BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LEONARD J. THILL,
 
          
 
               Claimant,
 
          
 
          VS.                               File No. 839757
 
          
 
          OAKLAND INDUSTRIES,               A R B I T R A T I 0 N
 
          
 
               Employer,                    D E C I S I 0 N
 
          
 
          and
 
          
 
          AUTO-OWNERS INSURANCE,
 
          
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
                                        
 
              This is a proceeding in arbitration brought by Leonard J. 
 
         Thill against his former employer, Oakland Industries, and its 
 
         insurance carrier, Auto-Owners Insurance.
 
         
 
              The case was heard and fully submitted at Waterloo, Iowa on 
 
         February 13, 1989.  The record in this proceeding consists of 
 
         testimony from Leonard J. Thill, John Petersen, and Harold Sands.  
 
         The record also contains claimant's exhibits 1 through 55 an 
 
         defendants' exhibits H and I.
 
                                        
 
                                      ISSUES
 
                                        
 
              The issues presented by the parties for determination are 
 
         whether the injuries which claimant sustained on December 1, 1986 
 
         when he fell off a ladder included injury to his right arm and 
 
         shoulder and determination of claimant's entitlement to 
 
         compensation for permanent partial disability resulting from that 
 
         incident.
 
         
 
                               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.  
 
         Defendants' posthearing brief contains a reasonably accurate 
 
         summarization of some of the pertinent evidence in this case and 
 
         that summarization is adopted to some extent with modifications 
 
         deemed appropriate by the undersigned.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         THILL V. OAKLAND INDUSTRIES
 
         Page 2
 
         
 
         
 
              Leonard J. Thill is a 46-year-old married man currently 
 
         residing in Waterloo, Iowa.  At the time of the hearing on 
 
         February 13, 1989, claimant was employed as a production worker 
 
         at John Deere Waterloo Tractor Works.
 
         
 
              Claimant completed the tenth grade at East Waterloo High 
 
         School, and subsequently earned a GED while serving in the United 
 
         States military.  He has been employed as a laborer for most of 
 
         his adult life.  From November 1973 to December 1984, claimant 
 
         worked as a laborer at John Deere Waterloo Tractor works.  He was 
 
         laid off from his job as a paint line worker at John Deere in 
 
         December 1984.  In January 1986, claimant obtained a job as a 
 
         general laborer with Oakland Industries of Cedar Falls, Iowa, a 
 
         small company which manufactures recreational vehicles.  His 
 
         duties included building frames, installing windows and doors, 
 
         and performing carpentry, electrical and plumbing work on 
 
         recreational vehicles.
 
         
 
              On December 1, 1986, claimant was injured at work when he 
 
         fell while hanging sheet rock.  He landed in a pile of scrap wood 
 
         located on the floor of the building in which he was working.  As 
 
         a result of the fall, claimant sustained a fractured right 
 
         kidney.  On December 2, 1986, claimant underwent an exploratory 
 
         laparotomy and right nephrectomy performed by B. K. Okamoto, 
 
         M.D., at Sartori Memorial Hospital in Waterloo, Iowa.  
 
         Postoperatively, claimant was followed by Vishwanath T. Nagale, 
 
         M.D., who observed that claimant healed quite well.  Dr. Nagale 
 
         discharged claimant on March 2, 1987 without identifying any 
 
         physical restrictions (claimant's exhibit 1), but with a notation 
 
         that claimant had been instructed regarding limitations.
 
         
 
              Claimant stated that his shoulder had hurt ever since the 
 
         fall.  On March 10, 1987, claimant went to his family doctor, 
 
         Richard Frankhauser, M.D., because of pain in his right shoulder 
 
         which had been present since the December 1 accident.  Dr. 
 
         Frankhauser diagnosed claimant's shoulder problem as adhesive 
 
         capsulitis ("frozen shoulder") (claimant's exhibit 51).  Claimant 
 
         had not sought treatment for this condition between December 1986 
 
         and March 1987.  The medical records of Dr. Frankhauser (Medical 
 
         Associates' clinical data, exhibit 51) indicate that claimant 
 
         experienced discomfort in his right shoulder as far back as 1978.  
 
         He subsequently complained of pain in his shoulders in February 
 
         1981, December 1982, and March 1983.  A diagnosis of thoracic 
 
         outlet syndrome was made on December 12, 1982.  None of the notes 
 
         of claimant's visits to Dr. Frankhauser between March 21, 1983 
 
         and March 10, 1987 mention shoulder problems.
 
         
 
              Claimant returned to work at Oakland Industries on April 20, 
 
         1987, performing essentially the same type of work that he did 
 
         prior to his injury.  Mr. Thill worked at Oakland Industries 
 
         continuously and without interruption from April 1987 until 
 
         December 15, 1987, at which time he was recalled from lay-off at 
 
         John Deere Waterloo Tractor Works.  At Oakland Industries,
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         THILL V. OAKLAND INDUSTRIES
 
         Page 3
 
         
 
         
 
         claimant received pay increases from the $4.50 per hour he was 
 
         earning on the date of the injury to $6.00 per hour in September 
 
         1987.
 
         
 
              Upon returning to work at John Deere, claimant worked as a 
 
         "hob operator," a job which involves placing parts which weigh up 
 
         to 20 pounds into a gear-making machine.  The job requires 
 
         claimant to reach in front of him at waist or chest level to 
 
         place the various parts into a machine.  The job also requires 
 
         him to occasionally lift and carry parts from other locations in 
 
         his job area.  This job initially paid claimant at the rate of 
 
         approximately $12.00 per hour.  His current base pay rate is 
 
         $13.09 per hour, and he also earns "incentive pay" based on his 
 
         production output.  Claimant has earned in excess of $15.00 per 
 
         hour with incentive pay.
 
         
 
              With regard to claimant's shoulder, he was ultimately 
 
         referred by Dr. Frankhauser to James E. Crouse, M.D., an 
 
         orthopaedic surgeon, who has treated claimant from April 1987 to 
 
         January 1989.  Dr. Crouse diagnosed claimant as having 
 
         subacromial bursitis, and tendonitis with adhesive capsulitis of 
 
         the right shoulder (claimant's exhibits 10 and 14).  On May 18, 
 
         1988 claimant underwent surgery on his right shoulder consisting 
 
         of acromioplasty, release of the coracoacromial ligament, 
 
         excision of the subacromial bursa and exploration of the rotator 
 
         cuff (claimant's exhibit 7).  Claimant returned to "light duty" 
 
         work at John Deere on June 28, 1988.  He ultimately returned to 
 
         his job as a hob operator on November 2, 1988 and has been 
 
         employed in that capacity since then.
 
         
 
              When claimant commenced treatment with Dr. Crouse, the 
 
         history given was that the onset of symptoms occurred on December 
 
         1 (claimant's exhibit 37).  In a progress note entered in early 
 
         1987, Dr. Crouse states: "I have tried to reassure him that after 
 
         a terrible injury like he had and adhesive capsulitis, a shoulder 
 
         just frequently takes many many months to eventually recover .,,. 
 
         ." In a report dated January 16, 1989, Dr. Crouse states:
 
         
 
              Leonard Thill continues to have persistent shoulder symptoms 
 
              since an injury in December of 1986.  He underwent an 
 
              acromioplasty with exploration of the rotator cuff on 
 
              5-18-88 but continues to have pain with activities and 
 
              weakness of the shoulder.  I would anticipate a permanent 
 
              impairment of 8% of the upper extremity due to the shoulder 
 
              problem.  It is likely that Mr. Thill is not going to be 
 
              able to continue with his present job which requires a good 
 
              deal of reaching and lifting using his arm.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              John Petersen, a qualified vocational consultant, testified 
 
         that he has evaluated claimant's work history, transferable 
 
         skills, education and physical capabilities.  Petersen felt that 
 
         claimant has lost access to a major portion of the jobs
 
         
 
         
 
         
 
         THILL V. OAKLAND INDUSTRIES 
 
         Page 4
 
         
 
         
 
         which he was capable of performing prior to the time of the 
 
         December 1, 1986 accident.  Petersen felt that claimant's current 
 
         job at John Deere is beyond claimant's physical capabilities.  He 
 
         also stated, however, that people often work with pain or 
 
         contrary to a physician's recommended restrictions.
 
         
 
              Claimant stated that he is fatigued by the end of a work 
 
         day.  He is concerned that he may not be able to continue his 
 
         employment at John Deere.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              There is no dispute with regard-to the loss of claimant's 
 
         right kidney and any resulting permanent disability having been 
 
         caused by the December 1, 1987.  The real issue in the case 
 
         revolves upon claimant's right shoulder.  The records from Dr. 
 
