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                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RAYMOND J. ENTRINGER,         :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 838993
 
            C & J SERVICE COMPANY,        :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon claimant's 
 
            petition filed September 26, 1988.  Claimant was injured in 
 
            a motor vehicle accident while in the course of his 
 
            employment with C & J Service Company on October 27, 1986, 
 
            and now seeks benefits under the Iowa Workers' Compensation 
 
            Act from that employer and its insurance carrier, Employers 
 
            Mutual Companies.
 
            
 
                 Hearing on the arbitration petition was had in 
 
            Davenport, Iowa, on June 29, 1990.  The record consists of 
 
            claimant's exhibits 1 through 16, defendants' exhibits A 
 
            through G and the testimony of claimant, Jack Reynolds and 
 
            Kenneth Moser.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report, the parties have 
 
            stipulated:  that claimant sustained an injury arising out 
 
            of and in the course of his employment with C & J Service 
 
            Company on October 27, 1986; that if claimant has sustained 
 
            permanent disability, it is an industrial disability to the 
 
            body as a whole; that affirmative defenses are waived; that 
 
            all requested medical benefits have been or will be paid by 
 
            defendants; that defendants are entitled to credit for 82 
 
            weeks, 2 days of compensation paid prior to hearing at the 
 
            rate of $274.19.
 
            
 
                 Issues presented for resolution include:  whether the 
 
            injury caused temporary or permanent disability, the extent 
 
            of each and the commencement date of the latter; taxation of 
 
            costs.
 
            
 
                 In an addendum to the prehearing report, defendants 
 
            have frivolously asserted that claimant must establish a 
 
            change of condition since the last date of voluntary payment 
 
            of compensation.  Of course, claimant does bear the burden 
 

 
            
 
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            of establishing a change of condition in a review-reopening 
 
            proceeding, but this proceeding is upon a petition in 
 
            arbitration.  There has been no prior agreement for 
 
            settlement approved by this agency or arbitration decision 
 
            to establish a "base line" condition from which claimant 
 
            would be required to prove a change in review-reopening.  
 
            The point at which defendants stopped making voluntary 
 
            payments was a unilateral decision and scarcely is binding 
 
            on this agency as establishing claimant's entitlement to 
 
            compensation.  Accordingly, this contention shall not be 
 
            discussed further.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy industrial commissioner, having 
 
            heard the testimony and considered all of the evidence, 
 
            finds:
 
            
 
                 Claimant, age 58 at time of hearing, left school in the 
 
            ninth grade.  For the last 35 years, his only work has been 
 
            as a truck driver, both as employee and owner-operator.  For 
 
            the last 25 years he has been employed by defendant C & J 
 
            Service Company.  He has worked as a route LP gas delivery 
 
            driver for about the last 10 or 12 years.
 
            
 
                 Claimant owns his own delivery truck and is paid a set 
 
            compensation of 4.9 cents per gallon delivered.  Claimant 
 
            pays all expenses pertaining to the operation of his 
 
            vehicle.
 
            
 
                 The business is to a large extent seasonal.  Claimant 
 
            estimated he does approximately 75 percent of his annual 
 
            business in the months between October and February.  May, 
 
            August and September are the slowest months.
 
            
 
                 Prior to the stipulated injury, claimant enjoyed 
 
            excellent health.  He indicated his only complaint was a 
 
            little arthritis in the lumbar spine that did not restrict 
 
            his activities.
 
            
 
                 Unfortunately, claimant was severely injured in a motor 
 
            vehicle collision with a tractor on October 27, 1986.  Those 
 
            injuries included a fractured and comminuted clavicle, a 
 
            slightly displaced odontoid process and fractures including 
 
            the left fourth, fifth, sixth and seventh ribs along with 
 
            damage to the intercostal muscles (at the juncture of rib 
 
            and spine).
 
            
 
                 Claimant's rib injuries were treated primarily by R. V. 
 
            Mullapudi, M.D.  On March 17, 1987, Dr. Mullapudi wrote of 
 
            his diagnosis of fracture of fifth through eighth ribs, 
 
            contusion of lung, probable dislocation of odontoid process 
 
            and fracture of the left clavicle.  He did not anticipate 
 
            any permanent disability.
 
            
 
                 The primary treating physician for the fractured 
 
            clavicle was Robert Scott Cairns, M.D.  Dr. Cairns is a 
 
            board-certified orthopaedic surgeon and testified by 
 
            deposition on September 27, 1989 (in a civil action 
 
            concerning the motor vehicle collision).  Dr. Cairns limited 
 

 
            
 
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            himself to treating the fractured clavicle and did not 
 
            involve himself in the care and treatment of other injuries.
 
            
 
                 Dr. Cairns testified that by May 1987 claimant had only 
 
            occasional symptoms in the region of the clavicle.  He did 
 
            indicate his belief that claimant's ongoing complaints of 
 
            thoracic pain from fractured ribs and collarbone were 
 
            attributable to the collision.  He noted that degenerative 
 
            arthritis of the shoulder with multiple cysts had become 
 
            markedly aggravated following the collision, and that it was 
 
            possible that the trauma to the joint could hasten x-ray 
 
            changes as seen.  Dr. Cairns did not impose any medical 
 
            restrictions when claimant left his care in the spring of 
 
            1989.  He repeatedly testified that he was capable of rating 
 
            claimant's impairment of the shoulder, back and clavicle, 
 
            but was never asked to do so.
 
            
 
                 Claimant was seen once by Michael Evans, M.D., upon Dr. 
 
            Cairns' referral.  Chart notes of June 4, 1987 show that Dr. 
 
            Evans assessed claimant as suffering multiple pain radiating 
 
            around from his previous rib injuries due to callous 
 
            formation with nerve entrapment at multiple levels.  Dr. 
 
            Evans stated that because of both the lateral and posterior 
 
            nature of the fractures, claimant probably had much more 
 
            pain and muscle spasms secondary to the very slow nature of 
 
            the healing process.
 
            
 
                 Claimant was also referred for treatment of chest and 
 
            shoulder pain to Paulette Lynn, M.D.  Dr. Lynn first saw 
 
            claimant on August 21, 1987.  Her initial impression was of:  
 
            (1) status post-clavicular fracture on the left; (2) status 
 
            post-rib fractures with continued pain; (3) soft tissue 
 
            shortening about the shoulder with decreased range of 
 
            motion, probably the source of shoulder pain; (4) cervical 
 
            spine changes (degenerative arthritis with disc space 
 
            narrowing and anterior spurring at C5-C6).
 
            
 
                 By October 14, 1987, Dr. Lynn recommended that claimant 
 
            needed to begin returning to work, although she did not at 
 
            that time feel that he could return to his prior capacity 
 
            which involved lifting and pulling of 100-pound items.  By 
 
            December 22, 1987, following a functional capacity 
 
            evaluation conducted at the River Rehabilitation Center, Dr. 
 
            Lynn agreed with recommendations that claimant should have a 
 
            lifting limit of 50 pounds, should not do excessive twisting 
 
            due to poor flexibility, and that overhead lifting should be 
 
            restricted to 40 pounds.  There were no restrictions on 
 
            walking or riding, although she recommended that claimant be 
 
            put on a conditioning program for one month to prepare him 
 
            for work and that he should be slowly worked back into the 
 
            work force with, initially, a companion to help him 
 
            manipulate heavy hoses.
 
            
 
                 Claimant returned to work as a helper for another 
 
            driver on January 18, 1988, then assumed his former duties 
 
            on February 23, 1988.  He remained so employed through the 
 
            time of hearing, although indicating that he sometimes makes 
 
            fewer deliveries and tries to do the heaviest work with his 
 
            right arm, trying to protect the left.  Claimant performs 
 
            the same basic job, but at a slower pace.
 

 
            
 
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                 By March 22, 1988, Dr. Lynn reported that claimant had 
 
            lost about 20 degrees of shoulder flexion and abduction, but 
 
            had range of motion of the neck within normal limits.  
 
            Claimant was discharged from care to be seen again as 
 
            needed.
 
            
 
                 Claimant was seen for neurologic evaluation on November 
 
            23, 1987 by Richard Roski, M.D.  Dr. Roski's actual 
 
            examination lasted only 2-3 minutes.  Claimant was found 
 
            neurologically within normal limits.  On a neurologic basis, 
 
            and using American Medical Association guidelines, Dr. Roski 
 
            graded claimant as having sustained a 0-5 percent permanent 
 
            impairment due to thoracic pain and a 2 percent impairment 
 
            from lack of mobility in the lower back.  The doctor felt 
 
            that an orthopaedic practitioner would be better able to 
 
            evaluate the extent of claimant's other skeletal problems.
 
            
 
                 Claimant was also seen for evaluation on April 4, 1988 
 
            by John R. Walker, M.D.  Dr. Walker is a board-certified 
 
            orthopaedic surgeon who issued a report and testified by 
 
            deposition on August 20, 1989 (in the civil action) and May 
 
            17, 1990 (in this action).
 
            
 
                 In his report, Dr. Walker made the following diagnoses:
 
            
 
                 1.  A chronic sprain of the cervical spine with a 
 
                 possible receding, old injury to the odontoid 
 
                 processes and ligaments.
 
            
 
                 2.  A sprain of the dorsal spine particularly at 
 
                 T-3 and T-4, somewhat painful and symptomatic.
 
            
 
                 3.  Well-healed fracture of the left clavicle.
 
            
 
                 4.  Some loss of motion in the left shoulder with 
 
                 a contracture with loss of motion in extension, 
 
                 external rotation and abduction.
 
            
 
                 5.  Well-healed fracture of the ribs with 
 
                 persistent soft tissue pain, possibly the result 
 
                 of intercostal muscle tear and/or adhesive process 
 
                 due to old hemothorax and atelectasis (collapse of 
 
                 the lung).
 
            
 
                 Dr. Walker reported that claimant had sustained body as 
 
            a whole impairments of four percent attributable to the 
 
            neck, five percent attributable to the rib fractures, four 
 
            percent attributable to the shoulder and clavicle and two 
 
            percent attributable to the dorsal spine.
 
            
 
                 In his first deposition, Dr. Walker opined that all of 
 
            these impairments were causally related to the subject work 
 
            injury.  He also indicated that he would increase his 
 
            impairment assessment attributable to the left shoulder and 
 
            clavicle to approximately 8-10 percent of the body as a 
 
            whole.
 
            
 
                 Jack Reynolds, a vocational rehabilitation consultant, 
 
            testified that claimant was motivated to return to work in 
 

 
            
 
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            his previous job and did not indicate interest in seeking 
 
            other employment.  As a result, he closed his file when 
 
            claimant did return to work.  Reynolds indicated that, of 27 
 
            openings in the Dubuque area in 1989, claimant's medical 
 
            restrictions would exclude him from five.  Of those, 
 
            claimant's age made three of the jobs unrealistic.
 
            
 
                 The parties did not elect to present evidence as to 
 
            claimant's earnings during the 13 weeks prior to the work 
 
            injury.
 
            
 
                                conclusions of law
 
            
 
                 The parties stipulate that claimant sustained an injury 
 
            arising out of and in the course of his employment on 
 
            October 27, 1986, but dispute whether the injury caused 
 
            either temporary or permanent disability.  Defendants' 
 
            election to dispute causal connection to temporary 
 
            disability is absurd.  Claimant was involved in a serious 
 
            motor vehicle accident and was partially pinned beneath his 
 
            truck.  He suffered a broken clavicle, fractured ribs, 
 
            basically a collapsed chest, and was hospitalized for a 
 
            week.  This dispute is clearly not in good faith.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of October 27, 
 
            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 
 
            Hosp., 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. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 A causal nexus between the work injury and permanent 
 
            disability is a closer question.  Dr. Mullapudi did not 
 
            anticipate any permanent disability.  However, treating 
 
            physician Lynn imposed medical restrictions and Dr. Walker 
 
            and possibly Dr. Roski rated claimant as sustaining 
 
            permanent impairment.  Dr. Walker specified that a causal 
 
            nexus existed.  It is held that claimant has sustained his 
 
            burden of proof on this issue.
 
            
 
                 Pursuant to Iowa Code section 85.34(1), healing period 
 

 
            
 
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            benefits are payable from the date of injury and continuing 
 
            until the employee has returned to work, it is medically 
 
            indicated that significant improvement from the injury is 
 
            not anticipated, or until the employee is medically capable 
 
            of returning to substantially similar employment, whichever 
 
            first occurs.  While Dr. Roski issued an impairment rating 
 
            (of a sort) in 1987, claimant did not return to work at that 
 
            time and Dr. Lynn, treating claimant at that time for rib 
 
            injuries, had not released him to substantially similar work 
 
            (although she recommended that he begin slowly beginning to 
 
            work).  Accordingly, it is not the case that significant 
 
            improvement from the injury was not anticipated at the time 
 
            Dr. Roski issued his impairment rating.
 
            
 
                 Claimant returned to work on January 19, 1988.  
 
            Therefore, he is entitled to healing period benefits from 
 
            the date of injury until January 18, 1988, a total of 64 
 
            weeks, 1 day.
 
            
 
                 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 medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 

 
            
 
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            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).
 
            
 
                 Given claimant's educational background, there are no 
 
            doubt a number of manual labor jobs for which he might 
 
            otherwise be qualified that he now cannot perform due to 
 
            work restrictions.  However, claimant has been working as a 
 
            truck driver for some 35 years, 25 of which have been with 
 
            C & J Service Company.  Claimant clearly has elected to 
 
            spend his career as a driver.  He is fortunate that while 
 
            the work injury may to some degree lessen his efficiency, he 
 
            remains able to carry on in his chosen career.  In 
 
            particular, the fact that defendants have been able to 
 
            provide him continued employment at the same job is a factor 
 
            substantially reducing his industrial disability.  However, 
 
            if he were to lose this position, his attractiveness as a 
 
            potential employee would no doubt be diminished in the eyes 
 
            of at least some prospective employers due to his 
 
            restrictions.  Considering claimant's work history, 
 
            education, general intelligence (apparently in the average 
 
            range), motivation, age and satisfaction with his current 
 
            and long-held position, it is held that he has sustained an 
 
            industrial disability equivalent to 10 percent of the body 
 
            as a whole, or 50 weeks.
 
            
 
                 The parties also dispute the proper rate of 
 
            compensation, although it is stipulated that claimant was 
 
            married and entitled to two exemptions.  The dispute 
 
            concerns his average gross weekly earnings.
 
            
 
                 Defendants take the position that the basis of 
 
            computation should be under Iowa Code section 85.36(6) in 
 
            that claimant was paid "by the output of the employee," that 
 
            is, a commission of 4.9 cents per gallon of LP gas 
 
            delivered.  Claimant, on the other hand, contends that he is 
 
            a seasonal employee and that compensation should be 
 
            calculated under 85.36(9).
 
            
 
                 Claimant's employment and C & J Service Company's 
 
            business generally are seasonal in the sense that some parts 
 
            of the year are consistently much busier than other parts.  
 
            However, the business is in operation and claimant works 
 
            year round.  Section 85.36(9) speaks of occupations "which 
 
            are exclusively seasonal and therefore cannot be carried on 
 
            throughout the year."  Claimant's occupation was carried on 
 
            throughout the year, although at a reduced level of activity 
 
            from time to time, and therefore does not meet the statutory 
 
            standard of 85.36(9).
 
