.  Dr. Hanson, who is 
 
            involved in the Iowa Lutheran Hospital bills, has, by his 
 
            testimony, established the reasonableness of those charges.  
 
            Since the University of Iowa Hospitals are an arm of state 
 
            government and do not operate with a profit motive, it is 
 
            highly unlikely that their charges would be unreasonably 
 
            high.  For these reasons, it is found that the charges from 
 
            the University of Iowa Hospitals are likewise reasonable.  
 
            The total charged by Iowa Lutheran Hospital is $1,235.12 
 
            while the total from the University of Iowa Hospitals is 
 
            $2,182.75.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 In order to prove the existence of an occupational 
 
            disease, it is necessary for the employee to prove, by a 
 
            preponderance of the evidence, that he has contracted an 
 
            ailment which was proximately caused by his employment and 
 
            that the ailment followed as a natural incident to some 
 
            injurious exposure which was occasioned by and peculiar to 
 
            the employment.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            181 (Iowa 1980); Frit Indus. v. Langenwalter, 443 N.W.2d 88 
 
            (Iowa Ct. App. 1989); Section 85A.8 (1991), Code of Iowa.  
 
            The evidence in this case overwhelmingly supports Carl 
 
            Brandt's proposition that he has sustained the occupational 
 
            disease of asbestosis as a direct result of his career of 
 
            over 30 years as an insulator who worked with 
 
            asbestos-containing materials.  The evidence likewise 
 
            overwhelmingly establishes that his exposure to asbestos 
 
            through his employment was much more prevalent than the 
 
            exposure to asbestos which is occasioned by other 
 
            employments or normal, nonemployment life.  It is therefore 
 
            concluded that Carl E. Brandt has contracted the 
 
            occupational disease of asbestosis.
 
            
 
                 Section 85A.10 of The Code provides that the employer 
 
            in whose employment the employee was last injuriously 
 
            exposed to the hazards of the occupational disease is liable 
 
            for the compensation.  As shown by testimony from Mary Finn, 
 
            there is no known level of exposure to asbestos which is 
 
            generally accepted as being nonhazardous or safe.  To the 
 
            contrary, nearly any exposure has the potential for being 
 
            hazardous or injurious.  The fact of the 10- to 20-year 
 
            latency period between the actual injurious exposure and the 
 
            onset of the occupational disease of asbestosis does not 
 
            provide a basis for barring or denying claims.  Any exposure 
 
            to asbestos is presumptively injurious.  The last employer 
 
            in whose employ the employee was exposed to asbestos is the 
 
            one held liable under sections 85A.4 and 85A.10 of The Code.
 
            
 
                 One unique difference between the occupational disease 
 
            law provided in chapter 85A of The Code and the workers' 
 
            compensation law found in chapter 85 of The Code is the 
 
            manner in which permanent disabilities are compensated.  
 
            Under the workers' compensation law, an employer takes an 
 
            employee subject to any active or dormant health impairments 
 
            and any aggravation of the preexisting condition which is 
 
            caused by a work-connected injury is considered to be a 
 
            personal injury and is compensable.  Olson v. Goodyear Serv. 
 
            Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager v. 
 
            Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 
 
            (1961); Ziegler v. United States Gypsum Co., 252 Iowa 613, 
 
            106 N.W.2d 591 (1960).  See also Barz v. Oler, 257 Iowa 508, 
 
            133 N.W.2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 
 
            Iowa 724, 254 N.W. 35 (1934).  It is often said that the 
 
            rule is the employer takes the employee as he finds him.  
 
            There are limited situations in which preexisting disability 
 
            can be apportioned.  Bearce v. FMC Corp., 465 N.W.2d 531 
 
            (Iowa 1991); Tussing v. George A. Hormel & Co., 461 N.W.2d 
 
            450 (Iowa 1990).  Under the occupational disease law, 
 
            however, section 85A.7(4) provides a result which is 
 
            different from that normally seen in cases where an award is 
 
            made under chapter 85.  The occupational disease law 
 
            specifically limits the employer's liability to the 
 
            disability which is caused by the occupational disease as if 
 
            it were the sole cause of the disability.
 