         Frankhauser show that claimant had some shoulder complaints prior 
 
         to 1987.  In 1978, the diagnosis of thoracic outlet syndrome was 
 
         made and surgery was suggested (claimant's exhibit 55).  There is 
 
         a notable lack of any mention of shoulder problems in the time 
 
         period running from March of 1983 through March of 1987.  The 
 
         medical records in evidence which deal with.the treatment 
 
         immediately following the December 1, 1986 incident do not 
 
         contain any note of complaints regarding claimant's right 
 
         shoulder.  The evidence in the case shows that claimant returned 
 
         to his employment at Oakland Industries and worked in that 
 
         employment from April of 1987 until December of 1987 when he was 
 
         recalled to John Deere.  The work he performed was not, however, 
 
         characterized by the employer, Harold Sands, as not being 
 
         particularly heavy.  Sands indicated that claimant had worked 
 
         without complaint.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of December 1, 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
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         THILL V. OAKLAND INDUSTRIES
 
         Page 5
 
         
 
         
 
         Iowa 516, 133 N.W.2d 867.  See also Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              Aggravation of a preexisting condition is one form of 
 
         compensable injury.  An employer takes an employee subject to any 
 
         active or dormant health impairments, and a work connected injury 
 
         which more than slightly aggravates the condition is considered 
 
         to be a personal injury.  Ziegler v. United States Gypsum Co., 
 
         252 Iowa 613, 620, 106 N.W.2d 591 (1960), and cases cited.
 
         
 
              Claimant's shoulder complaints were voiced to Dr. 
 
         Frankhauser in March of 1987, approximately a month prior to the 
 
         time that he returned to work at Oakland Industries following the 
 
         December 1, 1986 incident.  It is therefore apparent that this 
 
         case presents a situation where Leonard Thill may have had some 
 
         prior shoulder problems in the late 1970's and early 1980's, but 
 
         that they were apparently of sufficiently minor symptomatology 
 
         that he did not seek any medical treatment for the condition 
 
         subsequent to March of 1983.  It was not until after he fell in 
 
         December of 1986 that he again sought treatment for shoulder 
 
         complaints.  That treatment was sought beginning in March of 
 
         1987, approximately three and one-half months following the date 
 
         of the fall.  It was approximately one month prior to the time 
 
         that claimant was released to return to work.  It would be 
 
         expected that claimant would have been experiencing significant 
 
         discomfort in regard to his kidney removal surgery and the 
 
         general trauma from the fall.  Claimant would be expected to have 
 
         been relatively inactive during the initial phases of 
 
         recuperation from the kidney surgery.  It is not unusual that 
 
         complaints regarding other parts of the body would not be made 
 
         until a substantial amount of time had passed in order to allow 
 
         recuperation from both the initial trauma and the surgery.  The 
 
         chronological order and time lapses regarding the complaints 
 
         affecting claimant's shoulder and the December 1, 1986 are 
 
         consistent with the fall having either. caused the condition 
 
         which Dr. Crouse treated or substantially aggravated a 
 
         preexisting relatively asymptomatic condition making Dr. Crouse's 
 
         treatment necessary.  Further, at exhibits 54 and 38, Dr. Crouse 
 
         strongly indicates that the December 1, 1986 incident was a 
 
         factor in producing claimant's shoulder complaints.  For a cause 
 
         to be proximate, it need only be a substantial factor in bringing 
 
         about the result.  It need not be the only factor.  Blacksmith v. 
 
         All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980).  It is 
 
         therefore determined that the fall which claimant sustained on 
 
         December 1, 1986 is a substantial factor in producing the 
 
         condition which Dr. Crouse found and treated in claimant's right 
 
         shoulder and also of the resulting disability.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Defendants have the burden of persuasion with regard to the 
 
         existence or extent of any preexisting permanent disability 
 
         affecting claimant's right shoulder.  Varied Industries v.
 
         
 
         
 
         
 
         THILL V. OAKLAND INDUSTRIES 
 
         Page 6
 
         
 
         
 
         Sumner, 353 N.W.2d 407 (Iowa 1984); Becker v. D & E Distributing 
 
         Co., 247 N.W.2d 727, 731 (Iowa 1976); 2 Damages in Tort Actions, 
 
         section 15.34[l](a). No evidence exists in the record of this 
 
         case which would support a finding of preexisting permanent 
 
         disability affecting claimant's right shoulder.  It is noted that 
 
         the condition of thoracic outlet syndrome is substantially 
 
         different from the condition which was treated by Dr. Crouse.  
 
         Defendants are therefore responsible for all permanent partial 
 
         disability which resulted from the December 1, 1986 injury 
 
         including both the loss of claimant's right kidney and the damage 
 
         to claimant's right shoulder.  The injuries are both injuries to 
 
         the body as a whole.
 
         
 
              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.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The loss of claimant's right kidney makes him particularly 
 
         susceptible to further injury.  It makes him at risk for serious 
 
         severe injury resulting from exposure to noxious fumes or 
 
         chemicals.  Should he sustain injury to his remaining kidney, the 
 
         consequences would be dire.  None of those things have happened, 
 
         however, and there is no probability shown in the record of this 
 
         case that any of those events will occur.  The loss of the kidney
 
         
 
         
 
         
 
         THILL V. OAKLAND INDUSTRIES 
 
         Page 7
 
         
 
         
 
         does not seem to have a large effect upon claimant's ability to 
 
         perform his customary type of work, although it likely does 
 
         inhibit somewhat motion such as side bending at the waist.
 
         
 
              The restrictions and symptoms regarding claimant's shoulder 
 
         are well corroborated by the medical findings made by Dr. Crouse.  
 
         Claimant is limited in his ability to bid and perform certain 
 
         jobs at his current employment with John Deere.  He would 
 
         likewise be limited in his access to many jobs with other 
 
         employers which he was capable of performing prior to the time of 
 
         the December 1, 1986 injury. while it is always possible that any 
 
         employment situation might change, there is nothing in the record 
 
         of this case to indicate that it is probable or likely that the 
 
         condition of claimant's shoulder or the loss of his right kidney 
 
         will cause him to lose his employment with John Deere.  When such 
 
         a situation exists, the disability is not compensated as though 
 
         the employment had been lost due to the effects of the injury.  
 
         When all the appropriate factors of industrial disability are 
 
         considered, it is determined that Leonard J. Thill sustained a 20 
 
         percent permanent partial disability as a result of the injuries 
 
         he sustained on December 1, 1986.
 
         
 
                                 FINDINGS OF FACT
 
                                        
 
              1. The injuries which Leonard J. Thill sustained on December 
 
         1, 1986 included injury to his right shoulder.
 
         
 
              2. The fall that claimant sustained on December 1, 1986 was 
 
         a substantial factor in producing the need for the treatment 
 
         provided by Dr. Crouse and the resulting eight percent permanent 
 
         impairment which exists affecting claimant's right upper 
 
         extremity.
 
         
 
              3. Leonard J. Thill has experienced a 20 percent loss of his 
 
         earning capacity as a result of the injuries he sustained on 
 
         December 1, 1986.
 
         
 
                                CONCLUSIONS OF LAW
 
                                        
 
              1. This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              2. The fall which claimant sustained on December 1, 1986 is 
 
         approximate cause of the condition which Dr. Crouse treated 
 
         affecting claimant's right shoulder and of the resulting 
 
         permanent impairment and disability related to the condition of 
 
         the shoulder.
 
         
 
              3. Claimant is entitled to receive 100 weeks of compensation 
 
         for permanent partial disability representing a 20 percent 
 
         permanent partial disability under the provisions of Code section 
 
         85.34(2)(u).
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant one
 
         
 
         
 
         
 
         THILL V. OAKLAND INDUSTRIES 
 
         Page 8
 
         
 
         
 
         hundred (100) weeks of compensation for permanent partial 
 
         disability at the stipulated rate of one hundred twenty and 
 
         64/100 dollars ($120.64) per week payable commencing April 21, 
 
         1987.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant healing 
 
         period benefits at the stipulated rate of one hundred twenty and 
 
         64/100 dollars ($120.64) per week for the period commencing May 
 
         18, 1988 and running through June 28, 1988 (six and six-sevenths 
 
         (6 6/7) weeks].  The payment of permanent partial disability 
 
         compensation is suspended for the six and six-sevenths (6 6/7) 
 
         weeks when healing period compensation is being paid and is then 
 
         reinstated effective June 29, 1988.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant twenty 
 
         (20) weeks of compensation for healing period commencing December 
 
         2, 1986 payable at the stipulated rate of one hundred twenty and 
 
         64/100 dollars ($120.64) per week.
 
         
 
              IT IS FURTHER ORDERED that defendants are entitled to credit 
 
         in the amount of twelve thousand four hundred twenty-five and 
 
         92/100 dollars ($12,425.92) as stipulated.
 
         
 
              IT IS FURTHER ORDERED that the costs of this action are 
 
         assessed against defendants including an expert witness fee for 
 
         the testimony of John Petersen in the amount of one hundred fifty 
 
         and 00/100 dollars ($150.00) 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 29th day of September, 1989.
 