            
 
                 Accordingly, claimant's rate of compensation should be 
 

 
            
 
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            calculated under 85.36(6).  However, it is impossible to 
 
            determine on this record what claimant's earnings were in 
 
            the last completed period of 13 consecutive calendar weeks 
 
            immediately preceding the work injury.
 
            
 
                 It is clear that a portion of claimant's compensation 
 
            is attributable to his labor, and a portion attributable to 
 
            the use of his equipment.  Claimant presented a copy of his 
 
            1986 tax return which indicates he was paid $36,052 during 
 
            calendar year 1986, and that claimant himself paid a 
 
            substitute driver $2,192.  It is impossible from this to 
 
            determine actual compensation or expenses for the 13 weeks 
 
            preceding the injury.  Defendants presented evidence of 
 
            "wages" paid between July 1 and September 15, 1986 
 
            ($3,893.48) and between October 1, 1985 and October 1, 1986 
 
            ($33,772.09).  In addition, defendants show that claimant 
 
            was paid commission payments of $2,378.80 in September 1986 
 
            and $5,571.87 in October 1986.  It is equally impossible 
 
            from this to determine with accuracy what claimant actually 
 
            earned during the 13 weeks preceding the injury.
 
            
 
                 Because the record does not permit a determination of 
 
            claimant's earnings during the 13 weeks preceding the 
 
            injury, the best course appears to be to determine earnings 
 
            on an annual basis and divide by 52.  Claimant's 1986 income 
 
            tax return indicates earnings attributable to him of 
 
            $33,860, which is obviously very close to the wages paid 
 
            during the year ending October 1, 1986 ($33,772.09).  The 
 
            sum of $33,860 is preferable because it includes wages 
 
            earned up to the point of injury, rather than using the 
 
            arbitrary cut-off point of October 1, 1986.
 
            
 
                 However, it is "wholly unreasonable and not demanded by 
 
            statute" to fail to deduct expenses so as to arrive at 
 
            actual wages.  D & C Express, Inc. v. Sperry, 450 N.W.2d 842 
 
            (Iowa 1990).  Adopting the language of Judge J. L. Burns of 
 
            the Muscatine County District Court, the Supreme Court held:
 
            
 
                       It is not absurd to deduct known expenses to 
 
                    arrive at actual wages.  It seems quite 
 
                    unreasonable to pay the same amount whether or 
 
                    not expenses are incurred.  There is no basis 
 
                    to say that [Sperry] would receive no 
 
                    compensation because he showed a net loss on 
 
                    his tax return.  Many factors, such as interest 
 
                    paid, depreciation, [and other matters] enter 
 
                    into a determination of taxable income that 
 
                    would not be applicable to determine actual 
 
                    wages.  The court is not persuaded that an 
 
                    attempt to determine the amount paid which was 
 
                    actually wages would be so difficult as to make 
 
                    the system unworkable.  If [Sperry] averaged 
 
                    $955 per week in gross earnings and still 
 
                    showed a net loss on his income tax return, 
 
                    then there must have been considerable expenses 
 
                    involved.  It would be unreasonable to pay the 
 
                    same amount when those expenses were not in 
 
                    fact being incurred.
 
            
 
                 The district court then quoted Iowa Code section 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 85.36(8), which we have noted above, and went on 
 
                 to state:
 
            
 
                       There is evidence in the record that the 
 
                    standard wage rate for drivers is 25% of the 
 
                    gross receipts.  The burden is on [Sperry] to 
 
                    show his actual earnings.  If he cannot do so, 
 
                    then . . . the provisions of section 85.36(8) 
 
                    should apply.
 
            
 
                 Claimant's tax return includes a Schedule C, Profit or 
 
            (Loss) from Business or Profession.  However, this includes 
 
            a deduction for depreciation totalling $8,758.  The rules 
 
            for depreciating a capital asset under the Internal Revenue 
 
            Code are not necessarily representative of the actual rate 
 
            at which the asset wears out or becomes obsolete.  Claimant 
 
            also shows $3,000 for legal and professional services.  It 
 
            cannot be said that claimant's Schedule C is necessarily 
 
            representative of his actual expenses in operating his truck 
 
            during 1986.  Rather, claimant has failed to meet his burden 
 
            of showing actual earnings.  Accordingly, the provisions of 
 
            section 85.36(8) should apply pursuant to D & C Express, 
 
            Inc. v. Sperry.
 
            
 
                 The record contains the opinion of office manager 
 
            Daniel Lawler to the effect that claimant's commission is 60 
 
            percent taxable and 40 percent considered expense.  This is 
 
            the best evidence in the record as to what portion of 
 
            claimant's actual compensation package is attributable to 
 
            his employment, as opposed to the rental value of his truck.  
 
            Sixty percent of $33,860 is $20,316.  Claimant worked almost 
 
            exactly 43 weeks before the injury.  One-forty-third of 
 
            $20,316 is $472.47.  It is accordingly held that claimant's 
 
            average gross weekly wage for purposes of this litigation is 
 
            $472.47.  A review of the Guide to Iowa Workers' 
 
            Compensation Claim Handling published by this office and 
 
            effective July 1, 1986, reflects that a married individual 
 
            with two exemptions and that average gross weekly wage is 
 
            entitled to a compensation rate of $288.14.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay unto claimant sixty-four point one 
 
            four three (64.143) weeks of healing period benefits at the 
 
            rate of two hundred eighty-eight and 14/100 dollars 
 
            ($288.14) per week commencing October 27, 1986 and totalling 
 
            eighteen thousand four hundred eighty-two and 16/100 dollars 
 
            ($18,482.16).
 
            
 
                 Defendants shall pay unto claimant fifty (50) weeks of 
 
            permanent partial disability benefits at the rate of two 
 
            hundred eighty-eight and 14/100 dollars ($288.14) per week 
 
            commencing January 19, 1988 and totalling fourteen thousand 
 
            four hundred seven and 00/100 dollars ($14,407.00).
 
            
 
                 Defendants shall have credit for all payments 
 
            voluntarily made prior to hearing.
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
                 All accrued weekly benefits shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 The costs of this action shall be assessed to 
 
            defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendants shall file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Stephen J. Juergens
 
            Attorney at Law
 
            200 Security Building
 
            Dubuque, Iowa  52001
 
            
 
            Mr. E. J. Giovannetti
 
            Attorney at Law
 
            Suite 111, Terrace Center
 
            2700 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803; 3001
 
                           Filed February 5, 1991
 
                           DAVID RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RAYMOND J. ENTRINGER,         :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 838993
 
            C & J SERVICE COMPANY,        :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            3001
 
            Claimant drove his own LP fuel truck and was paid a set 
 
            amount per gallon delivered.  Even though some parts of the 
 
            year were much busier than others, business never shut down 
 
            and was not "exclusively seasonal" under 85.36(9).  Rate was 
 
            calculated under 85.36(6) by claimant's "output."
 
            However, parties did not present evidence of claimant's 
 
            earnings during 13 weeks before motor vehicle accident.  
 
            Claimant's earnings during 43 weeks prior to October 27 
 
            injury were divided by 43 to get a weekly gross figure.  
 
            Claimant's tax return was not necessarily indicative of 
 
            actual truck expenses, so evidence that 60 percent was 
 
            considered wages was applied as per D & C Express v. Sperry.
 
            
 
            5-1803
 
            Fifty-eight-year-old claimant with ninth grade education 
 
            spent last 35 years as truck driver, 25 of those with 
 
            defendant.  Following rib, clavicle and other injuries, he 
 
            was given medical restrictions that impaired his efficiency, 
 
            but allowed him to return to same job; 10 percent industrial 
 
            disability awarded.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1402.30; 1801.1;
 
                           1802; 1803; 2206
 
                           Filed April 23, 1991
 
                           JEAN M. INGRASSIA
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RICHARD R. QUINONES,          :
 
                                          :         File No. 839079,
 
                 Claimant,                :         931306 & 930911
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            ALUMINUM COMPANY OF AMERICA,  :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            1402.30; 1801.1; 1802; 1803; 2206
 
            Claimant awarded temporary partial disability benefits in 
 
            claim #'s 839079 and 931306 and healing period and permanent 
 
            partial disability benefits in claim #930911 when he 
 
            aggravated a preexisting back condition.
 
            Defendant raised an 85.55 defense alleging that the above 
 
            injuries occurred directly or indirectly because of 
 
            claimant's preexisting physical defect (residual weakness as 
 
            a result of surgery for a herniated nucleus pulposus and he 
 
            waived his right to compensation when he signed the 85.55 
 
            agreement.
 
            The undersigned concluded that the compensable injuries in 
 
            this case were not a direct or indirect result of claimant's 
 
            physical defect, but an aggravation of a preexisting 
 
            condition which the Iowa Supreme Court has consistently held 
 
            to be compensable.  Ziegler v. United States Gypsum Co.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROGER D. WILLARDSON,
 
         
 
              Claimant,
 
                                         File No. 839245
 
         VS.
 
         
 
         THE ANDERSEN COMPANY,            A R B I T R A T I 0 N
 
         
 
              Employer,
 
                                         D E C I S I O N
 
         and
 
         
 
         WAUSAU INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Roger D. Willardson, against The Andersen Company, employer, and 
 
         Wausau Insurance Company, insurance carrier, to recover benefits 
 
         as a result of an injury sustained on October 24, 1986.  This 
 
         matter came on for hearing before the undersigned deputy 
 
         industrial commissioner in Storm Lake, Iowa, on March 20, 1989.  
 
         The record consists of the testimony of claimant, and joint 
 
         exhibits 1 through 38.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report, the parties have 
 
         stipulated all other matters and that the only issue to be 
 
         decided is the nature and extent of claimant's disability.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant began employment with defendant employer in 1983.  
 
         Claimant testified that on October 24, 1986, he injured his low 
 
         back when he was kneeling down attempting to pull a metal stake 
 
         out of a form while employed by defendant employer.  Claimant 
 
         stated that this stake had been pounded into the hard clay and 
 
         was used to hold the six inch sidewalk form in place.  Claimant 
 
         testified he sought medical help and missed six to seven months 
 
         of work because of this October 24, 1986 injury.  Claimant 
 
         indicated that the nature of his work with the employer comprised 
 
         of finishing, sawing, and wheelbarrowing concrete, lifting forms, 
 
         and driving a Bobcat and skid loader.  Claimant stated that he 
 
         was put on a Cybex equipment program for six months to strengthen 
 
         his back and muscles.  Claimant described
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         WILLARDSON V. THE ANDERSEN COMPANY 
 
         Page 2
 
         
 
         
 
         the Cybex machine as a machine that reacts with more resistance 
 
         when a person exerts more force.  Claimant testified that he 
 
         returned to work in May 1987 with an original 25 to 30 pound 
 
         weight restriction which increased to 75 pounds.  Claimant said 
 
         that he reached the 75 pound restriction after he was back to 
 
         work six weeks.  Claimant emphasized that he could lift 150 
 
         pounds prior to his October 1986 injury.  Claimant testified that 
 
         when he was using a wheelbarrow in connection with his 
 
         employment, he could not control the amount of weight that would 
 
         be placed in his wheelbarrow.  Claimant contended that the 
 
         wheelbarrow weight was controlled by the cement truck driver who 
 
         controlled the filling of the wheelbarrow.
 
         
 
              Claimant stated that he quit work with defendant employer 
 
         six to seven weeks after he returned because his back hurt and he 
 
         was in pain.  Claimant contended that there were occasions when 
 
         he would have to lift over 75 pounds.  Claimant stated he would 
 
         have help from another coworker to unload tamping machines 
 
         weighing 200 pounds.  Claimant indicated he would also have to 
 
         use vibrating machines.  Claimant emphasized that the required 
 
         bending and kneeling causes his back to hurt and his leg to 
 
         become numb.  Claimant said that because of his pain, his 
 
         attitude is bad.
 
         
 
              Claimant acknowledged that his work with defendant employer 
 
         is seasonal and that the employer unusually shuts down in October 
 
         or November of each year and a person then goes on unemployment 
 
         benefits.  Claimant admitted that he had a motor vehicle accident 
 
         in 1983 in which he incurred injuries, but indicated that he did 
 
         not injure his back.  Claimant admitted that over the years he 
 
         did have neck pains and lumbar strain and has seen a 
 
         chiropractor.      Claimant acknowledged that his record includes 
 
         two OMVUI convictions, public intoxication, and speeding tickets, 
 
         and that he now has his driver's license returned to him after 
 
         having lost it due to the OMVUI'S.
 
         
 
              When claimant returned to work with his work restrictions in 
 
         May 1987 for defendant employer,,the employer complied with the 
 
         doctor's restrictions 100 percent.  Claimant stated that the 
 
         employer is a good employer and indicated that he never 
 
         complained that his work exceeded his limitations.  Claimant 
 
         contended that his reasons for quitting work was because of his 
 
         back problems and pain and that he had told his employer that he 
 
         was tired of being on the road in pain.  Claimant admitted that 
 
         he also told defendant employer that he wanted to quit and be 
 
         closer to home and was tired of being on the road.
 
         
 
              In July 1988, claimant testified in his deposition:
 
              
 
              Q. Just so the record's clear, you never complained to 
 
              Reinhardt Andersen that you were being asked to do tasks 
 
              beyond the limitations of Dr. Donohue.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         WILLARDSON V. THE ANDERSEN COMPANY 
 
         Page 3
 
         
 
         
 
              A. No. That's why I quit.  I just thought I couldn't handle 
 
              it towards the end there.  I was bending and kneeling, 
 
              finishing concrete for long periods of time, you know, like 
 
              six hours -- half a day.  That's the reason I did leave.
 
              
 
              Q. Let me ask you this, though: Did you ever complain to 
 
              anybody and say, "Hey, is there something else that I can 
 
              do? This is bothering my back, and it exceeds Dr. Donohue's 
 
              limitations"?
 
              
 
              A. No, I did not.
 
              
 
              Q. You say you had to pull your weight because you were on a 
 
              crew.  Did anyone that was employed in a supervisory 
 
              capacity by the company give you a hard time about your 
 
              back?
 
              
 
              A. No.
 
              
 
              Q. What reason did you give Andersen and company for leaving 
 
              work?
 
              
 
              A. I told them -- I told Reinhardt Andersen that I wanted to 
 
              get back around home, I was tired of the road.  I didn't 
 
              tell him anything about the back or nothing.  It was like a 
 
              five-minute deal.  I came to work the following Wednesday 
 
              and said, "I'm done," you know.  I was to my limit there.  I 
 
              had enough of it, you know.  I got the old snide look, you 
 
              know, from Kusian, the foreman there, you know, and whatnot.  
 
              I just kind of had it.  I kind of --
 
         
 
         (Willardson Deposition,  Joint  Exhibit  38,  Pages  29-30)
 
         
 
              Claimant testified that since he quit his employer, he has 
 
         become self-employed, making various redwood signs for businesses 
 
         and homes with certain inscriptions, depending on what the 
 
         customers ordered or what he thought potential customers would 
 
         buy.  Claimant testified that he now travels a lot to fairs, 
 
         horse shows, and various events in Iowa, South Dakota and 
 
         Minnesota, showing and selling his products.  Claimant stated 
 
         that when he drives, he has discomfort, pain and numbness in his 
 
         legs due to sitting long hours.  Claimant later acknowledged that 
 
         he had also driven a motor home to Arizona and California to show 
 
         his goods.  Claimant stated that his only work now is the redwood 
 
         sign business and that his income is one-half of what it was when 
 
         he worked for defendant employer.
 
         
 
              Claimant said that from May 1987 to July 1988, he did not 
 
         look for work and was only in the redwood sign business.  
 