            
 
                 In this case, it has been determined that Carl Brandt's 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            asbestosis does not have any significant impact upon his 
 
            physical ability to be employed as an insulator or in other 
 
            occupations.
 
            
 
                 A further difference between the occupational disease 
 
            law and chapter 85 is that compensation for permanent 
 
            disability is payable for occupational diseases only after 
 
            the employee becomes incapacitated from performing the 
 
            employee's work in the occupation in which the employee was 
 
            injuriously exposed to the hazards of the occupational 
 
            disease and the employee is unable to earn equal wages in 
 
            other suitable employment, both of which events must have 
 
            been proximately caused by the occupational disease.  Under 
 
            chapter 85, there is no requirement in either scheduled 
 
            disability or industrial disability cases for the individual 
 
            to be actually incapacitated from working in the occupation 
 
            in which they sustained the injury as a prerequisite for 
 
            receiving permanent partial disability compensation.  
 
            Industrial or scheduled member disability can be awarded 
 
            when there is no loss of the employment or actual earnings.  
 
            It can be awarded even when there has been an increase in 
 
            actual earnings.
 
            
 
                 Industrial disability was defined in Diederich v. 
 
            Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 
 
            (1935) as follows: "It is therefore plain that the 
 
            legislature intended the term `disability' to mean 
 
            `industrial disability' or loss of earning capacity and not 
 
            a mere `functional disability' to be computed in the terms 
 
            of percentages of the total physical and mental ability of a 
 
            normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).
 
            
 
                 The concept of disablement as a threshold to payment 
 
            for permanent disability is unique to the occupational 
 
            disease law.  Frit Indus. v. Langenwalter, 443 N.W.2d 88 
 
            (Iowa Ct. App. 1989).
 
            
 
                 In this case, the evidence fails to demonstrate that 
 
            Carl Brandt has ever been disabled on account of his 
 
            occupational disease of asbestosis.  As previously found in 
 
            this decision, his disability is attributable to other 
 
            factors.  The role of the occupational disease is 
 
            insignificant.  It is therefore concluded that Carl Brandt 
 
            has not met the standard of proving disablement in 
 
            accordance with section 85A.4 of The Code and is therefore 
 
            not entitled to any recovery for permanent partial 
 
            disability.
 
            
 
                 It is noted that his last injurious exposure occurred 
 
            while he was employed by Vaughn North Insulation Company, 
 
            a/k/a National Service Industries, Inc., and North Brothers 
 
            Company with such employment ending on September 20, 1985.  
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            In order for him to be compensated for permanent disability 
 
            based upon the occupational disease, it was necessary for 
 
            disablement to have its onset within three years from the 
 
            last date of employment with the employer who provided the 
 
            last injurious exposure.  Sections 85A.12 and 85A.13 (1991), 
 
            Code of Iowa.  While claimant's asbestosis is a form of 
 
            pneumoconiosis, it is not tuberculosis.  Therefore, the 
 
            normal rules regarding reduction of benefits for other 
 
            conditions would apply in the event that the threshold of 
 
            disablement caused by the occupational disease had been met.  
 
            Section 85A.13(3) (1991), Code of Iowa.  Since Carl Brandt 
 
            did not become disabled by asbestosis within three years 
 
            following September 20, 1985, (namely September 20, 1988), 
 
            he is not entitled to any recovery.  Meyer v. Iowa State 
 
            Penitentiary, No. 90-1195 (Iowa October 16, 1991).
 