         
 
         
 
         
 
         
 
                                         MICHAEL G. TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. W. H. Gilliam
 
         Attorney at Law
 
         722 Water Street
 
         Second Floor
 
         Waterloo, Iowa  50703
 
         
 
         Mr. Philip H. Dorff, Jr.
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa  50312
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1108, 1803, 1806
 
                                         Filed September 29, 1989 
 
                                         MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LEONARD J. THILL,
 
          
 
               Claimant,
 
          
 
          VS.                            File No. 839757
 
          
 
          OAKLAND INDUSTRIES,            A R B I T R A T I 0 N
 
          
 
               Employer,                 D E C I S I 0 N
 
          
 
          and
 
          
 
          AUTO-OWNERS INSURANCE,
 
          
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
         1108, 1803, 1806
 
         
 
              The scenario and chronological order of the trauma and the 
 
         onset of claimant's symptoms were corroborated by indications 
 
         from his treating surgeon that the shoulder condition was a 
 
         result of the trauma.  Such was held sufficient to establish 
 
         proximate cause.
 
         
 
              Claimant, who lost a kidney and also had a shoulder 
 
         impairment as a result of the trauma, was awarded 20 percent 
 
         permanent partial disability despite his ability to return to the 
 
         same employment which he had held prior to the injury with 
 
         little, if any, loss of actual earnings.
 
         
 
              Where it was possible that the injury may have been an 
 
         aggravation of a preexisting condition, it was held that the 
 
         burden of proving the existence of any preexisting permanent 
 
         disability rests upon the defense.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
        
 
 
 
 
 
        
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        CLAYTON BRAL,
 
        
 
            Claimant,
 
                                                         File No. 839759
 
        vs.
 
        
 
        FARMLAND FOODS, INC.,                            A R B I T R A T 
 
        I O N
 
        
 
            Employer,                                   D E C I S I O N
 
        
 
        and                                              F I L E D
 
        
 
        AETNA CASUALTY & SURETY CO.,                     MAR 2 1989
 
        
 
            Insurance Carrier,            IOWA INDUSTRIAL COMMISSIONER
 
            Defendants.
 
        
 
        
 
                                      INTRODUCTION
 
        
 
             This is a proceeding in arbitration brought by claimant, 
 
             Clayton Bral, against his employer, Farmland Foods, Inc., and 
 
             Aetna Casualty & Surety Co., insurance carrier, to recover 
 
             benefits as a result of an injury occurring on November 18, 1986. 
 
             This matter came on for hearing before the undersigned deputy 
 
             industrial commissioner in Sioux City, Iowa, on January 23, 1989. 
 
             The record in this proceeding consists of the testimony of 
 
             claimant, Kathy Bral, and Pete Scavoane; joint exhibits 1 through 
 
             38; and claimant's exhibits A, B and C.
 
        
 
            Pursuant to the prehearing report, the parties stipulated 
 
        that the claimant was injured on November 18, 1986 and this 
 
        injury arose out of and in the course of his employment; that the 
 
        back injury is causally connected to claimant's disability; that 
 
        claimant was off work from November 19, 1986 through October 27, 
 
        1987; that if permanent partial disability is found, it is an 
 
        industrial disability; that the weekly rate would be $265.02; and 
 
        that 107 4/7 weeks of benefits were paid at the rate stipulated.
 
        
 
                                      ISSUES
 
        
 
             The issues in the case are:
 
        
 
            1. The extent of claimant's entitlement to disability 
 
        benefits;
 
        
 
            2. Whether claimant is entitled to 85.27 medical benefits 
 
        and the necessity and reasonableness of the same; and
 
        
 
             3. Whether the claimant's stomach complaints are causally 
 
             connected to the injury of November 18, 1986.
 
        
 
                                 FACTS PRESENTED
 
        
 
             Claimant testified that he was injured on November 18, 1986 
 
             when, while unloading 50 pound bags of sawdust from defendant 
 
             employer's truck, claimant hurt his low back area. Claimant 
 

 
        
 
 
 
 
 
             stated he couldn't work for approximately three days and took his 
 
             previously scheduled vacation of approximately ten days, but the 
 
             pain in his back continued. Claimant testified that within three 
 
             days of his injury, he was unable to stand up straight, a sharp 
 
             pain went down his back into his right leg and he had trouble 
 
             getting out of bed and bending. Claimant testified he then went 
 
             to his family physician, D.M. Tan Creti, M.D., on the advice of 
 
             the defendant employer's nurse, approximately two weeks after the 
 
             injury. Claimant testified that when his condition did not 
 
             improve, Dr. Tan Creti referred him to a specialist, Alan H. 
 
             Fruin, M.D., who gave claimant various tests. Claimant indicated 
 
             that Dr. Fruin recommended physical therapy which the claimant 
 
             obtained for approximately one-half month and this therapy 
 
             relieved the claimant's pa-in somewhat and improved his mobility. 
 
             Claimant stated that he then saw Lonnie R. Mercier, M.D., 
 
             orthopedic surgeon, on February 12, 1987 at the insurance 
 
             carrier's request and that Dr. Mercier released the claimant for 
 
             return to work on February 17, 1987 with light duty restrictions 
 
             and lifting no more than 15 to 20 pounds. Claimant testified 
 
             that on February 17, 1987, he returned to his former job with the 
 
             employer which he had at the time of his November 18, 1986 
 
             injury, which involved despringing hams. Claimant worked two 
 
             weeks at this job. Claimant indicated that because of his back, 
 
             he was unable to do this work and was then placed on a lighter 
 
             duty job which was considered a rehabilitation job at defendant 
 
             employer's company. Claimant indicated this job required long 
 
             standing, no moving around and that he was unable to handle this 
 
             job. Claimant then stated that he went to the hospital in April 
 
             1987 for seven days of traction, heat, ice and ultrasound. 
 
             Claimant testified that in August 1987, he saw Robert J. Hacker, 
 
             M.D., for another back evaluation so as to determine whether 
 
             surgery was necessary. Claimant indicated Dr. Hacker recommended 
 
             a myelogram but claimant stated that he had two myelograms 
 
             already, the last one being in 1982 or 1983, and that he would 
 
             not have another one.
 
        
 
            Claimant stated that he began experiencing stomach problems 
 
        in June 1987 which resulted in pain into his chest and rib area. 
 
        Claimant indicated this problem comes and goes up to the present 
 
        time.
 
        
 
            Claimant testified that he went to John Westmore, M.D., for 
 
        stomach tests on September 30, 1987. Claimant stated that in 
 
        March 1988, he was no longer employed with defendant employer due 
 
        to the fact that claimant was unable to lift. Claimant indicated 
 
        that he sought various jobs which included working at gas 
 
        stations, janitor work, at a can redemption center, at a parts 
 
        store, desk job, secretary, typing, cabinet factory and grocery 
 
        stores. He submitted 20 applications. Claimant stated he had no 
 
        success and that some of the places had a job available and 
 
        others did not. Claimant said that these places to which he 
 
        inquired paid from minimum wage up to $5 per hour. Claimant 
 
        stated that he did woodworking as a hobby and that in July 1988 
 
        he started to sell more furniture that he would make. Claimant 
 
        indicated that he makes end and coffee tables, microwave carts 
 
        and entertainment centers at his residence and that he does the 
 
        sawing, the staining, gluing, planing the boards and obtains his 
 
        ideas for making furniture out of his head and in referring to 
 
        plans in magazines. Claimant emphasized that he has others do 
 
        the lifting.
 
        
 
             Claimant indicated he obtains the lumber from his father's 
 
             sawmill and that claimant loads the smaller lumber and his wife 
 
             and brother help him with the larger pieces. Claimant indicated 
 
             his gross income since July 1, 1988 is $5,000 and that his 
 
             expenses are approximately $5,500 to $6,000 which included 
 

 
        
 
 
 
 
 
             numerous tools and lumber he purchased. Claimant indicated he 
 
             had smaller tools already and recently had purchased a planer, 
 
             table saw, jointer, router and a bench saw.
 
        
 
            Claimant also admitted that he did lawn mowing for the 
 
        D.O.T. with his wife which involved riding and pushing a mower. 
 
        Claimant indicated that he and his wife were paid $75 each time 
 
        and it took six hours to mow. They did this approximately six to 
 
        seven times from April 1988 to September 1988. Claimant claims 
 
        this bothered his back.
 
        
 
            Claimant testified that he wears a TENS unit around his hip 
 
        which relieves his pain. He has had this unit since March 1987 
 
        and wears it mostly when he sits and rides. Claimant contended 
 
        that he can only sit and stand for 15 to 20 minutes before the 
 
        pain gets worse. He has had no problem walking. Claimant states 
 
        that he feels he can lift 35 pounds as a limit but is limited to 
 
        lesser amounts of 25 pounds usually. Claimant acknowledged that 
 
        a 1982 incident caused discomfort in his neck and neck problems, 
 
        but claimant contends that his current neck problems are caused 
 
        by his November 1986 injury.
 