         Claimant indicated that he attempted concrete finishing 
 
         construction with Fagra Construction Company after he left 
 
         defendant
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         WILLARDSON V. THE ANDERSEN COMPANY 
 
         Page 4
 
         
 
         
 
         employer, but that this lasted only a week.  Claimant contended 
 
         that he could not do the kneeling, bending and lifting.  Claimant 
 
         'stated that this was work similar to.his work with defendant 
 
         employer.  Claimant also testified that he attempted to work for 
 
         a dye and molding manufacturer but stated he couldn't stand on 
 
         concrete floor and lift boxes of parts.  Claimant stated this job 
 
         caused discomfort in his back.
 
         
 
              J. Michael Donohue, M.D., on December 11, 1987,  wrote:
 
              
 
              
 
              ASSESSMENT: Lumbar disc syndrome--mild residual symptoms.
 
              
 
                 ...In [sic] encouraged him to continue in his current 
 
              type of employment as this requires much less repetitive 
 
              bending and lifting activities.  I would place a permanent 
 
              75 pound lifting restriction upon him and would place a 
 
              permanent impairment of 3% of the whole person with respect 
 
              to his back injury of October of 1986.
 
         
 
         (Joint Exhibit 1, page 2)
 
         
 
                                 LAW AND ANALYSIS
 
         
 
              As a claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial.disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              The opinion of the supreme court in Olson v. Goodyear 
 
         Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963) at 1121, 
 
         ____, cited with approval a decision of the industrial 
 
         commissioner for the following proposition:
 
         
 
              Disability * * * as defined by the Compensation Act means 
 
              industrial disability, although functional disability is an 
 
              element to be considered . . . In determining industrial 
 
              disability, consideration may be given to the injured 
 
              employee's age, education, qualifications, experience and 
 
              his inability, because of the injury, to engage in 
 
              employment for which he is fitted. * * * *
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         WILLARDSON V. THE ANDERSEN COMPANY
 
         Page 5
 
         
 
         
 
              This 33-year-old claimant was injured on October 24, 1986 
 
         while attempting to pull out a stake in a form, injuring his back 
 
         while employed by defendant employer.  Claimant had worked for 
 
         the employer beginning in 1983.  Part of that time, claimant had 
 
         done basically manual labor jobs which included doing concrete 
 
         finishing work and working at a meat cutting plant.  Claimant's 
 
         doctor placed a 75 pound permanent restriction on claimant.  
 
         Claimant contended that he was unable to do the manual type of 
 
         work for defendant employer that he was doing at the time of his 
 
         injury on October 24, 1986.  Claimant admitted that this employer 
 
         was a good employer who complied 100 percent with the doctor's 
 
         restrictions, and that because he was in so much pain, he quit.
 
         
 
              Approximately nine months before this hearing, claimant 
 
         testified, by deposition, that he was never asked to do tasks 
 
         beyond the limitation of his doctor and admitted that he never 
 
         complained to anyone that his back was bothering him.  At the 
 
         time of his deposition, claimant indicated.the reason he told 
 
         defendant employer that he was quitting was that he wanted to get 
 
         back around home and was tired of the road.  He indicated that he 
 
         did not tell defendant employer about his back.  Claimant 
 
         indicated that "I just wanted to get out of there.  I had it.  I 
 
         was just tired of it all, is what I said." After claimant quit in 
 
         May 1987, he did not look for work.  Claimant had not looked for 
 
         work up to the time of his deposition in July 1988.  Claimant has 
 
         ability in making signs and has been doing that, although he 
 
         indicated that his income is about half of what it was when he 
 
         worked for defendant employer.  There are no other financial data 
 
         in evidence.  Claimant is traveling in various states in his 
 
         redwood sign business.  Claimant did attempt to find a couple of 
 
         jobs since his injury on October 24, 1986, but was unable to 
 
         perform them as they required lifting and this caused his back to 
 
         hurt.  Claimant appears satisfied in the work he is doing.
 
         
 
              Claimant has a 3 percent impairment to his body as a whole, 
 
         as opined by Dr. Donohoe.  There is no evidence that claimant has 
 
         made a search into other jobs that would be within his 75 pound 
 
         permanent lifting restriction and would not necessarily be in the 
 
         construction field.  The evidence shows that the employer 
 
         complied with claimant's medical restrictions and was willing to 
 
         continue with the employment of this claimant, who then 
 
         voluntarily quit.  Claimant has a minimal loss of earning 
 
         capacity of 5 percent.
 
         
 
         
 
         
 
         WILLARDSON V. THE ANDERSEN COMPANY
 
         Page 6
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, it is found:
 
         
 
              1. Claimant injured his low back on October 24, 1986 when he 
 
         attempted to pull a stake from the ground while employed by 
 
         defendant employer.
 
         
 
              2. Claimant's disability is a result of his injury on 
 
         October 24, 1986.
 
         
 
              3. Claimant has been paid all healing period benefits to 
 
         which he may be entitled.
 
         
 
              4. Claimant has a 3 percent impairment to his body as a 
 
         whole.
 
         
 
              5. Claimant voluntarily quit his employment with defendant 
 
         employer.
 
         
 
              6. Defendant employer complied with claimant's 75 pound 
 
         medical restriction.
 
         
 
              7. Claimant has a 5 percent loss of earning capacity.
 
         
 
                                   CONCLUSIONS
 
         
 
              THEREFORE, it is concluded:
 
         
 
              Claimant's injury arose out of and in the course of his 
 
         employment with defendant employer on October 24, 1986.
 
         
 
              Claimant's disability is causally connected to his injury of 
 
         October 24, 1986.
 
         
 
              Claimant has been paid all healing period benefits to which 
 
         he may be entitled.
 
         
 
              Claimant has a 3 percent impairment to the body as a whole.
 
         
 
              Claimant has a 5 percent industrial disability.
 
         
 
                                      ORDER
 
                                        
 
              THEREFORE, it is ordered:
 
         
 
              That claimant is entitled to twenty-five (25) weeks of 
 
         permanent partial disability benefits at the weekly rate of two 
 
         hundred three and 91/100 dollars ($203.91), beginning January 11, 
 
         1988.
 
         
 
              That claimant is entitled to no additional healing period
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         WILLARDSON V. THE ANDERSEN COMPANY
 
         Page 7
 
         
 
         
 
         benefits only than what has already been paid and agreed to by 
 
         the parties.
 
         
 
              That defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against the award for weekly 
 
         benefits previously paid.  In addition to the healing period 
 
         benefits previously paid, defendants have paid three percent (3%) 
 
         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 award as required by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 17th day of April, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                         BERNARD J. O'MALLEY
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Richard Meyer
 
         Attorney at Law
 
         104 North 7th St
 
         Estherville, IA 51334
 
         
 
         Mr. Joseph L. Fitzgibbons
 
         Attorney at Law
 
         108 N. Seventh St
 
         P.O. Box 496
 
         Estherville, IA 51334
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         51803
 
                                         Filed April 17, 1989
 
                                         Bernard J. O'Malley
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROGER D. WILLARDSON,
 
          
 
              Claimant,
 
                                         File No. 839245
 
          VS.
 
          
 
          THE ANDERSEN COMPANY,          A R B I T R A T I 0 N
 
          
 
               Employer,                 D E C I S I 0 N
 
          
 
          VS.
 
          
 
          WAUSAU INSURANCE CO.,
 
          
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
         51803
 
         
 
              Claimant awarded 5% industrial disability.  Doctor opined 3% 
 
         impairment to claimant's back.  Greater weight of evidence 
 
         indicated claimant voluntarily quit construction work with 
 
         employer to spend full time in claimant's redwood sign making 
 
         business which resulted in less income and less time away from 
 
         claimant's family.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RANDY STOEN,
 
         
 
              Claimant,                               File No. 839492
 
         
 
         vs.                                       A R B I T R A T I O N
 
         
 
         FOSWELL, INC.,                               D E C I S I O N
 
         
 
              Employer,
 
                                                         F I L E D
 
         and
 
                                                        MAY 31 1990
 
         UNITED FIRE & CASUALTY CO.,
 
                                               IOWA INDUSTRIAL 
 
         COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration upon the petition of 
 
         claimant, Randy Stoen, against his employer, Foswell, Inc., and 
 
         its insurance carrier, U.S.F. & G, defendants.  The case was 
 
         heard on May 7, 1990, in Des Moines, Iowa at the office of the 
 
         industrial commissioner.  The record consists of the testimony of 
 
         claimant and the testimony of Lloyd LuVern Knapp, Jr. 
 
         Additionally, the record consists of joint exhibits A-M.
 
         
 
                                      ISSUES
 
         
 
              The sole issues to be determined are:  1) whether claimant 
 
         received an injury which arose out of and in the course of 
 
         employment; 2) whether there is a causal relationship between the 
 
         alleged injury and the disability; and, 3) whether claimant is 
 
         entitled to temporary disability/healing period benefits or 
 
         permanent partial disability benefits.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The deputy, having heard the testimony and considered all 
 
         the evidence, finds:
 
         
 
              Claimant is 41 years old.  He was hired on September 29, 
 
         1986, by defendant-employer as a cement finisher.  Claimant was 
 
         hired to repair and/or replace driveways and city sidewalks in 
 
         Mason City, Iowa.  Claimant was assigned various duties which 
 
         included carpentry, general labor and even foreman 
 
         responsibilities.
 
         
 
              On September 29, 1986, claimant was replacing driveways.  
 
         The work included pouring wet cement and placing a screen across 
 
         the cement.  Claimant sustained a work injury on that day when he 
 
         lifted the top end of a finishing machine.  He picked up the 
 
         machine, stepped off the edge of a driveway, and stepped into a 
 
         hole.  Claimant testified he felt a pull on his right side at his 
 
         groin area and that he experienced increasing pain.  Claimant, as 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         a result, sought medical treatment from his family physician, 
 
         Francis L. Pisney, M.D.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              At the hearing, Lloyd LuVern Knapp, Jr., testified claimant 
 
         did not move the concrete finisher on the 29th of September, 
 
         1986. Mr. Knapp testified he overhead claimant tell another 
 
         employee that claimant's girlfriend had kicked him in the lower 
 
         part of his body.  The witness was determined to be less credible 
 
         than claimant.
 
         
 
              Claimant was referred to Herbert E. Gude, M.D., a surgeon. 
 
         Dr. Gude performed surgery on November 24, 1986, for a right 
 
         inguinal hernia repair.  Complications developed subsequent to 
 
         the first surgery.  According to Dr. Gude, claimant "had symptoms 
 
         of burning, indicative of an inguinal nerve."  (Defendants' 
 
         Exhibit E, page 002).  Claimant held jobs for four weeks in April 
 
         of 1987 and he worked at Land O'Lakes from June 15, 1987 to 
 
         August 1, 1987.
 
         
 
              A neuroma developed and Dr. Gude performed a second surgery 
 
         on August 5, 1987.  Claimant was released from the hospital on 
 
         August 7, 1987 and he continued to see Dr. Pisney.  Claimant was 
 
         released to return to work on November 14, 1987, by Dr. Gude.
 
         
 
              Claimant was arrested for the third time for operating a 
 
         motor vehicle while intoxicated.  The arrest occurred subsequent 
 
         to claimant's release from the hospital in August of 1987.  As a 
 
         result of the arrest, claimant was incarcerated from March 23, 
 
         1988 to August 5, 1988.  Claimant continued to see Dr. Pisney 
 
         while he was incarcerated.  Dr. Pisney released claimant to 
 
         return to work on August 22, 1988.
 
         
 
              Claimant obtained construction work after his release from 
 
         jail in August of 1988.  He has continued working in the 
 
         construction field since that time.
 
         
 
              After claimant initiated his contested case proceeding, he 
 
         was examined on October 27, 1989, by defendants' physician, 
 
         Michael W. Kent, M.D. Dr. Kent opined claimant could have 
 
         returned to work six weeks after his second surgery.  Dr. Kent 
 
         wrote in his report of October 31, 1989:
 
         
 
                   1.  Diagnosis:  This patient has a post hernia repair 
 
              type of pain, which has been complicated with the 
 
              development of a "neuroma" and excision of same with 
 
              persistence of hyperesthesia in the right groin area, which 
 
              are subjectively present.
 
                   2.  Cause of the condition:  Is related to the hernia 
 
              and subsequent surgery thereof.
 
                   3.  I do not feel that the patient has sustained any 
 
              permanent functional impairment as the result of this injury 
 
              and feel that he could probably engage in his former 
 
              occupation, if he so desired.
 
                   4.  It is very difficult to put a date as to when the 
 
              claimant could have gone back to work subsequent to his 
 
              injury.  Ordinarily this would be within six weeks of the 
 
              surgery.  His, of course, was complicated with "diagnosis of 
 
              a neuroma" but even after excision of that, I think that 
 
              within six weeks he would be back to work.  Again, it is 
 
              difficult to read between the lines of his office visits.  
 
              It is further complicated with a jail sentence and perhaps 
 
              lack of adequate documentation.  The bottom line, it is 
 
              basically impossible to really put a true date to this.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
                   5.  My thought is that he probably will reach maximum 
 
              recovery from his injury and surgeries within six weeks 
 
              after the last one.  Again, this is open to speculation and 
 
              I would think that probably the best answer to that question 
 
              could be given by the operating surgeon or Dr. Pisney.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on September 29, 1986, which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The words "in the.course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63 
 
         (1955).
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it."  Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283 (Iowa 1971); 
 
         Musselman, 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 September 29, 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, 261 Iowa 352, 154 
 
         N.W.2d 128 (1967).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant has proven by a preponderance of the evidence that 
 
         he sustained an injury which arose out of and in the course of 
 
         his employment.  Claimant's description of the events leading up 
 
         to the injury was credible.
 
         
 
              Mr. Lloyd Knapp testified claimant could not have injured 
 
         himself at work.  However, the undersigned determined claimant 
 
         was more coherent and more credible.
 
         
 
              Claimant reported the same sequence of events to his 
 
         treating physician, Dr. Pisney, several days after the work 
 
         injury.  In his deposition of August 3, 1989, Dr. Pisney causally 
 
         related claimant's hernia condition to claimant's construction 
 
         work.  Dr. Pisney also related the post-operative neuroma to 
 
         claimant's first surgery.  Finally, Dr. Pisney related claimant's 
 
         pain and discomfort to claimant's' initial surgery and the 
 
         resulting complications.  Claimant has proven by, a preponderance 
 
         of the evidence that his injuries, and the two resulting 
 
         surgeries, were causally related to claimant's work injury on 
 
         September 29, 1986.
 
         
 
              Claimant has not proven that he has any permanent partial 
 
         disability.  No physician has opined there is a permanent partial 
 
         impairment.  Even claimant's own treating physician has opined:
 
         
 
              For the future, Mr. Stoen may experience a minor reduction 
 
              of feeling and sensation at the right groin and inner thigh, 
 
              but it is without any permanent disability and should be 
 
              able to carry forward gainful employment and work 
 
              activity...
 
         
 
                   Q.  Mr. Stoen will not have any permanent impairment as 
 
              a result of the injury and the surgery?
 
                   
 
                   A.  He will have some minor, perhaps, loss of 
 
              sensation, but that's all he should have.
 
                   
 
                   Q.  But you wouldn't assess or provide him with any 
 
              impairment rating?
 