            
 
                 While claimant is not entitled to receive any 
 
            compensation for permanent disability in this case, he is, 
 
            nevertheless, entitled to recover the expenses of treatment 
 
            for the occupational disease.  Section 85A.5 (1991), Code of 
 
            Iowa.  The employer who provided the last injurious exposure 
 
            is responsible for the payment of the expenses, in this case 
 
            Vaughn North Insulation Company.  Claimant is therefore 
 
            entitled to recover the expenses incurred at Iowa Lutheran 
 
            Hospital in the total amount of $1,235.12 and those incurred 
 
            with the University of Iowa Hospitals in the amount of 
 
            $2,182.75.  The other medical expenses which he seeks are 
 
            not shown to have been rendered in providing diagnosis of or 
 
            treatment for his occupational disease of asbestosis.
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED that Vaughn North Insulation 
 
            Company, National Services Industries, Inc., North Brothers 
 
            Company and Liberty Mutual Insurance Company pay claimant's 
 
            expenses pursuant to section 85A.5 as follows:
 
            
 
                 Iowa Lutheran Hospital              $ 1,235.12
 
                 University of Iowa Hospitals          2,182.75
 
                 Total                               $ 3,417.87
 
            
 
                 IT IS FURTHER ORDERED that the claimant's claim for 
 
            weekly compensation based upon permanent disability 
 
            resulting from an occupational disease of asbestosis is 
 
            denied.
 
            
 
                 IT IS FURTHER ORDERED that costs are assessed against 
 
            Vaughn North Insulation Company pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Frank Watson, Jr.
 
            Attorney at Law
 
            410 Hubbell Building
 
            Ninth and Walnut
 
            Des Moines, Iowa  50309
 
            
 
            Mr. Jack W. Rogers
 
            Attorney at Law
 
            2700 Westown Parkway
 
            Suite 300
 
            W. Des Moines, Iowa  50265
 
            
 
            Mr. Jon K. Hoffmann
 
            Mr. Richard G. Book
 
            Attorneys at Law
 
            500 Liberty Building
 
            Des Moines, Iowa  50309
 
            
 
 
         
 
 
 
 
 
                                            1803; 2203; 2501
 
                                            Filed November 4, 1991
 
                                            MICHAEL G. TRIER
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         CARL E. BRANDT,               :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :         File No. 838975
 
         GAGNON INCORPORATED, NATIONAL :
 
         SERVICE INDUSTRIES, INC.,     :      A R B I T R A T I O N
 
         NORTH BROTHERS CO., and VAUGHN:
 
         NORTH INSULATION COMPANY,     :         D E C I S I O N
 
                                       :
 
              Employers,               :
 
                                       :
 
         and                           :
 
                                       :
 
         GREAT AMERICAN INSURANCE      :
 
         COMPANIES and LIBERTY MUTUAL  :
 
         INSURANCE CO.,                :
 
                                       :
 
              Insurance Carriers,      :
 
              Defendants.              :
 
         ____________________________________________________________
 
         
 
         1803; 2203; 2501
 
         
 
              Claimant clearly had asbestosis, an occupational disease, as 
 
         a result of over 30 years' work as an insulator.  HELD:  Last 
 
         injurious exposure means the last day of the most recent term of 
 
         employment with an employer during which term of employment the 
 
         employee was exposed to a hazard responsible for producing the 
 
         occupational disease.  No actual causation requirement exists as 
 
         between that last term of employment and the disease itself or 
 
         the disability.
 
         
 
              HELD:  Section 85A.7(4) limits the employer's liability to 
 
         payment of compensation for the occupational disease as if it 
 
         were the only disease or infirmity affecting the employee.
 
         
 
              HELD:  Disablement as provided in section 85A.4 occurs only 
 
         when the employee is actually incapacitated from performing work 
 
         in the occupation in which the occupational disease was 
 
         contracted and is also incapacitated from earning equal wages in 
 
         other suitable employment and that the incapacity was directly 
 
         caused by the occupational disease.
 
         
 
              Sixty-year-old claimant, who was severely disabled by a 
 
         number of conditions, was denied any disability benefits since 
 
         the evidence failed to show that the occupational disease was a 
 
         significant factor in producing his disability.  Claimant awarded 
 
         medical benefits under section 85A.5 from the employer who 
 
         provided the last injurious exposure.