        
 
            Claimant admitted that he put an addition on his garage in 
 
        September or October 1988 and built the walls and rafters. 
 
        Claimant stated that he had been looking for a building to lease 
 
        or purchase for his woodworking business and that he had recently 
 
        purchased a building. Claimant testified that he wanted to have 
 
        his own business for some time. Claimant indicated that he has 
 
        not worked a five day week due to his sore back since his 
 
        November 18, 1986 injury.
 
        
 
             Claimant's wife, Kathy Bral, testified that claimant worked 
 
             seven days a week prior to his November 18, 1986 injury and 
 
             described him as a workaholic. After work and on weekends she 
 
             stated that she would help the claimant roof houses, cut trees, 
 
             sell firewood, mow grass, did various kinds of carpentry work and 
 
             remodeled rooms. She indicated claimant was no longer able to do 
 
             this type of work.
 
        
 
            Pete Scavoane, a foreman with Farmland Foods, testified that 
 
        he lives around the corner from the claimant and knows the 
 
        claimant through his work at Farmland. Scavoane testified that 
 
        since November 16, 1986 he has been near claimant's house on more 
 
        than one occasion and has seen the claimant and emphasized that 
 
        he did not have the claimant under surveillance nor was he asked 
 
        by defendant employer to watch the claimant.
 
        
 
            Scavoane testified that he observed claimant in April 1988 
 
        in the back of a pickup kicking the tailgate open. This act of 
 
        the claimant surprised Scavoane. In early 1988, he saw claimant 
 
        transporting furniture down the street in the back of a pickup 
 
        truck and the claimant was bouncing around pretty good. He 
 
        indicated that since the November 18, 1986 injury, he saw 
 
        claimant transporting lumber and tree limbs, and he observed 
 
        claimant building a garage extension. Scavoane also acknowledged 
 
        that claimant put on his roof and did concrete work approximately 
 
        one year before claimant's November 1986 injury. Scavoane also 
 
        stated that sometime prior to claimant's injury, the claimant 
 
        told him that claimant expressed a desire to leave Farmland and 
 
        start his own business.
 
        
 
            D. W. Crabb, M.D., on September 11, 1980, wrote the 
 
        following: "Excuse from work 9/10 and 9/11 due to colitis & 
 
        ulcer disease. He was here & treated 9/11 at 5 p.m." (Joint 
 
        Exhibit l)
 
        
 

 
        
 
 
 
 
 
            On April 15, 1985, D.M. Tan Creti, M.D., wrote: "Work Note: 
 
        He was seen for stomach problems and is not to work 4/15/85, 
 
        4/10/85, 4/17/85. He can work on 4/18/85." (Jt. Ex. 4)
 
        
 
            On April 17, 1985, William W. Klumper, M.D., wrote: 
 
        "SUMMARY: Reduced visualization of the gall bladder with 
 
        recommendation of sonographic study." (Jt. Ex. 5, p. 3) 
 
        "SUMMARY: Mild nonspecific duodenitis with however no evidence 
 
        of ulcer and/or Crohn's disease." (Jt. Ex. 5, p. 1) "SUMMARY: 
 
        Negative upper abdominal sonographic study." (Jt. Ex. 5, p. 2)
 
        
 
            An office note of Dr. Tan Creti on August 14, 1986 reflects: 
 
        "Clayton Bral was seen 8-14-86 because of coughing and running a 
 
        fever....He has been having a lot neck problems and lower back 
 
        problems lately." Dr. Tan Creti's notes reflect that the 
 
        claimant first saw Dr. Tan Creti after his November 18, 1986 
 
        injury, on December 3, 1986. Claimant continued to see Dr. Tan 
 
        Creti one or more times per month with continued back pain 
 
        complaints.
 
             
 
             On August 20, 1987, Dr. Tan Creti opined:
 
             
 
             [I]t is my opinion that it is unlikely that Clayton Bral 
 
             will be able to recover to the point of returning to a labor 
 
             position at a packing plant. I believe that Clayton should 
 
             undergo re-training and rehabilitation training.
 
             
 
               You also asked about Clayton's stomach condition. We are 
 
             doing further testing to delineate this but it is my opinion 
 
             that his stomach symptoms do relate and are a direct result 
 
             of his back injury.
 
             
 
        (Jt. Ex. 22)
 
        
 
             On October 23, 1987, Dr. Tan Creti's notes indicate the 
 
             following:
 
        
 
                  BRAL, CLAYTON 10-23-87 He is in for evaluation. His 
 
                      condition appears at this time to be stable and anticipated 
 
                      improvement is not likely. I think he has reached the 
 
                      maximum benefit in terms of restoring function from medical, 
 
                      chiropractic or physical therapy treatment. He has 
 
                      continued to have pain and stiffness in his back with 
 
                      reduced mobility. It is clear that he would be unable to 
 
                      function at a heavy labor job. He is not, to date, been 
 
                      referred to occupational rehabilitation, but this can now be 
 
                      scheduled. Measurements today of his lack of motion of the 
 
                      spine reveal that he is able to flex forward 50 degrees from 
 
                      the O neutral position; Tilting to the right, he is limited 
 
                      to 15 degrees and tilting to the left he is limited to 20 
 
                      degrees from neutral. Rotary motion is moderately 
 
                      diminished in both directions. He is able to rotate 20 
 
                      degrees to the right. He also has nerve referred pain and 
 
                      loss of sensation of the right leg. He has anxiety 
 
                      concerning loss of his job but he is handling this fairly 
 
                      well and remains oriented and generally functional with 
 
                      realistic expectations. His weight today is 165.8 lbs. and 
 
                      his current stomach pain is described as persisting feeling 
 
                      of fullness but he is not having the severe symptoms he had 
 
                      initially. He will continue to need follow-up and physical 
 
                      therapy. I expect he will continue to have periodic flare 
 
                      ups of his back depending upon his future activities
 
             
 
        (Jt. Ex. 7, p. 13)
 
        
 
        On October 27, 1987, Dr. Tan Creti wrote:
 

 
        
 
 
 
 
 
             
 
                  Mr. Bral was last evaluated by me on 10/23/87 for his 
 
                      back injury. His back injury is a direct result of his 
 
                      employment at Farmland Foods.
 
             
 
               In addition to his back injury, Mr. Bral has developed 
 
             gastrointestinal problems which required treatment and 
 
             consultation with a specialist. I believe that with a 
 
             reasonable degree of medical certainty that these problems 
 
             are directly related to and were caused by work related 
 
             injury.
 
             
 
                  Since Mr. Bral's injuries are nearly one year old, I 
 
                      believe that his injuries constitute a permanent partial 
 
                      impairment. He has received maximal benefit from medical, 
 
                      chiropractic, and physiotherapy treatment with respect to 
 
                      restoration of function. I do not anticipate that surgical 
 
                      intervention or other treatments will improve his current 
 
                      degree of disability.
 
             
 
                  In view of Mr. Bral's limitations to return to a physical 
 
                      labor job and in view of his lack of a high school diploma, 
 
                      I have suggested that he be referred for vocational 
 
                      rehabilitation, evaluation and training. Perhaps you could 
 
                      assist in making this referral. His current restrictions 
 
                      are to not lift over 15 pounds as an occasional lifting 
 
                      task, not to do repeated (more often than every 5 minutes) 
 
                      lifting or bending tasks, not to remain with a confined 
 
                      posture for more than 15 minutes without a break to 
 
                      exercise.
 
             
 
                  On this evaluation I have found Mr. Bral to have 
 
                      permanent partial impairment referring to the spine motion, 
 
                      the intervertebral disk, and the spinal nerves. The rating 
 
                      for the whole person is 21%. There is no permanent 
 
                      disability referring to the gastrointestinal system.
 
             
 
        (Jt. Ex. 24)
 
        
 
             On November 27, 1987, Dr. Tan Creti's notes reflect: "We 
 
             set the date of the disability determination for October 27, as 
 
             the the date released to start his rehabilitation or back to any 
 
             work he could find within the limitation of his handicap and 
 
             disability." (Jt. 7, p. 13)
 
        
 
            On June 10, 1987, Robert J. Hacker, M.D., wrote:
 
        
 
                  Treatments for his severe lowback [sic] pain and spasm 
 
                      problem, and right leg numbness and aching have included 
 
                      physical therapy, a TENS unit, traction, ultrasound, 
 
                      nonsteroidal anti-inflammatory agents and muscle relaxers. 
 
                      He says the TENS unit offer some help, but otherwise none of 
 
                      the modalities have offered him much relief. 
 
             
 
                  An MRI scan was obtained which suggested a disk bulge at 
 
                      the L5 level, but no true herniation is recorded on my 
 
                      report. Presently, he says he cannot do heavy work because 
 
                      of severe lowback [sic] pains, he has a tremendous amount of 
 
                      muscle spasm and aching, his right leg pain seems to have 
 
                      improved to some degree, and he denies difficulty with 
 
                      bladder and bowel dysfunction, left lower extremity pain or 
 
                      loss of strength in either leg.
 