                   
 
                   A.  That is correct, I would not.
 
                   
 
         (Claimant's Ex. 1, p. 10, lines 8-13, 16-23)
 
         
 
              Claimant has proven he has a temporary total disability. 
 
         Section 85.33(1) governs the payment of temporary total 
 
         disability benefits.  The section provides:
 
         
 
                   1.  Except as provided in subsection 2 of this section, 
 
              the employer shall pay to an employee for injury producing 
 
              temporary total disability weekly compensation benefits, as 
 
              provided in section 85.32, until the employee has returned 
 
              to work or is medically capable of returning to employment 
 
              substantially similar to the employment in which the 
 
              employee was engaged at the time of injury, whichever occurs 
 
              first.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant was originally off work from September 30, 1986 to 
 
         April _ , 1987, and from May _ , 1987 to June 15, 1987.  Claimant 
 
         was also off work from August 5, 1987 to August 21, 1988.  The 
 
         parties have stipulated claimant is requesting additional payment 
 
         for the period November 14, 1987 to August 21, 1988.  This 
 
         comprises a period of 40.286 weeks.
 
         
 
              On August 5, 1987, claimant was hospitalized for his second 
 
         surgery.  Initially, Dr. Pisney was going to release claimant to 
 
         return to work on November 14, 1987, but claimant, according to 
 
         the physician, was experiencing a pulling sensation and some 
 
         tenderness.  Dr. Gude, the surgeon, concurred with Dr. Pisney.
 
         
 
              A consultant, Dr. P. R. Recinos, M.D., opined claimant could 
 
         return to work as of December 2, 1987.  Another consultant, 
 
         Michael J. Kitchell, M.D., opined that as of January 15, 1988, 
 
         claimant could return to light.duty work.  A third physician, 
 
         Michael Kent, M.D., performed an independent medical more than 
 
         two years after the second surgery.  He opined claimant could 
 
         have returned to work six weeks after his second surgery.  The 
 
         date would have been September 16, 1987.  However, not much 
 
         weight is accorded to the opinion of Dr. Kent since he did not 
 
         examine claimant during the crucial period in question.
 
         
 
              Finally, there is the second opinion of Dr. Pisney.  He 
 
         released claimant on August 22, 1988.  This date was after 
 
         claimant's incarceration from March 23, 1988 to August 5, 1988, 
 
         and after claimant's request for a release to return to work.
 
         
 
              It is the determination of the undersigned that claimant was 
 
         medically capable of returning to employment substantially 
 
         similar to the employment in which the employee was engaged at 
 
         the time of the injury, as of the date claimant entered the 
 
         Hardin County jail.  The date was March 23, 1988.  Claimant, on 
 
         the 23rd of March, was capable of handling the rigors of jail.  
 
         Claimant was also able to engage in mopping and sweeping while he 
 
         was incarcerated.  Therefore, it stands to reason, claimant would 
 
         have been capable of handling substantially similar employment on 
 
         March 23rd.  In light of the above, claimant was temporarily and 
 
         totally disabled from November 14, 1987 to March 23, 1988. it is 
 
         a period of 18.714 weeks.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants are to pay additional temporary total disability 
 
         benefits for the period from November 14, 1987 to March 23, 1988, 
 
         a period of eighteen point seven-one-four (18.714). weeks at the 
 
         stipulated rate of two hundred thirty-two and 94/100 dollars 
 
         ($232.94) per week.
 
         
 
              Defendants shall received credit for all benefits paid and 
 
         not previously credited.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Costs of the action shall be assessed to defendants pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendants shall file a claim activity report as requested 
 
         by this division pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 31st day of May, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            MICHELLE A. McGOVERN
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Barry Moranville
 
         Attorney at Law
 
         West Bank Bldg
 
         1601 22nd St, Suite 212
 
         Des Moines, IA  50265
 
         
 
         Mr. Marvin E. Duckworth
 
         Attorney at Law
 
         2700 Grand Ave
 
         Des Moines, IA  50312
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1100; 5-1801
 
                                            Filed May 31, 1990
 
                                            MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RANDY STOEN,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                     File No. 839492
 
         FOSWELL, INC.,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         UNITED FIRE & CASUALTY CO.,
 
         
 
              Insurance carrier,
 
              Defendants.
 
         
 
         
 
         5-1100; 5-1801
 
         
 
              Claimant was found to have a temporary total disability 
 
         after claimant sustained a hernia while lifting a piece of 
 
         concrete finishing machine.  The injury arose out of and in the 
 
         course of claimant's employment.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RANDY STOEN,
 
                                                    Filed No. 839492
 
              Claimant,
 
                                                         N U N C
 
         vs.
 
                                                          P R 0
 
         FOSWELL, INC.,
 
                                                         T U N C
 
              Employer,
 
                                                        0 R D E R
 
         and
 
                                                       F I L E D
 
         UNITED FIRE & CASUALTY CO.,
 
                                                       JUN 11 1990
 
              Insurance Carrier,
 
              Defendants.                      IOWA INDUSTRIAL 
 
              COMMISSIONER
 
                                                 
 
         
 
         
 
              There was an inadvertent error in the decision and order.  
 
         The following should be added to the order filed on May 31, 1990:
 
         
 
              Payments that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         
 
              All other portions of the decision and order remain the 
 
         same.
 
         
 
              Signed and filed this 11th day of June, 1990.
 
         
 
         
 
         
 
         
 
                                            MICHELLE A. McGOVERN
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Barry Moranville
 
         Attorney at Law
 
         West Bank Bldg
 
         1601 22nd St, Suite 212
 
         Des Moines, IA  50265
 
         
 
         Mr. Marvin E. Duckworth
 
         Attorney at Law
 
         2700 Grand Ave
 
         Des Moines IA 50312
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        RICHARD K. BOLANDER, JR.,
 
        
 
           Claimant,                     File No. 839535
 
        
 
        vs.                               A P P E A L
 
        
 
        PEOPLES DRUG STORES, INC.,      D E C I S I O N
 
        
 
           Employer,
 
        
 
        and
 
        
 
        CIGNA INSURANCE COMPANY,
 
        
 
           Insurance Carrier,
 
           Defendants.
 
        
 
                                 STATE OF THE CASE
 
        
 
        Claimant appeals from a ruling granting defendants' motion for 
 
        summary judgment.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        Claimant has filed a petition in arbitration, alleging an injury 
 
        to his eye. Defendants have filed a motion for summary judgment 
 
        alleging that no justiciable controversy exists. Claimant is 
 
        currently receiving healing period benefits and medical benefits. 
 
        Defendants have acknowledged in their answer that claimant has 
 
        suffered an injury arising out of and in the course of his 
 
        employment, but deny causation and dispute the nature and extent 
 
        of disability. No rating of impairment has been issued. Claimant 
 
        has acknowledged in his appeal brief that his condition is still 
 
        unstable. In claimant's resistance to motion for summary 
 
        judgment; claimant acknowledges that his healing period is no. 
 
        yet completed. Claimant's medical evidence shows that claimant is 
 
        legally blind" in his left eye. Claimant has amended his petition 
 
        to raise the issues of 86.13 penalty and the applicability of 
 
        the odd-lot doctrine.
 
        
 
                                 APPLICABLE LAW
 
        
 
        Industrial Services Rule 343-4.35 states:
 
        
 
        The rules of civil procedure shall govern the contested case 
 
        proceedings before the industrial
 
        
 
        BOLANDER V. PEOPLES DRUG STORES, INC.
 
        Page 2
 
        
 
        
 
        commissioner unless the provisions are in conflict with these 
 
        rules and Iowa Code chapters 85, 85A, 85B, 86, 87 and 17A, or 
 
        obviously inapplicable to the industrial commissioner. In those 
 
        circumstances, these rules or the appropriate Iowa Code section 
 
        shall govern. Where appropriate, reference to the word "court" 
 
        shall be deemed reference to the "industrial commissioner."
 
        
 
        Iowa Code section 85.34(1) states:
 
        
 

 
        
 
 
 
 
 
        If an employee has suffered a personal injury causing permanent 
 
        partial disability for which compensation is payable as provided 
 
        in subsection 2 of this section, the employer shall pay to the 
 
        employee compensation for a healing period, as provided in 
 
        section 85.37, beginning on the date of injury, and until the 
 
        employee has returned to work or it is medically indicated that 
 
        significant improvement from the injury is not anticipated or 
 
        until the employee is medically capable of returning to 
 
        employment substantially similar to the employment in which the 
 
        employee was engaged at the time of injury, whichever occurs 
 
        first.
 
        
 
        Iowa Rule of Civil Procedure 237 provides:
 
        
 
        Summary judgment may be had under the following conditions and 
 
        circumstances:
 
        
 
        (b) For defending party. A party against whom a claim, 
 
        counterclaim, or cross-claim is asserted or a declaratory 
 
        judgment is sought may, at any time, move with or without 
 
        supporting affidavits for a summary judgment in his favor as to 
 
        all or any part thereof.
 
        
 
        (c).The judgment sought shall be rendered forthwith if the 
 
        pleadings, depositions, answers to interrogatories, and 
 
        admissions on file, together with the affidavits, if any, show 
 
        that there is no genuine issue as to any material fact and that 
 
        the moving party is entitled to a judgment as a matter of law.
 
        
 
        
 
        The purpose of a summary judgment is to allow a judgment to be 
 
        obtained promptly without the time and expense of a trial. The 
 
        entire record, including the pleadings, admissions, depositions,
 
        
 
        BOLANDER V. PEOPLES DRUG STORES, INC.
 
        Page 3
 
        
 
        
 
        answers to interrogatories and affidavits, must be read in the 
 
        light most favorable to the party opposing the motion to 
 
        determine if there is any genuine issue of material fact. 
 
        Drainage District No. 119 v. Incorporated City of Spencer, 268 
 
        N.W.2d 493, 499 (Iowa 1978). Keener v.Den Tal Ez Manufacturing 
 
        Co., III Iowa Indus. Comm. Report 152 (1983).
 
        
 
                                      ANALYSIS
 
        
 
        Defendants have moved for summary judgment, alleging there is no 
 
        genuine issue of material fact. Iowa Rule of Civil Procedure 237, 
 
        dealing with motions for summary judgment, is incorporated into 
 
        these proceedings by Industrial Services Rule 343-4.35.
 
        
 
        In the instant case, claimant has not reached maximum recovery. 
 
        Claimant admits this. Even if claimant's assertion that the 
 
        medical opinion that claimant is "legally blind" is equivalent to 
 
        a finding of permanency, the extent of the disability cannot be 
 
        ascertained while claimant's condition is still changing. 
 
        Claimant himself describes his condition in his pleadings as 
 
        "unstable." Therefore, it cannot be determined at this point in 
 
        time what the nature and extent of claimant's permanent 
 
        disability, if any, will be. There being no genuine issue of 
 
        material fact upon which relief can be granted, defendants' 
 
        motion for summary judgment should be granted. The issues raised 
 
        in claimant's amendment to the petition, applicability of the 
 
        odd-lot doctrine and 86.13 penalty, are not ripe for 
 
        adjudication.
 

 
        
 
 
 
 
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Claimant has not reached maximum recovery.
 
        
 
        2. Genuine issues of material fact do not exist in this case.
 
        
 
        3. Defendants are entitled to a summary judgment.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        Defendants' motion for summary judgment should be granted.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed.
 
        
 
                                      ORDER
 
        
 
        THEREFORE, it is ordered:
 
        
 
        That defendants' motion for summary judgment is granted.
 
        
 
        BOLANDER V. PEOPLES DRUG STORES, INC.
 
        Page 4
 
        
 
        
 
        That claimant is to pay the costs of this action.
 
        
 
        Signed and filed this 27th day of September, 1988.
 
        
 
        
 
        
 
                                          DAVID E. LINQUIST
 
                                       INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         RICHARD K. BOLANDER, JR.,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                        File No. 839535
 
         PEOPLES DRUG STORES, INC.,
 
                                                          R U L I N G
 
              Employer,
 
         
 
         and
 
         
 
         CIGNA INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
              On July 15, 1987 defendants filed an objection to Notice of 
 
         Appeal and Motion to Dismiss Notice of Appeal.  Claimant having 
 
         filed a resistance, the same comes on for determination.
 
         
 
              It is determined that claimant's appeal is not interlocutory 
 
         and therefore permissible.
 
         
 
              WHEREFORE, defendants' motion is overruled.
 
         
 
         
 
              Signed and filed this 4th day of August, 1987.
 
         
 
         
 
         
 
         
 
                                             DAVID E. LINQUIST
 
                                             ACTING INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Steven S. Hoth
 
         Attorney at Law
 
         200 Jefferson Street
 
         P.O. Box 1105
 
         Burlington, Iowa 52601
 
         
 
         Mr. E. J. Kelly
 
         Attorney at Law
 
         2700 Grand Ave., Suite 111
 
         Des Moines, Iowa 50312
 
         
 
         
 
         
 
 
 
                                                
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JOHN D. BAILEY,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 839577
 
            ROBINSON CONSTRUCTION CO.,    :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE FARM FIRE & CASUALTY    :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by 
 
            claimant, John Bailey, against his former employer, Robinson 
 
            Construction Company, and its insurance carrier, State Farm 
 
            Fire & Casualty Company.  The matter came on for hearing 
 
            before the undersigned deputy industrial commissioner on 
 
            January 14, 1993, at Mason City, Iowa.
 
            
 
                 The evidence in the case consists of testimony from the 
 
            claimant; and, joint exhibits 1 through 15.
 
            
 
                                      issue
 
            
 
                 In accordance with the prehearing report submitted by 
 
            the parties at the hearing, the following issue is presented 
 
            for resolution:
 
            
 
                 1.  The nature and extent of claimant's disability.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence received, finds the following facts:
 
            
 
                 Claimant was born on October 2, 1940.  At the time of 
 
            the hearing, he was 51 years of age.
 
            
 
                 Claimant quit high school in the eleventh grade and has 
 
            not received his GED.  He has pursued no further education.
 
            
 
                 Claimant's job experiences have been concentrated in 
 
            the labor field.  Included in claimant's work history are 
 
            positions with two meat packing companies and employment as 
 
            a staff member at the Handicap Village.  Throughout most of 
 
            his life, claimant has worked in the construction and 
 
            carpentry field.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 In 1980, claimant began to work for Robinson 
 
            Construction Company as a laborer and carpenter.  On 
 
            November 28, 1986, as he was working on a storage bin 
 
            located at a farm southeast of Mason City, claimant was 
 
            holding onto a piece of tin which came into contact with a 
 
            high voltage wire.  Apparently, the wire generated 
 
            approximately 8,000 volts.
 
            
 
                 Claimant was taken to St. Joseph Mercy Hospital in 
 
            Mason City, Iowa.  He received emergency treatment and then 
 
            was flown to the University of Iowa Hospitals and Clinics in 
 
            Iowa City (Joint Exhibit 1).
 
            
 
                 Claimant had sustained entry wounds to the palms of 
 
            both hands, and exit wounds on the right shin, the back of 
 
            the thigh on the left leg and the left buttock (Jt. Exs. 1 
 
            and 2).
 
            
 
                 Claimant underwent skin grafts to the exit wounds.  He 
 
            also underwent reconstructive surgery on his left hand which 
 
            included a two stage tendon graft.  Specifically, the 
 
            reconstruction involved inserting a plastic rod to 
 
            claimant's left index finger.  These procedures were 
 
            performed in July and November of 1987 (Jt. Ex. 2, pp. 26-
 
            29).  Claimant was released to return to work in a light 
 
            duty status on May 16, 1988 (Jt. Ex. 2, p. 32).  On August 
 
            22, 1988, he was released to return to full duty although he 
 
            was still experiencing numbness at the radial aspect of the 
 
            index finger on the left hand (Jt. Ex. 2, p. 33).
 
            
 
                 In August of 1987, claimant also was diagnosed as 
 
            having eczema in the palm area of the left hand.  It was 
 
            recommended that he wear rubber gloves while performing job 
 
            duties (Jt. Ex. 2, p. 34).  In May of 1988, claimant 
 
            continued to complain of chronic dermatitis of the left hand 
 
            and was treated for the same throughout June, August and 
 
            September of 1988.  It was recommended that claimant apply 
 
            Vaseline and wear gloves to combat the dermatitis (Jt. Ex. 
 
            2, p. 35).
 
            
 
                 For the eczema/dermatitis problem, claimant had been 
 
            treated by Curtis Steyers, Jr., M.D. at the University of 
 
            Iowa Hospitals and Clinics.  Dr. Steyers submitted several 
 
            reports on claimant's condition including reports dated 
 
            April 12, 1988 (Jt. Ex. 5), May 13, 1988 (Jt. Ex. 6), and 
 
            September 2, 1988 (Jt. Ex. 8).  Of particular note is the 
 
            latter report.  Dr. Steyers states that based on the AMA 
 
            Guides to the Evaluation of Permanent Impairment, the 
 
            second edition, claimant had sustained a permanent partial 
 
            impairment of 21 percent of the left hand.  He based this 
 
            rating on claimant's difficulties in performing his 
 
            occupation as a laborer/carpenter due to abnormal sensation, 
 
            restricted motion and slightly diminished grip strength in 
 
            the left hand.  Dr. Steyers had released claimant to return 
 
            to full duty work as of August 22, 1988 (Jt. Ex. 8).
 
            
 
                 G.P. Kealey, M.D., the director of the Burn Center at 
 
            the University of Iowa Hospitals and Clinics, provided a 
 
            report in April of 1989.  After reviewing claimant's 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            symptoms, Dr. Kealey noted claimant's complaints of 
 
            increased dryness and itching of the hands, as well as 
 
            increased sensitivity to cold weather.  At the ares of the 
 
            skin grafts on both thighs and the right calf, claimant 
 
            showed decrease sensation to touch.  Dr. Kealey assigned 
 
            claimant to a Class One skin impairment of the whole person.  
 
            Specifically, he stated:
 
            
 
                 A patient belongs in Class One when: a) signs and 
 
                 symptoms of a skin disorder are present, and c) 
 
                 with treatment there is no limitation, or minimal 
 
                 limitation, in performance of the activities of 
 
                 daily living although exposure to certain physical 
 
                 or chemical agents might increase limitation 
 
                 temporarily.  I feel you do fall into Class One 
 
                 because you do have signs and symptoms of a skin 
 
                 disorder which treated with protective clothing 
 
                 ans [sic] skin lotions and you have minimal 
 
                 interference with the activities of daily living 
 
                 and employment.  On the basis of your skin 
 
                 disability I assign you a 1% whole man disability.
 
            
 
            (Jt. Ex. A).
 
            
 
                 Dr. Kealey also stated that this impairment rating was 
 
            separate from Dr. Steyers' rating to the left hand (Jt. Ex. 
 
            9).
 
            
 
                 Claimant began treating with Warren W. Piette, M.D., 
 
            for his dermatologic problems.  Four reports from Dr. Piette 
 
            were introduced into evidence (Jt. Exs 10-13).  In January 
 
            of 1990, Dr. Piette recommended continuing intensive topical 
 
            therapy including application of appropriate medications to 
 
            the hands under wet cotton and vinyl gloves.  He did not 
 
            anticipate that the therapy would continue indefinitely (Jt. 
 
            Ex. 10).  In November of 1990, Dr. Piette was of the opinion 
 
            that claimant's condition was improving and was unable to 
 
            ascertain how much of the condition was aggravated by "his 
 
            former specific job, but hand eczema is viewed as a 
 
            condition which is inborn and which ultimately tends to be 
 
            expressed in most individuals, but which may be greatly 
 
            exacerbated by work or home exposure of the hands to 
 
            irritating or drying substances." (Jt. Ex. 11)  Dr. Piette 
 
            was unable to state that claimant had been significantly 
 
            impaired (Jt. Ex. 11).
 
            
 
                 In January of 1991, Dr. Piette's report indicates that 
 
            claimant still suffered from ongoing hand eczema with 
 
            dryness and scaling involving 40 to 50 percent of the left 
 
            palm and 30 percent of the right palm with minimal erythema 
 
            and scaling over both wrists.  Dr. Piette was of the opinion 
 
            that claimant was 0 percent disabled with respect to hand 
 
            involvement due directly to the burn injury and 0 percent 
 
            disabled due to chronic hand dermatitis.  Dr. Piette went on 
 
            to state:
 
            
 
                    The exact relationship of the hand eczema to 
 
                 the preceding burn injury is theoretical.  The 
 
                 phenomenon of various skin eruptions arising first 
 
                 in the site of previous injury is well 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 established.  However, I have no way of knowing 
 
                 whether Mr. Bailey would have demonstrated hand 
 
                 eczema without burn injury.  The bottom line is 
 
                 there appears to be no evident residual functional 
 
                 impairment due to scarring or lack of healing from 
 
                 the burn injury, and there was no disability based 
 
                 on the October 11, 1990 visit with respect to the 
 
                 hand dermatitis.
 
            
 
            (Jt. Ex. 12)
 
            
 
                 Dr. Piette's final report, dated July 30, 1991, 
 
            indicates that due to the dermatitis, claimant was required 
 
            to use hand creams and gloves on a near continuous basis.  
 
            His condition limited his participation in at-home work.  
 
            Dr. Piette was of the opinion that claimant fit into the 
 
            Class III classification under the AMA Guides to the 
 
            Evaluation of Permanent Impairment.  He described this as a 
 
            patient who has signs and symptoms of a skin disorder which 
 
            needed constant treatment and limited the performance of 
 
            many activities of daily living.  Dr. Piette stated that 
 
            claimant was "in the 25 percent impairment category."  
 
            Again, Dr. Piette reiterated his view of the causal 
 
            connection between claimant's condition and his injury:
 
            
 
                 However, I must add now as I have emphasized in 
 
                 the past that while I feel his hand dermatitis is 
 
                 a definite complication for his daily living, 
 
                 neither my experience nor the medical literature 
 
                 can prove that his hand dermatitis is related to 
 
                 the burn injury.  Such a determination is in my 
 
                 opinion beyond the bounds of current medical 
 
                 knowledge.
 
            
 
            (Jt. Ex. 13)
 
            
 
                 Finally, claimant was evaluated by Christopher L. 
 
            Hedberg, M.D., a dermatologist in the Mason City area.  His 
 
            report, dated August 29, 1991, states that he agreed with 
 
            Dr. Piette's assessment that claimant had sustained a 25 
 
            percent impairment due to the hand dermatitis.  Dr. Hedberg 
 
            was of the opinion that the dermatitis was secondary to the 
 
            electrical burn injury sustained on November 28, 1986 (Jt. 
 
            Ex. 14).
 
            
 
                 Dr. Hedberg also states that even absent an initial 
 
            report of a burn injury to the right palm or to either 
 
            wrist, he still felt that claimant had received injuries to 
 
            these areas.  And, to substantiate his finding of a causal 
 
            connection between claimant's work-related accident and the 
 
            subsequent dermatitis, he cited that claimant had not 
 
            suffered from hand dermatitis prior to November 28, 1986 
 
            (Jt. Ex. 14).
 
            
 
                 Although claimant attempted to return to work at 
 
            Robinson Construction Company, once he was returned to light 
 
            duty work, Robinson failed to re-employ claimant due to lack 
 
            of light duty jobs.  Claimant subsequently began working for 
 
            his current employer, LeHigh Portland Cement Company where 
 
            he performs work as a burner and burner helper.  Claimant 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            began working for Lehigh in June of 1989 as a laborer and 
 
            earned $10.97 per hour.  Currently, he earns $14.02 per 
 
            hour.
 
            
 
                 Claimant brought with him to the hearing various creams 
 
            and lotions that he used on his hands to combat the 
 
            dermatitis.  He stated that his left hand was "a lot weaker" 
 
            currently than before the accident, although his right hand 
 
            performed in a normal fashion.  He has minor scars on both 
 
            palms of the hand, and avoids exposure to sun.  His hands 
 
            were sensitive to hot and cold temperature, and claimant 
 
            felt numbness in the area of the dermatitis particularly in 
 
            the index and small finger on the left hand where he 
 
            sustained nerve damage.  He also stated that his legs in the 
 
            areas of the skin grafts at times felt tight.
 
            
 
                         analysis and conclusions of law
 
            
 
                 The sole issue to be determined is the nature and 
 
            extent of claimant's disability.
 
            
 
                 According to the prehearing report filled out by the 
 
            parties, it indicates that claimant has been paid 44.9 weeks 
 
            of permanent partial disability benefits based on the 21 
 
            percent functional impairment rating to the left hand given 
 
            by Dr. Steyers.
 
            
 
                 The parties state that the issue is whether additional 
 
            disability benefits are owed based on the 1 percent 
 
            impairment to the body as a whole given by G. Patrick 
 
            Kealey, M.D..
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. App. P. 14(f).
 
            
 
                 An injury to a scheduled member may, because of after 
 
            effects or compensatory change, result in permanent 
 
            impairment of the body as a whole.  Such impairment may in 
 
            turn be the basis for a rating of industrial disability.  It 
 
            is the anatomical situs of the permanent injury or 
 
            impairment which determines whether the schedules in section 
 
            85.34(2)(a) - (t) are applied.  Lauhoff Grain v. McIntosh, 
 
            395 N.W.2d 834 (Iowa 1986); Blacksmith v. All-American, 
 
            Inc., 290 N.W.2d 348 (Iowa 1980); Dailey v. Pooley Lumber 
 
            Co., 233 Iowa 758, 10 N.W.2d 569 (1943).  Soukup v. Shores 
 
            Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 Permanent partial disability payments are governed by 
 
            Iowa Code section 85.34 which states, in relevant part:
 
            
 
                    Compensation for permanent disabilities and 
 
                 during a healing period for permanent partial 
 
                 disabilities shall be payable to an employee as 
 
                 provided in this section.
 
            
 
                    ....
 
            
 
                    In all cases of permanent partial disability 
 
                 other than those hereinabove described or referred 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 to in paragraphs "a" through "t" hereof, the 
 
                 compensation shall be paid during the number of 
 
                 weeks in relation to five hundred weeks as the 
 
                 disability bears to the body of the injured 
 
                 employee as a whole.
 
            
 
                 Other than disfigurement of the face or head under 
 
            section 85.34(t), there is no provisioin under the Code for 
 
            scarring caused by work injuries.  As a result, claimant has 
 
            sustained an industrial disability due to the scarring over 
 
            several portions of his body.  See Gann v. Griffin Pipe 
 
            Products, Inc., II Iowa indus. Comm'r Rep. 160 (claimant, 
 
            who sustained first, second and third degree burns over 55 
 
            percent of his body was awarded 5 percent industrial 
 
            disability).
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 At the time of the hearing, claimant was 51 years old.  
 
            He has a very limited education, although throughout his 
 
            working life, he has been able to secure suitable employment 
 
            at decent wages.
 
            
 
                 Claimant was earning more than $10 while working at 
 
            Robinson.  Currently, he earns more than $14 per hour.  He 
 
            is able to satisfactorily perform his duties as a kiln 
 
            burner and helper.  Claimant explained that he wears cotton 
 
            gloves throughout most of the day and evening hours.  
 
            Although this practice is somewhat embarrassing to claimant, 
 
            no serious problems or impairment to his life or activities 
 
            has resulted from the skin problems.
 
            
 
                 The troublesome aspect of the case is the employer's 
 
            refusal to accommodate claimant's restrictions once he was 
 
            initially released to return to work.  As the agency has 
 
            stated many times, 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).
 
            
 
                 As a result, claimant has sustained a 5 percent 
 
            industrial disability, in addition to the impairment to his 
 
            left hand.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendant shall pay unto claimant twenty-five (25) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of two hundred three and 86/100 dollars ($203.86) per week, 
 
            commencing on September 2, 1988.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of January, 1993.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Robert S Kinsey III
 
            Attorney at Law
 
            214 N Adams
 
            P O Box 679
 
            Mason City IA 50401-0679
 
            
 
            Mr Gene Yagla
 
            Attorney at Law
 
            500 First National Bldg
 
            607 Sycamore St
 
            P O Box 960
 
            Waterloo IA 50704
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1803
 
                      Filed January 27, 1993
 
                      Patricia J. Lantz
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JOHN D. BAILEY,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 839577
 
            ROBINSON CONSTRUCTION CO.,    :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE FARM FIRE & CASUALTY    :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant sustained electrical shock at work and received 
 
            burn injuries which resulted in scarring on both palms and 
 
            both legs.
 
            After recovery, claimant attempted to return to work with 
 
            employer, but employer would not give claimant a job.
 
            Claimant secured suitable employment at a higher hourly wage 
 
            with a different employer.
 
            Claimant awarded 5% industrial disability.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOYCE HELLER,
 
         
 
              Claimant,                             File No. 839618
 
         
 
         vs.                                     A R B I T R A T I O N
 
         
 
         JIMMY DEAN MEAT COMPANY, INC.,             D E C I S I O N
 
                                                      
 
              Employer,                                F I L E D
 
         
 
         and                                          JAN 25 1989
 
         
 
         AETNA CASUALTY & SURETY COMPANY,        INDUSTRIAL SERVICES
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Joyce Heller 
 
         against Jimmy Dean Meat Company, Inc., her former employer and 
 
         Aetna Casualty & Surety Company, the employer's insurance 
 
         carrier. The case was heard and fully submitted at Des Moines, 
 
         Iowa on April 28, 1988.  The record in this proceeding consists 
 
         of testimony from Joyce Heller and Calvin Held.  The record also 
 
         contains claimant's exhibits 1 and 2 and defendants' exhibits A 
 
         through T.  The majority of defendants' exhibits duplicate those 
 
         offered by claimant.
 
         
 
                                      ISSUES
 
         
 
              Claimant seeks compensation for permanent partial disability 
 
         based upon the alleged injury of November, 1986.  It was 
 
         stipulated at the time of hearing that, in the event of an award, 
 
         the claimant's entitlement to compensation for temporary total 
 
         disability or healing period runs until April 19, 1987, that it 
 
         has been paid voluntarily and that no further claim for temporary 
 
         total disability or healing period is made.  It was stipulated 
 
         that any permanency awarded would be payable commencing April 20, 
 
         1987.  It was further stipulated that, in the event of an award, 
 
         the rate of compensation is $179.60 per week.  Claimant alleges 
 
         that she has developed thoracic outlet syndrome and carpal tunnel 
 
         syndrome as a result of job-related injuries at Jimmy Dean Meat 
 
         Company, Inc.  Employer contends that, even if claimant does have 
 
         such conditions, they were not caused by claimant's work at Jimmy 
 
         Dean and that they are therefore not injuries which arose out of 
 
         and in the course of employment.
 
         
 
                               SUMMARY OF EVIDENCE
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              The following is a summary of evidence presented in this 
 
         case.  Of all the evidence received at the hearing, only that 
 
         considered most pertinent to this decision is discussed. 
 