             
 
               His medical history is not significant and my examination 
 
             shows a pleasant male, well developed, with normal size 
 
             musculature. Range of motion of the back is markedly 
 

 
        
 
 
 
 
 
             limited and tremendous muscle spasm is present. There is 
 
             only minimal tenderness on palpation of the lowback [sic] 
 
             area, and deep tendon reflexes are normal as is his motor 
 
             and sensory testing. Straight leg raising on the right side 
 
             causes back, right buttock and thigh area pain.
 
             
 
                  Mr. Bral has a difficult problem with a protracted course 
 
                      of back pain which has not responded to an exhaustive course 
 
                      of physical therapy. I would recommend that a lumbar 
 
                      myelogram be performed to further evaluate the nature of the 
 
                      L5 disk deformity. I've discussed the reasons and rationale 
 
                      behind the recommendation for a myelogram and he 
 
                      understands.
 
             
 
                  I suggested that he discuss this with you directly, and 
 
                      then contact my office. I certainly hope I can be of help 
 
                      to you in this man's case, and I must admit it is a 
 
                      difficult problem to see a young man so disabled with [sic] 
 
                      a back injury.
 
             
 
        (Jt. Ex. 20)
 
        
 
             On August 18, 1987, Dr. Hacker wrote:
 
             
 
             TO WHOM IT MAY CONCERN:
 
             
 
                  Mr. Bral has been evaluated by myself at the request of 
 
                      Dr. Tan Creti for a lowback [sic] problem. I have evaluated 
 
                      Mr. Bral, at this time I do not feel that he has a lumbar 
 
                      disk herniation nor do I feel that further tests are 
 
                      indicated in his case. I believe that a chronic ligamentous 
 
                      lowback [sic] pain problem is likely the cause of his 
 
                      problem, and I believe that Dr. Tan Creti should continue 
 
                      management as the attending physician in his case. Further, 
 
                      I have no objections if chiropractic therapy is pursued in 
 
                      his case.
 
             
 
        (Jt. Ex. 21)
 
        
 
             On September 30, 1987, John Westmore, M.D., wrote:
 
             
 
                  Upper gastrointestinal endoscopy was carried out. This 
 
                      examination revealed the presence of a rather small hiatal 
 
                      hernia. There was also rather minor erythema present within 
 
                      the distal antrum. The remainder of the examination was 
 
                      unremarkable.
 
             
 
                  It is my impression that Mr. Bral's pain probably is not 
 
                      due to inflammatory disease of the stomach or duodenum. I 
 
                      believe that a more likely cause is that of periodic gaseous 
 
                      distention of the splenic flexure of colon or so-called 
 
                      splenic flexure syndrome. This, of course, could be 
 
                      aggravated by aerophagia. Predisposing factors to the 
 
                      latter would include anxiety, ill-fitting dentures and 
 
                      smoking. I would suggest that an attempt be made to 
 
                      normalize his bowel habit trying to avoid both the periods 
 
                      of constipation and periods of increased stool frequency. 
 
                      As a beginning, I would recommend use of a diet moderately 
 
                      high in fiber content along with a stool softener and 
 
                      bulking agent such as Metamucil 2-3 times per day. He may 
 
                      also benefit by having his dentures repaired and reduction 
 
                      of smoking and reduction of his anxiety if at all possible.
 
             
 
        (Jt. Ex. 24)
 
        
 
             Lonnie Mercier, M.D., wrote on November 27, 1987:
 

 
        
 
 
 
 
 
             
 
                  I re-evaluated Clayton Bral on November 20. Mr. Bral 
 
                      stated that he had not been working since April 1 and was 
 
                      apparently doing all right but had a rapid downhill course 
 
                      with discomfort after a minor twisting injury. He had been 
 
                      under the care of his family doctor and apparently did 
 
                      return to work once but did not do well. He apparently has 
 
                      been sent to a chiropractor and gets occasional physical 
 
                      therapy which he feels helps a little.
 
             
 
                  Mr. Bral was also sent to Dr. Hacker, the neurosurgeon, 
 
                      in August who did not apparently feel that surgery would be 
 
                      helpful. Mr. Bral wears a TNS unit. He says that sneezing 
 
                      makes his back and leg sore.
 
             
 
                  Physical examination revealed only about 30% of normal 
 
                      lumbosacral movement and considerable diffuse discomfort in 
 
                      the low back. Objective examination was difficult because 
 
                      of considerable subjective symptomatology, but clinically 
 
                      his overall objective examination appears good with a normal 
 
                      neurologic exam and negative straight leg raising test. 
 
                      There was no atrophy.
 
             
 
                  Regarding your letter dated November 12, it would appear 
 
                      that Mr. Bral has probably reached medical improvement 
 
                      although I still believe his symptoms will eventually 
 
                      subside. As far as restrictions for future employment are 
 
                      concerned, his restrictions would only be limited according 
 
                      to his ability to tolerate his discomfort and work with it. 
 
                      He apparently had a relatively minor twisting injury at work 
 
                      so I don't think placing any weight restrictions on his 
 
                      ability would necessarily keep him from having a recurrence. 
 
                      Mr. Bral may continue to have minor recurrences of his pain 
 
                      in the future no matter what he does, but strictly on a 
 
                      physical basis, he could do anything that he wants to do. 
 
                      That is not to say that these activities would not cause 
 
                      pain, but these activities even though they might cause 
 
                      pain, they would not cause him any harm. As far as the 
 
                      question of whether Mr. Bral is currently "disabled", I 
 
                      would say that he is not. I believe that Mr. Bral could 
 
                      take part in gainful employment and thus, I don't feel that 
 
                      he is disabled.
 
             
 
                  Regarding objective residual permanency, I believe that 
 
                      Mr. Bral has a 5% whole body rating.
 
             
 
               Regarding the correlation of any stomach symptoms and his 
 
             back injury, I do not believe there is any direct 
 
             correlation.
 
             
 
                  Regarding recommendations for future care, I believe Mr. 
 
                      Bral has exhausted all the traditional methods of treatment 
 
                      and I would not recommend any further treatment.
 
             
 
               To summarize, I believe that Mr. Bral's pain is 
 
             legitimate but simply something he will have to work and 
 
             live with. Hopefully, over a period of time, it will simply 
 
             go away on its own.
 
             
 
        (Jt. Ex. 30)
 
        
 
             James T. Rogers, M.S., Director of Rehabilitation, wrote on 
 
             March 16, 1988:
 
        
 
                  For the last 2 or 3 weeks, Mr. Bral has been working at 
 
                      his hobby of building furniture, end tables, cradles, etc. 
 

 
        
 
 
 
 
 
                      He tolerates about 4 hours a day of this activity. If he 
 
                      could get the finances, tools, and market for his products, 
 
                      Clayton hopes, or at least is considering, furniture making 
 
                      to be a future occupation. He believes this is a job which 
 
                      he could do at his own pace and one in which his wife would 
 
                      do some of the physical labor. He and his wife believe that 
 
                      he has talent for this type of work.
 
             
 
        (Jt. Ex. 32; pp. 7-8)
 
        
 
                            APPLICABLE LAW AND ANALYSIS
 
        
 
             The claimant has the burden of proving by a preponderance of 
 
             the evidence that the injury of November 18, 1986 is causally 
 
             related to the disability on which he now bases his claim. 
 
             Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 
             Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A 
 
             possibility is insufficient; a probability is necessary. Burt v. 
 
             John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
             (1955). The question of causal connection is essentially within 
 
             the domain of expert testimony. Bradshaw v. Iowa Methodist 
 
             Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
        
 
            However, expert medical evidence must be considered with all 
 
        other evidence introduced bearing on the causal connection. 
 
        Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need 
 
        not be couched in definite, positive or unequivocal language. 
 
        Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, 
 
        the expert opinion may be accepted or rejected, in whole or in 
 
        part, by the trier of fact. Id. at 907. Further, the weight to 
 
        be given to such an opinion is for the finder of fact, and that 
 
        may be affected by the completeness of the premise given the 
 
        expert and other surrounding circumstances. Bodish, 257 Iowa 
 
        516, 133 N.W.2d 867. See also Musselman v. Central Telephone 
 
        Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
        
 
            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). 
 
        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 section 555(17)a.
 
        
 
             An employer takes an employee subject to any active or 
 
             dormant health impairments, and a work connected injury which 
 
             more than slightly aggravates the condition is considered to be a 
 
             personal injury. Ziegler 252 Iowa 613, 620, 106 N.W.2d 591, and 
 
             cases cited.
 