         Conclusions about what the evidence showed are inevitable with 
 
         any summarization.  The conclusions in the following summary 
 
         should be considered to be preliminary findings of fact.
 
         
 
              Joyce Heller is a 36-year-old divorced woman who lives at 
 
         Lacona, Iowa.  She graduated from high school in 1969, worked 
 
         briefly in a factory building camping trailers and motorhomes and 
 
         then married and left the position.  She worked briefly as a 
 
         nurse's aide then moved to Wisconsin.  In Wisconsin, claimant 
 
         worked as a bartender and also performed babysitting.  In 1985, 
 
         she returned to Iowa where she worked as a waitress at the Des 
 
         Moines Club for approximately two months.  She then worked at R & 
 
         R Ranch selling campground memberships.  In September, 1986, she 
 
         commenced work with Oakview Construction Company which was 
 
         building an addition onto the Jimmy Dean plant.  Claimant 
 
         testified that the bulk of her activities while in the 
 
         construction job involved going for supplies and materials, 
 
         operating the bobcat endloader and generally assisting as needed 
 
         or requested.  She denied performing heavy or repetitive work in 
 
         that position.  Claimant stated that she obtained her job with 
 
         Jimmy Dean through a favorable recommendation made by her 
 
         supervisor at Oakview Construction.
 
         
 
              Claimant denied having any significant injuries arising from 
 
         any of her employments that she had engaged in prior to her work 
 
         with.Jimmy Dean.
 
         
 
              Claimant was hired by Calvin Held, the Jimmy Dean office 
 
         manager, on November 11, 1986.  Her first day of work was 
 
         November 17, 1986, a Monday.
 
         
 
              Claimant testified that she was assigned to work on the 
 
         boning table where she used a wizard knife to remove excess meat 
 
         from the backbone and rib section of the hogs.  Claimant stated 
 
         that she was required to clean 110 pieces per hour.  Claimant 
 
         related that, on the second day, her hands would quit working and 
 
         would be frozen in a grip.  She related that she would experience 
 
         shooting pains up her arms and that her hands would go to sleep. 
 
         Claimant related that, on the morning of the third day, the 
 
         symptoms were gone.  She stated that,,by the end of the third 
 
         day, her hands and wrists were starting to cramp up again.  She 
 
         stated that, on the fourth morning, her hands were asleep when 
 
         she awoke and, thereafter, the symptoms progressively worsened 
 
         (exhibit 5, pages 20-25).  She related that her supervisor 
 
         observed that she was working slower and sent her to see the 
 
         plant nurse.  Claimant related that the nurse informed her that 
 
         the problem was claimant's lack of being accustomed to repetitive 
 
         work, and that it was normal.  She was sent back to the line to 
 
         continue working. Claimant stated that she subsequently returned 
 
         to the nurse and was then referred to the company physician, 
 
         Thomas Lower, D.O.  Dr. Lower's notes indicate that he saw 
 
         claimant on November 25, 1986, provided her with wrist splints, 
 
         scheduled a return office call for November 28, 1987 [sic] and 
 
         recommended that she remain off work until that time.  The notes 
 
         indicate that Dr. Lower saw claimant again on November 28, 1986 
 
         at which time her left wrist was still painful, but her right had 
 
         improved.  His notes indicate that she would be authorized to 
 
         return to work on December 1, 1986 if she were doing well.  Dr. 
 
         Lower's third note dated December 1, 1986 indicates that claimant 
 
         worked three hours that morning and that her hands were painful, 
 
         fingers numb, and she was unable to grip with her left hand.  The 
 
         notes indicate that Dr. Lower arranged an orthopaedic evaluation 
 
         and released claimant from working until that evaluation (exhibit 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         N).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant stated that when she attempted to return to work, 
 
         it increased the discomfort in her wrists and that she also 
 
         developed pain in her shoulders and neck.  Claimant stated that 
 
         the progression of pain into her shoulders and neck occurred over 
 
         the period of approximately one month.
 
         
 
              Claimant testified that, prior to November 17, 1986, she had 
 
         not experienced any problems with her hands, shoulder or neck. 
 
         Claimant's family physician, A. L. McCormick, D.O., who had seen 
 
         claimant as recently as November 11, 1986, had no record or 
 
         recollection of claimant ever having carpal tunnel syndrome, 
 
         thoracic outlet or cervical strain problems prior to November of 
 
         1986 (exhibit T, pages 14 and 15).
 
         
 
              Claimant described her current symptoms as follows:
 
         
 
              A.  My hands go to sleep, they cramp up, they get some 
 
              shooting pains.  I can't raise my arms up over my head.  
 
              It's very difficult, and it's very painful.  I can't put my 
 
              arms behind my back.  I have very, very minimal grip 
 
              strength in my hands.
 
         
 
              Q.  Now, you talked about shooting pains.  Can you tell me 
 
              where they shoot from and to?
 
         
 
              A.  In my hands, and then up my arms and my shoulders.
 
              
 
              Q.  So it shoots from your wrist up into your shoulder?
 
              
 
              A.  Yeah.
 
              
 
              Q.  Do you have this pain all the time, or does this pain 
 
              come and then you have periods without any pain, or do you 
 
              have times that the pain gets worse than others?
 
         
 
              A.  Yes.
 
         
 
              Q.  Okay.  I think I had about three questions stuck in 
 
              there.
 
         
 
              A.  Yes to the latter question.  It gets worse.
 
              
 
              Q.  Is there any time that you do not have pain at all?
 
              
 
              A.  Yes.  If I don't do anything, I don't have any pain.
 
              
 
              Q.  Okay.
 
              
 
              A.  As long as I keep my arms about waist high and in front 
 
              of me, I don't have discomfort.
 
         
 
         (Exhibit S, pages 28 and 29)
 
         
 
              Claimant stated that, during the first week, she worked 
 
         approximately 60 hours.  She agreed with a report of 61 1/2 hours 
 
         over a period of six work days as shown on the first report of 
 
         injury.  Calvin Held related that, from payroll records, claimant 
 
         had worked approximately 55 hours, including 10 hours on the 
 
         first day that she worked.  Held agreed that the line runs at the 
 
         rate of 110 per hour and that the plant was scheduled to operate 
 
         9 1/2 hours of work per day.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant first saw Scott Neff, D.O.,an orthopaedic surgeon, 
 
         on December 8, 1986.  His report indicates that she developed 
 
         acute tenosynovitis in her forearms and hands and that her left 
 
         was more symptomatic than her dominant right side.  He found her 
 
         to have an abnormal Phalen's sign and an equivocal Roos sign for 
 
         thoracic outlet syndrome.  The final paragraph of the report 
 
         states:
 
         
 
              Certainly this is a difficult problem, and I do not think 
 
              that it probably is an extremely wise idea to bring someone 
 
              onto a new job and work them 60 hours the first week, in 
 
              light of the current industry studies that talk about 
 
              breaking onto a new job which requires repetitive activity, 
 
              just as one trains for RAGBRAI.
 
         
 
         (Exhibit B)
 
         
 
              Claimant underwent EMG studies which were interpreted as 
 
         being abnormal.  Dr. Neff stated:
 
         
 
              They are consistent with early carpal tunnel syndrome, and I 
 
              believe that this may be related to synovial edema and 
 
              swelling secondary to the way that her work was started. 
 
              ...The first week that she was there, she was worked 56 
 
              hours doing repetitive hand and wrist activity that she was 
 
              not accustomed, and that was probably not the most sensible 
 
              way to start her on a new job.
 
         
 
         (Exhibit C)
 
         
 
              He concluded by stating:
 
         
 
              This is a difficult situation, and there may have been a 
 
              predisposition to carpal tunnel from her previous heavy 
 
              activity which was worsened by the heavy work schedule at a 
 
              new job.
 
         
 
         (Exhibit C)
 
         
 
              On December 24, 1986, Dr. Neff again addressed the issue of 
 
         the cause of claimant's symptoms.  He indicated that it is not 
 
         unreasonable to expect muscle soreness or tendonitis to occur 
 
         relatively quickly following initiation of unaccustomed physical 
 
         activity.  He stated, however, that carpal tunnel syndrome 
 
         requires repetitive long-term activity and is not associated with 
 
         a one- or two-day work activity, in the absence of frank trauma. 
 
         He went on to state:
 
         
 
              My opinion would be, consequently, that this patient's 
 
              carpal tunnel syndrome was related to repetitive hand and 
 
              wrist activity, exposure to vibration, and the use that 
 
              occurs in her arm as a result of those activities.  If those 
 
              activities occurred for a period of time in the construction 
 
              site, then they would be related to the construction work.  
 
              If this patient had worked at a new job, 56 hours per week, 
 
              doing repetitive hand and wrist activity for a period of 
 
              just a few hours or up to a few weeks, then that would be an 
 
              aggravation of a previously underlying condition, or simply 
 
              a soft tissue increase in symptoms if it were a tendonitis 
 
              type situation. If this patient were to work doing 
 
              repetitive hand and wrist activity for a period of several 
 
              weeks, then, documented carpal tunnel syndrome would be the 
 
              result of that activity.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              In essence, if this patient works for Jimmy Dean Meat 
 
              Company for two days, and then had carpal tunnel symptoms, 
 
              the tendonitis or soreness would be related to the new job 
 
              change, but the underlying carpal tunnel syndrome would be 
 
              related to previous activity.
 
         
 
         (Exhibit D)
 
         
 
              In a separate report, Dr. Neff indicated as follows:
 
         
 
              I have reviewed the records and other studies that are 
 
              available on Ms. Joyce Heller and feel that thoracic outlet 
 
              syndrome is not caused by 56 hours of work.
 
         
 
              This patient has a history of doing heavy construction work 
 
              for prolonged periods of time, and, in my opinion, that 
 
              heavy repetative [sic] lifting in construction work would be 
 
              far more likely to cause a related thoracic outlet syndrome, 
 
              and [sic] would be 56 hours of work in the Jimmy Dean Plant.
 
         
 
              Consequently, it is my opinion that this patient does indeed 
 
              have thoracic outlet syndrome, but that this syndrome is not 
 
              related to the brief work exposure in the Jimmy Dean Plant.
 
         
 
         (Exhibit F)
 
         
 
              Dr. Neff subsequently reported that claimant has no 
 
         permanent impairment from her carpal tunnel syndrome and that it 
 
         was his opinion that 56 hours of work with Jimmy Dean would not 
 
         cause her problems in view of her construction job work history 
 
         (exhibit G).
 
         
 
              Dr. Neff felt that claimant exhibited signs of thoracic 
 
         outlet syndrome, as well as early carpal tunnel syndrome, and 
 
         referred her to Alexander Matthews, M.D., for a surgical 
 
         evaluation (exhibit E).
 
         
 
              Claimant was seen by Dr. Matthews.  A Ct scan and myelogram 
 
         of her cervical spine were performed and were interpreted as 
 
         showing no abnormalities.  Dr. Matthews concluded that claimant 
 
         has bilateral thoracic outlet syndrome and that surgical 
 
         decompression of the thoracic outlets should be considered 
 
         (exhibit J).
 
         
 
              In February, 1987, claimant was evaluated at the University 
 
         of Iowa Hospitals and Clinics by John D. Corson, M.D., Chief of 
 
         Vascular Surgery.  Dr. Corson stated:
 
         
 
              I think in essense [sic] reviewing her whole story and the 
 
              relevant tests that are available to me, it would appear 
 
              that she probably does have a.diagnosis of bilateral 
 
              thoracic outlet syndrome with the left being worse than the 
 
              right and also a degree of carpal tunnel syndrome on the 
 
              left side.  The problem seems to have evolved very 
 
              temporarily related to this change in her physical activity 
 
              and it is interesting that with the cessation of this 
 
              activity that the symptomatology has not improved.....
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              I think she is in a difficult situation at the present time 
 
              and is certainly disabled by the symptoms that she has.  I 
 
              think the symptoms are genuine although I was interested 
 
              that with the apparent weakness of grip she has at the 
 
              present time, she was able to drive from her home to the 
 
              University Hospitals and Clinics which is quite a 
 
              considerable distance and one might have expected that she 
 
              would have considerable difficulty driving with the apparent 
 
              degree of disability that she has with her upper 
 
              extremities.  However, the thoracic outlet syndrome is 
 
              indeed a difficult area and one has to take into account the 
 
              whole constellation of signs and symptoms and the history to 
 
              arrive at the diagnosis; no specific test will clarify the 
 
              diagnosis.  I would have thought that the thing to do with 
 
              her initially would be to treat her with physical therapy 
 
              for shoulder and arm girdle strengthening and see if she has 
 
              any benefit at all from this.  If this failed to improve her 
 
              or indeed exacerbate her symptomatology, I think the next 
 
              option would be to treat her for thoracic outlet syndrome 
 
              surgically on the more involved side and see if this indeed 
 
              improves her at all, bearing in mind that not everybody who 
 
              has this surgery necessarily gets improvement following it.  
 
              She definitely is disabled with what she has at the present 
 
              time and I certainly feel that given the information that I 
 
              had, this was exacerbated by her change in job.  I am not 
 
              sure long term what the prognosis will be with her, and this 
 
              will depend on whether she requires surgery and how she does 
 
              following surgery on the more involved side.
 
         
 
         (Exhibit L)
 
         
 
              On March 18, 1987, claimant was evaluated by Steven R.
 
         Adelman, D.O., a neurologist.  Dr. Adelman expressed his 
 
         assessment of the case as follows:
 
         
 
              IMPRESSION:  Mrs. Heller presents as a 35-year-old woman who 
 
              has developed incapacitating bilateral arm and hand pain 
 
              following one week of high volume repetitive work at Jimmy 
 
              Dean, in November of 1986.  Currently her neurologic 
 
              examination is normal.  It is my feelings that most of her 
 
              symptoms are musculoskelatal [sic] in nature and related to 
 
              cervical and thoracic strain.
 
         
 
              2.  I believe that she probably does have some degree of 
 
              carpal tunnel syndrome, bilaterally, but this would not 
 
              explain her entire symptoms.
 
         
 
              3.  As far as the issue of thoracic outlet syndrome is 
 
              concerned, I happen to belong to the school that does not 
 
              believe that first rib resection is effective for symptoms 
 
              described as thoracic outlet.  My problem is that there is 
 
              no definitive test for thoracic outlet syndrome and many 
 
              people without symptoms will have so-called positive tests 
 
              for thoracic outlet syndrome.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              PLANS:  I've explained my findings to Miss Heller.  In view 
 
              of the fact that she did not develop symptoms until she 
 
              worked at Jimmy Dean, I have no reason to doubt her story, I 
 
              believe that they in fact, probably were work related.  I 
 
              would believe that her Carpal tunnel syndrome probably did 
 
              pre-exhist [sic] prior to her employment at Jimmy Dean.  I 
 
              have recommended a non-steroidal anti-inflammatory and have 
 
              given her some samples for Clinoril to take 200 mgs. b.i.d. 
 
              I've also recommended the use of warm moist heat and perhaps 
 
              a course of physical therapy in one to two weeks should she 
 
              not get any relief with the non-steroidals.  I would be 
 
              extremely hesitant to recommend first rib rescection [sic] 
 
              for thoracic outlet syndrome especially [sic] for symptoms 
 
              that are bilateral in nature.  It is difficult to give a 
 
              prognosis in this condition but one would expect that her 
 
              symptoms should improve over a period of time.  Again, I am 
 
              unable to give a definitive time frame, however.
 