        
 
            An employee is not entitled to recover for the results of a 
 
        preexisting injury or disease but can recover for an aggravation 
 
        thereof which resulted in the disability found to exist. Olson 
 
        v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
        Yeager 253 Iowa 369, 112 N.W.2d 299; Ziegler, 252 Iowa 613, 106 
 
        N.W.2d 591. See also Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 
 
        (1965); Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 
 
        35 (1934).
 
        
 
            Iowa Code section 85.34(1) provides that if an employee has 
 
        suffered a personal injury causing permanent partial disability, 
 
        the employer shall pay compensation for a healing period from the 
 
        day of the injury until (l) the employee returns to work; or (2) 
 
        it is medically indicated that significant improvement from the 
 

 
        
 
 
 
 
 
        injury is not anticipated; or (3) until the employee is medically 
 
        capable of returning to substantially similar employment.
 
        
 
        
 
                  By the very meaning of the phrase, a person with a 
 
                      "permanent disability" can never return to the same physical 
 
                      condition he or she had prior to the injury....See, 2 A. 
 
                      Larson, The Law of Workmen's Compensation section 57.12 
 
                      (1981). The healing period may be characterized as that 
 
                      period during which there is reasonable expectation of 
 
                      improvement of the disabling condition," and ends when 
 
                      maximum medical improvement is reached. Boyd v. Hudson Pulp 
 
                      & Paper Corp., 177 So.2d 331, 330 (Fla. 1965) . That is, it 
 
                      is the period "from the time of the injury until the 
 
                      employee is as far restored as the permanent character of 
 
                      his injury will permit. Winn Drilling Company v. Industrial 
 
                      Commissioner, 32 Ill.2d 144, 145-6, 203 N.E.2d 904,905-6 
 
                      (1965). See also W. Schneider, Schneider's Workman's 
 
                      Compensation, section 2308 (1957). Thus, the healing period 
 
                      generally terminates "at the time the attending physician 
 
                      determines that the employee has recovered as far as 
 
                      possible from the effects of the injury. Winn, 203 N.E. at 
 
                      906.
 
             
 
        Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60, 65 (Iowa 
 
        1981).
 
        
 
             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. * * * *
 
             
 
             
 
             This 33 year old claimant suffered an injury on November 18, 
 
             1986 while unloading 50 pound bags of sawdust from defendant 
 
             employer's truck. Shortly thereafter, claimant noticed pain in 
 
             his low back. This pain has existed in various degrees to the 
 
             present. Although the evidence indicates that claimant had back 
 
             pain prior to this injury, there is no evidence that this caused 
 
             him difficulty which prevented him from working and that it was 
 
             not until this injury of November 18, 1986 that claimant's back 
 
             pain and condition became so bad that he was unable to work. Any 
 
             preexisting condition that claimant may have had is not the cause 
 
             of claimant's present condition.
 
        
 
            Claimant worked for defendant employer for nine years before 
 
        his injury and performed various jobs for them. Claimant 
 
        returned to work on February 17, 1987 with restrictions of light 
 

 
        
 
 
 
 
 
        lifting and little bending. Claimant continued to have problems 
 
        and was hospitalized on April 7, 1987. Claimant has never 
 
        returned to work again for defendant employer. On October 27, 
 
        1987, claimant's treating physician, Dr. Tan Creti, wrote:
 
        
 
             I believe that his injuries constitute a permanent partial 
 
             impairment. He has received maximal benefit from medical, 
 
             chiropractic, and physiotherapy treatment with respect to 
 
             restoration of function. I do not anticipate that surgical 
 
             intervention or other treatments will improve his current 
 
             degree of disability.
 
             
 
        (Jt. Ex. 28)
 
        
 
             Dr. Tan Creti opined a 21 percent impairment to claimant's 
 
             body as a whole. Dr. Mercier opined a 5 percent impairment to 
 
             claimant's body as a whole.
 
        
 
             Claimant contended that his gastrointestinal problems that 
 
             he developed several months after his injury were the result of 
 
             his work injury of November 18, 1986 and were exacerbated by the 
 
             anxiety over this injury and problems with his employer. Evidence 
 
             shows that the claimant had gastrointestinal problems in the past 
 
             which would periodically flare up. It was almost one year after 
 
             claimant's November 18, 1986 injury that claimant again 
 
             complained of stomach problems. I believe the greater weight of 
 
             medical evidence supports Dr. Mercier's opinion that there is no 
 
             direct correlation between claimant's stomach symptoms and his 
 
             back injury. John Westmore, M.D., a specialist to whom Dr. Tom 
 
             Creti sent claimant, did not opine any causal connection between 
 
             claimant's injury and his stomach problems and indicated 
 
             claimant's stomach problems could result from anxiety, smoking or 
 
             ill-fitting dentures.
 
             
 
             The greater weight of medical evidence indicates claimant's 
 
             impairment is closer to 21 percent. Dr. Tan Creti has been 
 
             treating claimant over a longer period of time and has followed 
 
             the claimant's medical history since his injury of November 18, 
 
             1986. The evidence shows that Dr. Tan Creti did a more complete 
 
             examination to determine an impairment rating.
 
             
 
             Claimant's work history has been in the manual labor area. 
 
             Claimant completed the eighth grade and has not obtained a GED. 
 
             The evidence shows that claimant has a very good self-acquired 
 
             talent of making handmade custom furniture such as microwave 
 
             carts, coffee tables, entertainment centers, cedar chests, 
 
             vanities, and picture frames (see joint exhibit 36). It appears 
 
             claimant had considered quitting Farmland before his injury to 
 
             perform his hobby full time. Claimant testified he has purchased 
 
             a building out of which he is going to operate his custom 
 
             furniture business. Being his own boss, claimant can take his 
 
             required rest, break up his hours from work, and have his wife 
 
             and others do his lifting in order to comply with his medical 
 
             restrictions and attempt to earn a living.
 
             
 
             Claimant has sought other employment unsuccessfully. It 
 
             would appear he may be limited to the minimum wage to $5.00 per 
 
             hour range. Claimant does have a talent that he can more fully 
 
             develop and practice.
 
             
 
             Although the extent of loss of income is not determinable to 
 
             any degree, the claimant has a loss of earning capacity which 
 
             would be greater if it were not for his carpentry, woodworking 
 
             and furniture making talents.
 
             
 
             Claimant is developing his furniture building business. 
 

 
        
 
 
 
 
 
             Claimant's voluntary choice to start his business that may result 
 
             in a loss of income and lower paying job is not defendants' 
 
             responsibility.
 
        
 
             Claimant has a 20 percent industrial disability due to his 
 
             injury of November 18, 1986.
 
             
 
             Claimant returned to work on February 17, 1987 with 
 
             restrictions of light lifting and little bending. Claimant was 
 
             hospitalized again on April 7, 1987 and never returned to work 
 
             for defendant employer again. Claimant's treating doctor, Dr. 
 
             Tan Creti, wrote on October 27, 1987 that claimant has received 
 
             maximal benefit from medical, chiropractic and physiotherapy 
 
             treatment with respect to restoration of function.
 
             
 
             Claimant incurred a healing period from November 19, 1986 up 
 
             to February 17, 1987 and a second healing period beginning April 
 
             7, 1987 up to and not including October 27, 1987.
 
                  
 
             Claimant's medical bills incurred for his stomach problems 
 
             are not causally connected to claimant's back injury on November 
 
             18, 1986. Dr. Hacker, to whom claimant was referred by Dr. Tan 
 
             Creti, stated that he had no objections if chiropractic therapy 
 
             was pursued. Defendants had previously paid for such treatment 
 
             after claimant's injury and it appears this treatment aided in 
 
             claimant's recovery.
 
                  
 
                                 FINDINGS OF FACTS
 
                  
 
             WHEREFORE, it is found:
 
             
 
             1. That claimant was injured on November 18, 1986 when, 
 
             while working for defendant employer unloading 50 pound bags of 
 
             sawdust, he hurt his low back.
 
             
 
             2. As a result of his November 18, 1986 injury, claimant 
 
             incurred a healing period from and including November 19, 1986 to 
 
             and including February 16, 1987 and again beginning and including 
 
             April 7, 1987 to and including October 26, 1987.
 
                  
 
             3. As a result of his November 18, 1986 injury, claimant 
 
             has a a 20 percent permanent impairment to his body as a whole.
 
             
 
             4. Claimant has restrictions resulting from his work injury 
 
             on November 18, 1986 of 15 pounds occasional lifting, no repeated 
 
             lifting or bending tasks more often than five minutes, and not to 
 
             remain with a confined posture for more than 15 minutes without a 
 
             break to exercise.
 
             
 
             5. Claimant incurred gastrointestinal problems which were 
 
             not the result of his injury of November 18, 1984 and have not 
 
             resulted in any impairment.
 
             
 
             6. Claimant reached maximum recovery on October 27, 1987.
 
             
 
             7. Claimant has incurred medical expenses involving his 
 
             work-related injury for treatment of his back which should be 
 
             paid by defendants.
 
        
 
             8. The weekly rate of compensation is $265.02.
 
             
 
                                 CONCLUSIONS OF LAW
 
             
 
             THEREFORE, it is concluded:
 
             
 
             Claimant sustained an injury which arose out of and in the 
 

 
        
 
 
 
 
 
             course of his employment on November 18, 1986.
 
        
 
            Claimant's injury on November 18, 1986 is causally connected 
 
        to his disability.
 
        
 
            Claimant has sustained an industrial disability of 20 
 
        percent to the body as a whole.
 
        
 
            Claimant reached maximum recovery on October 27, 1987.
 
        
 
            Claimant incurred a healing period beginning and including 
 
        November 19, 1986 to and including February 16, 1987 and a second 
 
        healing period of April 7, 1987, inclusive, to and including 
 
        October 26, 1987.
 
        
 
            Claimant has incurred medical expenses for his back which 
 
        are causally connected to his work injury of November 18, 1986 
 
        and were necessary and reasonable.
 
        
 
                                      ORDER
 
        
 
             THEREFORE, it is ordered:
 
        
 
            That defendants shall pay unto claimant one hundred (100) 
 
        weeks of permanent partial disability at the stipulated rate of 
 
        two hundred sixty-five and 02/100 dollars ($265.02) commencing 
 
        October 27, 1987. Defendants shall be given credit for amounts 
 
        already paid.
 
        
 
            That defendants are to pay unto claimant twelve and 
 
        six-sevenths (12 6/7) weeks of healing period benefits for the 
 
        period of and including November 19, 1986 to and including 
 
        February 16, 1987, and twenty-nine (29) weeks for a second 
 
        healing period from and including April 7, 1987 to and including 
 
        October 26, 1987, both totaling forty-one and six-sevenths (41 
 
        6/7) weeks at the weekly rate of two hundred sixty-five and 
 
        02/100 dollars ($265.02). Defendants shall be given credit for 
 
        amounts already paid.
 
        
 
            Defendants shall pay the Crawford County Memorial Hospital 
 
        bill of one hundred sixty dollars ($160.00) and the Denison 
 
        Chiropractic Clinic bill of one thousand three hundred 
 
        fifty-three and 38/100 dollars ($1,353.38), either directly to 
 
        the provider or if already paid by claimant then to reimburse 
 
        claimant.
 
        
 
             Defendants shall pay the accrued weekly benefits in a lump 
 
             sum.
 
        
 
            Defendants shall pay interest on benefits awarded herein as 
 
        set forth in Iowa Code section 85.30.
 
        
 
            Defendants shall pay the costs of this action pursuant to 
 
        Division of Industrial Services rule 343-4.33.
 
        
 
            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 20th day of March, 1989.
 
        
 
        
 
        
 
        
 
        
 
                                        BERNARD J. O'MALLEY
 

 
        
 
 
 
 
 
                                        DEPUTY INDUSTRIAL COMMISSIONER
 
        
 
        Copies to:
 
        
 
        Mr. R. J. Tilton
 
        Attorney at Law
 
        1321 Bradway
 
        Denison, IA 51442
 
        
 
        Ms. Judith Ann Higgs
 
        Attorney at Law
 
        200 Home Federal Bldg.
 
        P.O. Box 3086
 
        Sioux City, IA 51102
 
        
 
        
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CLAYTON BRAL,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 839759
 
            FARMLAND FOODS, INC.,         :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY CO.,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
                 
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Claimant appeals from an arbitration decision awarding  
 
            permanent partial disability benefits as the result of an 
 
            alleged injury on November 18, 1986.  The record on appeal 
 
            consists of the transcript of the arbitration proceeding; 
 
            joint exhibits 1 through 38; and claimant's exhibits A, B 
 
            and C.  Both parties filed briefs on appeal.  Claimant filed 
 
            a reply brief.
 
            
 
                                      ISSUES
 
            
 
                 The issues as stated by claimant are:
 
            
 
                 A. Whether the deputy industrial commissioner 
 
                 erred by excluding the testimony of James T. 
 
                 Rogers at the hearing in this matter.
 
            
 
                 B. Whether the deputy industrial commissioner 
 
                 erred by not finding a period of temporary partial 
 
                 disability from February 17, 1987 to April 6, 
 
                 1987.
 
            
 
                 C. Whether the deputy industrial commissioner 
 
                 erred by finding only a twenty percent industrial 
 
                 disability.
 
            
 
                              REVIEW OF THE EVIDENCE
 
            
 
                 The arbitration decision adequately and accurately 
 
            reflects the pertinent evidence and it will not be set forth 
 
            herein. 
 
            
 
                                  APPLICABLE LAW
 
            
 
                 The citations of law in the arbitration decision are 
 
            appropriate to the issues and the evidence.  In addition, 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            the following authorities are noted:
 
            
 
                    If a party expects to call an expert witness 
 
                 when the identity or the subject of such expert 
 
                 witness' testimony has not been previously 
 
                 disclosed in response to an appropriate inquiry 
 
                 directly addressed to these matters, such response 
 
                 must be supplemented to include the information 
 
                 described in subdivisions "a"(1)(A)-(C) of this 
 
                 rule, as soon as practicable, but in no event less 
 
                 than thirty days prior to the beginning of trial 
 
                 except on leave of court.  If the identity of an 
 
                 expert witness and the information described in 
 
                 subdivisions "a"(1)(A)-(C) are not disclosed in 
 
                 compliance with this rule, the court in its 
 
                 discretion may exclude or limit the testimony of 
 
                 such expert, or make such orders in regard to the 
 
                 nondisclosure as are just.
 
            
 
            Iowa Rule of Civil Procedure 125(c).
 
            
 
                                     ANALYSIS
 
            
 
                 Claimant raises as an issue on appeal the deputy's 
 
            exclusion of the testimony of James Rogers, a vocational 
 
            rehabilitation specialist.  Rogers was listed on claimant's 
 
            witness list provided to defendants, and a written report by 
 
            Rogers was listed by claimant on the exhibit list and a copy 
 
            timely provided to defendants.  However, defendants had 
 
            served interrogatories on claimant, one of which requested 
 
            claimant to list all expert witnesses claimant intended to 
 
            utilize at the hearing.  Claimant's response when he 
 
            originally answered the interrogatories was that the 
 
            identity of expert witnesses was unknown at that time, but 
 
            that the answer to the interrogatory would be supplemented 
 
            prior to the completion of discovery. 
 
            
 
                 At the time of the hearing, claimant had not 
 
            supplemented the interrogatory answer dealing with expert 
 
            witnesses.  The written report of Rogers was admitted into 
 
            the record (as Joint Exhibit 32), but the witness was not 
 
            allowed to testify except by way of offer of proof.
 
            
 
                 Subsequent to the hearing in this case, the hearing 
 
            assignment order utilized by this agency was modified.  The 
 
            modification now makes it clear that parties are required to 
 
            comply with Iowa Rule of Civil Procedure 125(c), and must 
 
            supplement interrogatory answers in a timely fashion.  
 
            However, the hearing assignment order used in this case did 
 
            not contain such a requirement.  The hearing assignment 
 
            order in this case was filed August 22, 1988.
 
            
 
                 Claimant argues that the case should be remanded to the 
 
            deputy to allow the testimony of Rogers, or, in the 
 
            alternative, that the offer of proof be considered on 
 
            appeal.  Claimant states that the exclusion of this 
 
            testimony is not harmless error, as Rogers' testimony 
 
            expands upon his written findings and supplements those 
 
            findings with later events. 
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Defendants cannot claim any surprise or prejudice.  
 
            Defendants were in possession of Rogers' written report some 
 
            11 months prior to the hearing.  Defendants were informed 15 
 
            or more days prior to the hearing that Rogers would be 
 
            called as a witness at the hearing.  Defendants point out 
 
            that the industrial commissioner's newsletter of November 
 
            1988, cautioned the workers' compensation bar in Iowa to 
 
            comply with the duty to supplement interrogatory responses 
 
            under Iowa R.Civ.P. 125(c) in regard to expert witnesses.  
 
            However, a later appeal case, Nammany v. Stellco, decided 
 
            October 17, 1989, addressed a situation where defendants had 
 
            listed an expert witness under the hearing assignment order 
 
            then in use, but had failed to supplement an earlier 
 
            interrogatory requesting the identity of expert witnesses.  
 
            Claimant acknowledged in that case that there was a 
 
            technical non-compliance only, and no surprise or prejudice 
 
            would result by admitting the testimony.  The deputy in that 
 
            case allowed the expert to testify, over claimant's 
 
            objection.  The deputy's decision to allow the testimony was 
 
            affirmed on appeal to the industrial commissioner.
 