         
 
         (Exhibit K)
 
         
 
              On March 11, 1988, claimant was evaluated by Jerome G. 
 
         Bashara, M.D.  Dr. Bashara concluded that claimant had bilateral 
 
         carpal tunnel syndrome related to repetitive overwork activities 
 
         while employed at the Jimmy Dean Meat Company in November of 1986 
 
         and that she had a five percent permanent partial physical 
 
         impairment of her right upper.extremity and a similar five 
 
         percent permanent partial impairment of her left upper extremity 
 
         related to the carpal tunnel syndrome.  Dr. Bashara did not 
 
         address thoracic outlet syndrome (exhibit A).
 
         
 
              Claimant was evaluated by,Gerald J. Cooper, D.O.  Dr. Cooper 
 
         agreed with the diagnosis of thoracic outlet syndrome, but did 
 
         not address the cause of the problem or the degree of disability 
 
         (Exhibit 15).
 
         
 
              Claimant's employment with Jimmy Dean Meat Company, Inc., 
 
         was terminated while she was still in her probationary period.  
 
         Calvin Held testified that the termination was a result of a 
 
         reduction in the workforce and that it was not related to her 
 
         physical problems.  Claimant testified that Held had told her the 
 
         termination was due to her physical inability to perform the job.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received an injury which arose out of and in 
 
         the course of her employment.  McDowell v. Town of Clarksville, 
 
         241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 
 
         261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it."  Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979); McClure v. Union et al. Counties, 188 
 
         N.W.2d 283 (Iowa 1971); Musselman v. Central Telephone Co., 261 
 
         Iowa 352, 154 N.W.2d 128 (1967).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The "arising out of" requirement is satisfied by showing a 
 
         causal relationship between the employment and the injury.  
 
         Sheerin v. Holin Co., 380 N.W.2d 415, 417 (Iowa 1986); Musselman 
 
         v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128, 130 
 
         (1967); Reddick v. Grand Union Tea Co., 230 Iowa 108, 296 N.W. 800 
 
         (1941).  Aggravation of a preexisting condition is one form of 
 
         compensable injury.
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756 (1956).  
 
         If the claimant had a preexisting condition or disability that is 
 
         aggravated, accelerated, worsened or lighted up so that it 
 
         results in disability, claimant is entitled to recover.  Nicks v 
 
         Davenport Produce Co., 254 Iowa 130, 115 N.w.2d 812 (1962).
 
         
 
              Injuries which arise from cumulative or repetitive trauma 
 
         are compensable, the same as those which arise from a single 
 
         traumatic incident.  McKeever Custom Cabinets v. Smith, 379 
 
         N.W.2d 368 (Iowa 1985); Black v. Creston Auto Company, 225 Iowa 
 
         671, 281 N.W. 189 (1938).  When dealing with injuries that result 
 
         from repetitive or cumulative traumas or exposures, the date of 
 
         injury is the date when disablement occurs and the employer 
 
         responsible for the disability is the one who employed the worker 
 
         at the time of disablement.  McKeever Custom Cabinets v. Smith, 
 
         379 N.W.2d 368 (Iowa 1985); Doerfer Division of CCA v. Nicol, 359 
 
         N.W.2d 428 (Iowa 1984).
 
         
 
              Joyce Heller appeared and testified at the hearing where her 
 
         appearance and demeanor were observed.  Calvin Held, the office 
 
         manager for the employer, corroborated the claimant's testimony 
 
         regarding the requirements of her employment.  Her testimony 
 
         regarding lack of prior complaints or symptoms in her hands, arms 
 
         or shoulders is corroborated by the evidence from Dr. McCormick. 
 
         There is no direct evidence in the record which in any manner 
 
         conflicts with the claimant's testimony regarding the onset of 
 
         her symptoms.  Accordingly, her testimony in that regard is 
 
         accepted as being accurate.
 
         
 
              The greater weight of the evidence from the medical 
 
         practitioners in this case establishes that claimant is afflicted 
 
         with bilateral carpal tunnel syndrome and bilateral thoracic 
 
         outlet syndrome, both conditions being worse on the left than on 
 
         her dominant right side.  Dr. Adelman, a neurologist, and Dr. 
 
         Corson, the chief of vascular surgery at the University of Iowa 
 
         Hospitals and Clinics, both attribute claimant's thoracic outlet 
 
         syndrome to her employment at Jimmy Dean, based primarily upon 
 
         the onset of symptoms (exhibits 12, 14, K and L).  Their opinions 
 
         in that regard are accepted as being correct.  Dr. Bashara 
 
         relates claimant's carpal tunnel syndrome to her employment with 
 
         Jimmy Dean (exhibits 18 and A).  Dr. Neff initially attributed 
 
         claimant's symptoms to the manner in which she was placed to work 
 
         on the boning line (exhibits 3, 5, B and C).  Later, however, he 
 
         clearly stated that neither thoracic outlet syndrome nor carpal 
 
         tunnel syndrome would be caused by 56 hours of work activity 
 
         (exhibits 7, 13, 16, D, F and G).  Dr. Neff did not, however, 
 
         refute the possibility that the employment at Jimmy Dean 
 
         aggravated a previously latent or dormant condition.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that her injury is causally related to the 
 
         disability on which she now bases her claim.  Bodish v. Fischer, 
 
         Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. L.O. 
 
         Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
         insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish,.257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              Upon considering all the evidence in the case, it is 
 
         determined that Joyce Heller likely had some preexisting 
 
         propensity to develop carpal tunnel syndrome and thoracic outlet 
 
         syndrome.  It is certainly possible that she may have experienced 
 
         some minimal or mild symptoms of either or both of those 
 
         conditions prior to the time she commenced employment at Jimmy 
 
         Dean Meat Company.  The record contains no evidence of any prior 
 
         repetitive activity on her part, either at work or in her 
 
         nonemployment life.  All the evidence in the record regarding her 
 
         three-month term of employment with Oakview Construction is to 
 
         the effect that she did not engage in heavy or repetitive 
 
         activity. The lack of heavy or repetitive activity while claimant 
 
         was employed by the construction company further detracts from 
 
         Dr. Neff's opinion which purports to relate claimant's thoracic 
 
         outlet syndrome and carpal tunnel syndrome to her employment with 
 
         Oakview Construction.
 
         
 
              Interestingly, Dr. Neff in his report of December 24, 1986 
 
         (exhibit D) indicates that carpal tunnel syndrome can result from 
 
         "frank trauma."  He does not elaborate upon what the term means, 
 
         but it would seem illogical to state that carpal tunnel syndrome 
 
         can be caused by long-term, repetitive activity or by a single 
 
         incident of acute trauma, but that it cannot be caused by 
 
         short-term, severely stressful repetitive or cumulative trauma.  
 
         It is therefore determined, based upon the evidence from Drs. 
 
         Adelman, Corson, Bashara and the initial reports from Dr. Neff 
 
         that Joyce Heller's employment activities with Jimmy Dean Meat 
 
         Company, Inc., were a substantial factor in producing the carpal 
 
         tunnel syndrome and thoracic outlet syndrome with which she is 
 
         currently afflicted.  Claimant may have been predisposed to 
 
         develop those conditions and development of the conditions may 
 
         have been ongoing prior to the time that she commenced employment 
 
         with Jimmy Dean, but the evidence clearly establishes that the 
 
         conditions were not symptomatic and had not produced any 
 
         disability prior to claimant's employment with Jimmy Dean.  If 
 
         the injury is an aggravation of a preexisting condition, the 
 
         employer is responsible for the consequences of that aggravation.  
 
         It is therefore determined that Joyce Heller's bilateral carpal 
 
         tunnel.syndrome and bilateral thoracic outlet syndrome are 
 
         injuries which arose out of and in the course of her employment 
 
         with Jimmy Dean Meat Company, Inc.
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The last day that Joyce Heller worked for Jimmy Dean Meat 
 
         Company before being taken off work by Dr. Lower was November 24, 
 
         1986.  In accordance with McKeever Custom Cabinets v. Smith, 379 
 
         N.W.2d 368 (Iowa 1985), November 24, 1986 is determined to be the 
 
         date of injury.
 
         
 
              The parties stipulated to the extent of healing period in 
 
         the event liability were found.  Accordingly, the remaining issue 
 
         is determination of claimant's entitlement to compensation for 
 
         permanent partial disability.  Claimant's condition has persisted 
 
         long enough to be considered permanent.  Wallace v. Brotherhood, 
 
         230 Iowa 1127, 300 N.W. 322 (1941).
 
         
 
              Bilateral carpal tunnel syndrome is a scheduled member 
 
         injury compensable under the provisions of Code section 
 
         85.34(2)(s). Simbro v. DeLong's Sportswear, 332 N.W.2d 886 (Iowa 
 
         1983). Thoracic outlet syndrome manifests itself primarily in the 
 
         hands and arms, but the origin of the condition is the point 
 
         where the nerve bundle is compressed by the person's first rib, a 
 
         point which is anatomically part of the trunk of the body, rather 
 
         than the arm.  As the evidence shows, the surgical treatment for 
 
         the condition involves surgery in the trunk of the body where the 
 
         first rib is resected.  Accordingly, thoracic outlet syndrome is 
 
         an injury to the body as a whole compensable under the provisions 
 
         of Code section 85.34(2).  The physical abnormality and the point 
 
         from which the disability originates is in the trunk of the body 
 
         rather than in claimant's arms or hands.  Lauhoff Grain Company 
 
         v. McIntosh, 395 N.W.2d 834 (Iowa 1986); Alm v. Morris Barick 
 
         Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 (1949).
 
         
 
              As claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of 'earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Industrial disability or loss of earning capacity is a 
 
         concept that is quite similar to impairment of earning capacity, 
 
         an element of damage in a tort case.  Impairment of physical 
 
         capacity creates an inference of lessened earning capacity.  The 
 
         basic element to be determined, however, is the reduction in 
 
         value of the general earning capacity of the person, rather than 
 
         the loss of wages or earnings in a specific occupation.  
 
         Post-injury earnings create a presumption of earning capacity.  
 
         The earnings are not synonymous with earning capacity and the 
 
         presumption may be rebutted by evidence showing the earnings to 
 
         be an unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
         (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
         516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
         34th Biennial Report, 218 (1979): 2 Larson Workmen's Compensation 
 
         Law, sections 57.21 and 57.31.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960).
 
         
 
              An employer is not required to pay compensation for a 
 
         preexisting disability.  The burden of proof with regard to 
 
         establishing the existence and extent of any claimed preexisting 
 
         permanent disability rests on the employer.  Varied Enterprises, 
 
         Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984).  If no apportionment 
 
         can be made, the employer is responsible for the entire 
 
         disability.  Becker v. D & E Distributing Co., 247 N.W.2d 727, 
 
         731 (Iowa 1976); Wonder Life Company v. Liddy, 207 N.W.2d 27 
 
         (Iowa 1973); Atterberg, v. Shelter Globe Corp., file number 
 
         814741 (Arb. Decn., April 19, 1988).  The only evidence in this 
 
         case that Joyce Heller may have had some preexisting permanent 
 
         disability comes from the medical opinions which indicate that 
 
         her conditions were not likely to have arisen from 56 hours of 
 
         work activity.  While those opinions may establish that the 
 
         injury was in.fact an aggravation of a preexisting condition, 
 
         there is no factual basis in the record of this case for 
 
         apportionment of disability. Accordingly, defendants in this case 
 
         are responsible for the entire disability determined to exist.
 
         
 
              Joyce Heller is approximately 36 years of age.  She is 
 
         currently involved, apparently successfully, in a retraining 
 
         program.  In view of claimant's prior earning history, it is 
 
         likely that her earnings after she completes her retraining will 
 
         exceed even what she had earned during her brief period of 
 
         employment with Jimmy Dean.  Industrial disability must be 
 
         evaluated, however, as the person is following the injury, not as 
 
         they become after devoting several years of their life and 
 
         expending several thousand dollars to regain as much residual 
 
         employability as is possible.  The person's aptitude and ability 
 
         for retraining is, however, an important consideration.  Stewart 
 
         v. Crouse Cartage Company, file number 738644, (Appeal Decision, 
 
         February 20, 1987).
 
         
 
              The only impairment ratings in the case come from Dr. 
 
         Bashara, that being five percent of each upper extremity. 
 
         According to claimant's testimony, she is able to function 
 
         adequately if she can work in a position where her hands are at 
 
         approximately waist level.  She voiced no particular complaints 
 
         regarding the activities she performs as a student.  She 
 
         indicated that she could function as a bartender, except for 
 
         activities that would involve heavy lifting.  Presumably these 
 
         would include handling cases of beverages and kegs of beer.  
 
         Nevertheless, claimant has lost the ability to perform a.number 
 
         of activities that were previously available to her.  When all 
 
         the material factors of industrial disability are considered, it 
 
         is determined that Joyce Heller sustained a 25% permanent partial 
 
         disability as a result of the injuries she sustained on November 
 
         24, 1986.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                 FINDINGS OF FACT
 
         
 
              1.  On November 24, 1986, Joyce Heller was a resident of the 
 
         state of Iowa employed by Jimmy Dean Meat Company in the state of 
 
         Iowa.
 
         
 
              2.  Joyce Heller had been employed and working for Jimmy 
 
         Dean Meat Company since November 17, 1986 as a trimmer on a 
 
         boning line.
 
         
 
              3.  Prior to November 17, 1986, Joyce Heller had not 
 
         experienced any significant pains, numbness or other symptoms in 
 
         her hands, arms or shoulders that were associated with carpal 
 
         tunnel syndrome or thoracic outlet syndrome.
 
         
 
              4.  Joyce Heller had been employed from September through 
 
         November of 1986 by Oakview Construction Company, but the work 
 
         she did was neither repetitive nor heavy in nature.
 
         
 
              5.  Joyce Heller developed bilateral carpal tunnel syndrome 
 
         and thoracic outlet syndrome as a result of the.strenuous, 
 
         repetitive work that she performed for Jimmy Dean Meat Company.
 
         
 
              6.  The symptoms which are disabling to Joyce Heller were 
 
         first manifested during the second day of her work with Jimmy 
 
         Dean Meat Company and thereafter worsened.
 
         
 
              7.  Joyce Heller is afflicted with bilateral carpal tunnel 
 
         syndrome and thoracic outlet syndrome which is worse on the left 
 
         side than on the right.
 
         
 
              8.  The injuries that Joyce Heller sustained probably 
 
         occurred due to a preexisting predisposition to develop carpal 
 
         tunnel syndrome and thoracic outlet syndrome, but neither 
 
         condition, even if it were developing prior to claimant's work 
 
         with Jimmy Dean Meat Company, was symptomatic until Heller was 
 
         exposed to the repetitive stresses of work on the Jimmy Dean 
 
         boning line.
 
         
 
              9.  Joyce Heller's work on the Jimmy  Dean boning line was a 
 
         substantial factor in producing the disability with which she is 
 
         currently afflicted.
 
         
 
              10.  Claimant's description of her symptoms, complaints and 
 
         limitations is accurate.
 
         
 
              11.  Claimant is of at least average intelligence and is 
 
         well motivated to be gainfully employed.
 
         
 
              12.  Carpal tunnel syndrome is a scheduled member 
 
         disability, but thoracic outlet syndrome is a disability of the 
 
         body as a whole since its.origin is in the trunk of the body.
 
         
 
              13.  Joyce Heller sustained a 25% loss of her earning 
 
         capacity as a result of the injuries she sustained in her 
 
         employment with Jimmy Dean Meat Company, Inc.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Joyce Heller's carpal tunnel syndrome and thoracic 
 
         outlet syndrome are injuries which arose out of and in the course 
 
         of her employment with Jimmy Dean Meat Company on November 24, 
 
         1986.
 
         
 
              3.  Joyce Heller has a 25% permanent partial disability, in 
 
         industrial terms, which entitles her to receive 125 weeks of 
 
         compensation for permanent partial disability under the 
 
         provisions of Code section 85.34(2)(u).
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant one 
 
         hundred twenty-five (125) weeks of compensation for permanent 
 
         partial disability at the stipulated rate of one hundred 
 
         seventy-nine and 60/100 dollars ($179.60) per week payable 
 
         commencing on April 20, 1987 as stipulated by the parties.
 
         
 
              IT IS FURTHER ORDERED that defendants pay all past due 
 
         amounts in a lump sum together with interest pursuant to Iowa 
 
         Code section 85.30.
 
         
 
              IT IS FURTHER ORDERED that the costs of this proceeding are 
 
         assessed against defendants pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file Claim Activity 
 
         Reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1
 
         
 
              Signed and filed this 25th day of January, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert W. Pratt
 
         Attorney at Law
 
         1913 Ingersoll Avenue
 
         Des Moines, Iowa  50309
 
         
 
         Ms. Lorraine J. May
 
         Attorney at Law
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         404 Equitable Building
 
         Des Moines, Iowa  50309
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1108.50, 1402.30, 1402.40
 
                                            1403.30, 1803, 1806, 2206
 
                                            2209
 
                                            Filed January 25, 1989
 
                                            MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOYCE HELLER,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                   File No. 839618
 
         JIMMY DEAN MEAT COMPANY, INC.,
 
                                                A R B I T R A T I 0 N
 
              Employer,
 
                                                   D E C I S I 0 N
 
         and
 
         
 
         AETNA CASUALTY & SURETY COMPANY:
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1108.50, 1402.30, 1402.40, 1403.30, 1803, 1806, 2206, 2209
 
         
 
              Claimant developed symptoms which were later diagnosed as 
 
         carpal tunnel syndrome and thoracic outlet syndrome during her 
 
         first week of employment on the boning line where she worked 
 
         approximately 60 hours in her first six days of work.  There was 
 
         no evidence that claimant had symptoms prior to engaging in that 
 
         type of work.  It was held that claimant established injury 
 
         arising out of and in the course of employment despite the 
 
         relatively short term of employment.  It was determined that the 
 
         injury was possibly an aggravation of a preexisting condition or 
 
         a predisposition to develop the conditions, but that there was no 
 
         evidence that claimant had any disability from the conditions 
 
         prior to the injury which she established with the employer and 
 
         the employer was held responsible for all disability that was 
 
         found to exist.
 
         
 
              Claimant awarded 25% permanent partial disability for 
 
         bilateral carpal tunnel and thoracic outlet syndrome.  Her 
 
         earning history was such that it was expected she would actually 
 
         experience an increase in earning capacity if she were able to 
 
         successfully complete the retraining in which she was 
 
         successfully engaged at the time of hearing.  Without retraining, 
 
         25% permanent partial disability would have been minimal.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            HENRY GILBERTSON,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 839671
 
            PRINCE MANUFACTURING CO.,     :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA LIFE AND CASUALTY,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Henry Gilbertson, against his employer, Prince 
 
            Manufacturing Company, and its insurance carrier, Aetna Life 
 
            and Casualty, defendants.  The case was heard on March 30, 
 
            1990, at the Woodbury County Courthouse in Sioux City, Iowa.  
 
            The record consists of the testimony of claimant and the 
 
            testimony of Roger Mullenberg.  Additionally, the record 
 
            consists of exhibits 1-10A, 11A & 12A.  Administrative 
 
            notice was also taken of files 750437 and 761666.
 
            
 
                                      issues
 
            
 
                 The only issues to be determined are:  1) whether 
 
            claimant sustained an injury on October 6, 1986, which arose 
 
            out of and in the course of employment with employer; 2) 
 
            whether there is a causal relationship between the alleged 
 
            injury and the disability; 3) whether claimant is entitled 
 
            to temporary or permanent partial disability benefits; and, 
 
            4) whether claimant is entitled to mileage under section 
 
            85.27.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant is 42 years old.  He commenced his second term 
 
            of employment with defendant-employer in 1978.  Claimant 
 
            sustained an umbilical hernia while on the job.  The hernia 
 
            occurred in 1981 and claimant had the surgery on November 9, 
 
            1983.  He returned to work on January 29, 1984.  Claimant 
 
            again sustained an umbilical hernia on March 29, 1984.  He 
 
            had surgery on September 25, 1984 and was able to return to 
 
            work in December of 1984.  Subsequent to his return to work, 
 
            claimant again experienced problems in the same area.
 
            
 
                 Claimant sought treatment from the company physician, 
 
            R. L. Morgan, on October 7, 1986.  On the day prior, 
 
            claimant, while at work, had experienced severe pain at his 
 
            incisional site.  Dr. Morgan diagnosed claimant as:
 
            
 
                 Patient was examined in our office 10-7-86 with 
 
                 the information that he had a previo [sic] ventral 
 
                 hernia which was compensation [sic] through Prince 
 
                 Mfg.  Patient states he has had swelling, and pain 
 
                 in the upper portion of the abdomen and the scar 
 
                 area which he felt probably was an incisional 
 
                 hernia.  Examination revealed an abcess [sic] in a 
 
                 thick midline scar two inches below the xiphoid.  
 
                 This was a small abcess [sic] and an incision and 
 
                 drainage was done and patient was placed on an 
 
                 antibiotic.  Patient continued to have drainage 
 
                 and had an active sinus tract with marked amount 
 
                 of granulation tissue forming.  The granulation 
 
                 tissuee [sic] was treated with silver nitrate but 
 
                 never completely healed.  Patient was advised that 
 
                 this was probably a deep stitch abcess [sic] and 
 
                 he should probably return to the operating surgeon 
 
                 to see about stitch removal, since the patient 
 
                 states there is a nylon mesh screen in the wound.  
 
                 Patient states he plans to return to see Dr. 
 
                 Cunningham, the operating surgeon, on 12-1-86.
 
            
 
                 Claimant did return to the care of Cecil G. Cunningham, 
 
            D.O.  Dr. Cunningham had performed claimant's second 
 
            umbilical hernia surgery.
 
            
 
                 Dr. Cunningham performed a third hernia surgery.  On 
 
            December 12, 1986, he operated on claimant for a small 
 
            ventral hernia and for an old suture abscess with sinus 
 
            tract.  Following the third surgery, claimant again had an 
 
            incisional abscess.  He was treated post-operatively with 
 
            irrigations and silver nitrate.
 
            
 
                 Dr. Cunningham released claimant to return to work on 
 
            March 30, 1987, with a temporary 30 pound weight 
 
            restriction.  A work capacity assessment and a computerized 
 
            back function analysis were performed.  Claimant expressed 
 
            weakness in pushing and pulling due to complaints in the 
 
            abdominal wall.  The physical therapist, Karen King, P.T., 
 
            found no permanent impairment.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Claimant was evaluated by Dr. Cunningham for purposes 
 
            of providing an impairment rating.  The physician opined:
 
            
 
                 His total permanent partial disability I believe 
 
                 you could easily say would be 25%, but this 
 
                 however includes the obesity and mental attitude 
 
                 of the patient, along with the injury that he 
 
                 received.  As far as the injury is concerned, I 
 
                 think that his abdomen is well healed and as 
 
                 discussed here in the summary of test results on 
 
                 the abdomen some type of physiotherapy might help 
 
                 due to the stiffness caused by the surgical repair 
 
                 of the hernial site or sites.  The total permanent 
 
                 partial disability as far as the hernias are 
 
                 concerned should not exceed 7%.
 
            
 
                 Dr. Cunningham allocated 25 percent of the seven 
 
            percent impairment figure to the injury of October 6, 1986.  
 
            Later Dr. Cunningham determined it was impossible to assign 
 
            separate impairment ratings to each hernia, but he did note 
 
            that no rating had been provided for the first two hernia 
 
            surgeries.
 
            
 
                 Claimant was also evaluated by Michael L. Wolpert, M.D.  
 
            Dr. Wolpert opined in his report of November 21, 1988:
 
            
 
                 Assessment - I have advised Mr. Gilbertson that he 
 
                 probably is developing an incisional hernia in the 
 
                 superior aspect of the incision.  However, I don't 
 
                 feel that there is one present during the current 
 
                 examination.  As time progresses, he will 
 
                 eventually develop one, as the fascia does seem to 
 
                 be quite weakened in this area.  The area of 
 
                 weakness measures at least 3-4 cm. in diameter.
 
            
 
                 I have advised him not to cut back on any work at 
 
                 this time.  I foresee no current disability with 
 
                 this condition at this time.
 
            
 
                 Other pertinent history includes that the patient 
 
                 maintains there is a mesh which Dr. Cunningham 
 
                 placed in the area during the original hernia 
 
                 repair.  If this is the case, the recurrent hernia 
 
                 will be very difficult to repair.
 
            
 
                 Claimant was also treated by John J. Dougherty, M.D.  
 
            However, claimant was dissatisfied with his treatment.  
 
            After February 4, 1988, claimant never returned to Dr. 
 
            Dougherty.  With respect to an impairment rating, Dr. 
 
            Dougherty wrote:
 
            
 
                 Therefore at this point in time, I could not give 
 
                 you any opinion as to any permanent disability as 
 
                 my thoughts on the matter previously had been that 
 
                 I don't think he had sustained any significant 
 
                 disability.
 
            
 
                 Claimant was also scheduled for an examination with 
 
            Larry D. Foster, M.D., on September 30, 1988.  Claimant, 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            however, did not keep his scheduled appointment, nor did 
 
            claimant reschedule another examination with Dr. Foster.
 
            
 
                 Claimant has returned to full duties with 
 
            defendant-employer.  He testified he does not lift more than 
 
            40 pounds but he is required to push and pull.  
 
            Consequently, he experiences pain when he engages in these 
 
            activities.  Claimant has also expressed mental anguish 
 
            because of his fear of reinjury.
 
            
 
                                conclusions of law
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on October 6, 
 
            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 injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63 (1955).
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 
 
            128 (1967). 
 
            
 
                 The opinions of experts need not be couched in 
 
            definite, positive or unequivocal language.  Sondag v. 
 
            Ferris Hardward, 220 N.W.2d 903 (Iowa 1974).  An opinion of 
 
            an expert based upon an incomplete history is not binding 
 
            upon the commissioner, but must be weighed together with the 
 
            other disclosed facts and circumstances.  Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  The expert 
 
            medical evidence must be considered with all other evidence 
 
            introduced bearing on the causal connection between the 
 
            injury and the disability.  Burt, 247 Iowa 691, 73 N.W.2d 
 
            732 (1955).  In regard to medical testimony, the commis
 
            sioner is required to state the reasons on which testimony 
 
            is accepted or rejected.  Sondag, 220 N.W.2d 903 (1974).
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of October 6, 
 
            1986, is causally related to the disability on which he now 
 
            bases his claim.  Bodish, 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, 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 sur
 
            rounding circumstances.  Bodish, 257 Iowa 516, 133 N.W.2d 
 
            867.  See also Musselman, 261 Iowa 352, 154 N.W.2d 128 
 
            (1967).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 When an aggravation occurs in the performance of an 
 
            employer's work and a causal connection is established, 
 
            claimant may recover to the extent of the impairment.  
 
            Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 
 
            N.W.2d 591, 595 (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 v. Firestone Tire & 
 
            Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. 
 
            Workmen's Compensation sec. 555(17)a.
 
            
 
                 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, 253 Iowa 369, 112 N.W.2d 299 (1961); 
 
            Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960).
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 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 (1960), and cases cited.
 
            
 
                 If a claimant contends he has industrial disability he 
 
            has the burden of proving his injury results in an ailment 
 
            extending beyond the scheduled loss.  Kellogg v. Shute and 
 
            Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985);  Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 In the case at hand, claimant has established by a 
 
            preponderance of the evidence that he has sustained an 
 
            injury which arose out of and in the course of his 
 
            employment.  Claimant's description of the events leading up 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            to his third hernia surgery was credible.  On the next day, 
 
            he provided the same description to the company physician, 
 
            Dr. Morgan.  Dr. Cunningham, the surgeon, found a separate 
 
            hernia when he operated in December of 1986.  It is the 
 
            determination of the undersigned that claimant's condition 
 
            is causally related to claimant's work injury of October 6, 
 
            1986.
 
            
 
                 Claimant has not established he has any permanent 
 
            partial disability as a result of the injury of October 6, 
 
            1986.  Only Dr. Cunningham has assessed an impairment rating 
 
            for claimant.  No other physician has found any permanency.  
 
            Even Dr. Cunningham has been unclear in describing his 
 
            formula for his impairment rating.  Claimant is under no 
 
            restrictions.  He has returned to full duties at 
 
            defendant-employer's establishment.  He has missed no work 
 
            since April of 1987 because of his work injury on October 6, 
 
            1986.  Claimant has failed to carry his burden of proof.
 
            
 
                 Claimant is entitled to temporary total disability 
 
            benefits under section 85.33(1).  The section provides:
 
            
 
                 Except as provided in subsection 2 of this 
 
                 section, the employer shall pay to an employee for 
 
                 injury producing temporary total disability weekly 
 
                 compensation benefits, as provided in section 
 
                 85.32, until the employee has returned to work or 
 
                 is medically capable of returning to employment 
 
                 substantially similar to the employment in which 
 
                 the employee was engaged at the time of injury, 
 
                 whichever occurs first.
 
            
 
                 The parties have stipulated the relevant period is from 
 
            December 12, 1986 through February 23, 1987, a period of 
 
            14.571 weeks.
 
            
 
                 Claimant is also entitled to $59.04 in additional 
 
            mileage as set out in exhibit 4A.
 
            
 
                                       order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants are to pay temporary total disability 
 
            benefits for the period from December 12, 1986 to March 23, 
 
            1987, a period of fourteen point five-seven-one (14.571) 
 
            weeks at the stipulated rate of two hundred nineteen and 
 
            79/l00 dollars ($219.79) per week.  Said sum is to be paid 
 
            in a lump sum.
 
            
 
                 Defendants shall receive credit for all benefits paid 
 
            and not previously credited.
 
            
 
                 Interest shall be paid pursuant to section 85.30.
 
            
 
                 Costs of the action shall be assessed to defendants 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 Defendants shall pay additional medical mileage in the 
 
            sum of fifty-nine and 04/l00 dollars ($59.04).
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 Defendants shall file a claim activity report as 
 
            requested by this division pursuant to Division of 
 
            Industrial Services Rule 343-3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of September, 1990.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Paul W. Deck, Sr.
 
            Attorney at Law
 
            635 Frances Bldg
 
            Sioux City  IA  51101
 
            
 
            Mr. Thomas M. Plaza
 
            Attorney at Law
 
            701 Pierce St  STE 200
 
            P O Box 3086
 
            Sioux City  IA  51102
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1801
 
                                               September 14, 1990
 
                                               MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            HENRY GILBERTSON,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 839671
 
            PRINCE MANUFACTURING CO.,     :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA LIFE AND CASUALTY,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-1801
 
            Claimant was entitled to 14.571 weeks of temporary total 
 
            disability benefits for an umbilical hernia surgery.