            
 
                 In the instant case, there was also no surprise or 
 
            prejudice to defendants.  Defendants were aware of James 
 
            Rogers, were aware that he was an expert witness, were aware 
 
            from his written report of the substance and basis of the 
 
            opinions he intended to offer, and were aware that claimant 
 
            intended to call him as a witness at the hearing, all within 
 
            the time limits required by the rules or an order of this 
 
            agency.  In light of this, the testimony of James Rogers 
 
            should have been admitted at the hearing.  The testimony of 
 
            James Rogers was preserved in the transcript of the hearing 
 
            with an offer of proof, and this testimony will be 
 
            considered on appeal in conjunction with the other evidence.
 
            
 
                 Although the hearing assignment order now used by this 
 
            agency clearly spells out the role played by Iowa R.Civ.P 
 
            125(c) in adjudicated cases before this agency, the hearing 
 
            assignment order in effect at the time of the hearing in the 
 
            instant case did not.  Any conflict between Iowa R.Civ.P. 
 
            125(c) and the hearing assignment order that existed at the 
 
            time of the hearing in this case has now been resolved by 
 
            the additional language of the "new" hearing assignment 
 
            order.  Thus, both this decision and Nammany are decisions 
 
            confined to the facts and the record in existence in those 
 
            cases at the time of those hearings and the evidentiary 
 
            rulings made at those hearings.  Neither Nammany nor this 
 
            case serve as valid precedent for cases where the hearing 
 
            assignment order, containing language requiring the parties 
 
            to comply with Iowa R.Civ.P. 125(c), is present and 
 
            controlling.
 
            
 
                 In addition, it is pointed out that Iowa R.Civ.P. 
 
            125(c) contemplates the exercise of discretion by the 
 
            decision maker on whether to admit or exclude evidence.  An 
 
            appeal to the industrial commissioner contemplates a de novo 
 
            review of the deputy's decision.  Thus, the industrial 
 
            commissioner possesses the same discretion under Iowa 
 
            R.Civ.P. 125(c) as the deputy industrial commissioner who 
 
            originally heard the case.  The commissioner is not bound to 
 
            exercise that discretion in the same manner as exercised by 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            the deputy.
 
            
 
                 Claimant's second issue on appeal concerns temporary 
 
            partial disability.  However, defendants' assertions in 
 
            their appeal brief, and claimant's statement in his reply 
 
            brief, indicate that this issue has been resolved.  The 
 
            parties agree that defendants will not receive credit 
 
            against permanent partial disability benefits for amounts 
 
            paid for temporary partial disability.  
 
            
 
                 Claimant's final issue on appeal is the extent of his 
 
            industrial disability.  Claimant, in his reply brief, argues 
 
            that defendants cannot urge a lowering of the deputy's award 
 
            of 20 percent industrial disability without filing a 
 
            cross-appeal.  Claimant's assertion is incorrect.  An appeal 
 
            to the industrial commissioner is de novo.  The decision of 
 
            the deputy, once an appeal is taken, cannot be reinstated.  
 
            Tussing v. Hormel & Co., 481 N.W.2d 450 (Iowa 1990).  The 
 
            extent of claimant's industrial disability is listed by 
 
            claimant as an issue on appeal, and the industrial 
 
            commissioner can raise, lower, or maintain the deputy's 
 
            award of industrial disability.  Defendants are free to urge 
 
            a lower award of industrial disability on appeal.
 
            
 
                 However, defendants' brief also appears to address the 
 
            issue of the date when claimant's permanent disability 
 
            begins.  Although appeals from the decision of a deputy 
 
            industrial commissioner are considered de novo, review on 
 
            appeal is limited to those issues properly raised on appeal 
 
            by an appealing party.  A party cannot raise an issue on 
 
            appeal without filing an appeal or a cross-appeal under rule 
 
            343 IAC 4.27.  Allowing an appellee to raise an appeal issue 
 
            simply by discussing the issue in the appeal brief would 
 
            deny the appellant the opportunity to properly present a 
 
            brief and argument on the issue.  Although rule 343 IAC 
 
            4.27(1) contemplates a reply brief by appellant, a reply 
 
            brief is normally utilized to give appellant an opportunity 
 
            to respond to appellee's arguments responding to issues 
 
            properly preserved on appeal.  It is not the purpose of a 
 
            reply brief to respond to new issues raised in appellee's 
 
            brief.  This issue is not listed by claimant, and defendants 
 
            have not filed a cross-appeal.  The issue has not been 
 
            preserved and the commencement date for permanent disability 
 
            benefits will not be addressed on appeal.
 
            
 
                 Claimant has a permanent impairment of his back.  
 
            Claimant has two ratings of permanent impairment.  D.M. Tan 
 
            Creti, M.D., claimant's treating physician, rated claimant 
 
            as having a 21 percent permanent impairment of the body as a 
 
            whole.  Lonnie Mercier, M.D., rated claimant as having a 
 
            five percent permanent impairment of the body as a whole.  
 
            Dr. Mercier's examination of claimant was later in time, but 
 
            only by one month.  Dr. Mercier is an orthopedic specialist, 
 
            while Dr. Tan Creti is a general practitioner.  Dr. Tan 
 
            Creti's examination of claimant was based on the results of 
 
            various tests performed on claimant. 
 
            
 
                 In addition, it is noted that impairment is only one 
 
            factor in industrial disability.  Claimant is 33 years old, 
 
            and has an eighth grade education.  Claimant's lack of 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            formal education is a disadvantage to him in the job market.  
 
            However, claimant is young enough to seek retraining.  
 
            Claimant's work experience is limited to manual labor.  
 
            Claimant cannot return to his work in the meat packing 
 
            industry.  
 
            
 
                 Claimant's vocational rehabilitation tests show that he 
 
            would have difficulty in obtaining employment in any 
 
            occupation requiring a full eight hour shift.  Claimant also 
 
            has significant medical restrictions that would negatively 
 
            impact on his ability to perform manual labor.  After 
 
            returning to work for a short time, claimant is presently 
 
            unemployed.  Claimant was found to be able to perform jobs 
 
            that would earn him in the range of $3.35 to $5.00 per hour.  
 
            Claimant was earning in excess of $9.00 per hour at the time 
 
            of his injury.  Claimant has suffered a significant loss of 
 
            earnings as a result of his work injury.  
 
            
 
                 The testimony of James Rogers indicates that claimant 
 
            has an overall rating of average intellectual capacity, and 
 
            that claimant could obtain a GED.  Claimant was found to 
 
            have aptitude for 9 out of 66 occupational aptitude 
 
            patterns.  Rogers' evaluation, however, was limited to one 
 
            interview with claimant and did not involve a market survey.  
 
            Rogers did state that some of the jobs claimant had an 
 
            aptitude for were not available in claimant's home area of 
 
            Denison, Iowa.
 
            
 
                 Claimant does have a skill unrelated to his work 
 
            experience.  Claimant has established a woodworking business 
 
            in his home.  This business has not shown a profit to date, 
 
            although claimant apparently has a steady supply of 
 
            customers and has recently expanded his business' physical 
 
            facility.  Defendants argue that claimant's business has not 
 
            shown a profit because claimant has re-invested all profits 
 
            into expanding the business.
 
            
 
                 The profitability or non-profitability of claimant's 
 
            business is not directly relevant.  Predictions of 
 
            claimant's income from his business would be speculative.  
 
            Claimant's ability to perform wood working services for an 
 
            employer, rather than in a self-employed capacity, is 
 
            relevant to the extent a market for those services exists.  
 
            Claimant's wood working skills and abilities are marketable 
 
            skills claimant can offer to an employer.  However, the 
 
            record does not show that such jobs are presently available.  
 
            Claimant's demonstrated willingness to establish this 
 
            business, rather than remain idle, does indicate positive 
 
            motivation on claimant's part.
 
            
 
                 Based on these and all other appropriate factors for 
 
            determining industrial disability, claimant is determined to 
 
            have an industrial disability of 20 percent. 
 
            
 
                 Finally, even if it is determined on further appeal 
 
            that it was improper to admit the testimony of James Rogers, 
 
            it is hereby found that even without the evidence of Rogers' 
 
            testimony in the record, claimant's industrial disability is 
 
            20 percent.  The testimony of Rogers, although corroborating 
 
            and to a certain extent expanding upon his written report, 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            the admissibility of which is not disputed, does not 
 
            materially alter the record and does not materially affect 
 
            the determination of claimant's industrial disability.  If 
 
            it is error to admit this testimony, the error is harmless 
 
            in that the result remains the same.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 1.  Claimant was injured on November 18, 1986 when, 
 
            while working for defendant employer unloading 50 pound bags 
 
            of sawdust, he hurt his low back.
 
            
 
                 2.  As a result of his November 18, 1986 injury, 
 
            claimant incurred a healing period from and including 
 
            November 19, 1986 to and including February 16, 1987 and 
 
            again beginning and including April 7, 1987 to and including 
 
            October 26, 1987.
 
            
 
                 3.  As a result of his November 18, 1986 injury, 
 
            claimant has ratings of five percent and 21 percent 
 
            permanent impairment to his body as a whole.
 
            
 
                 4.  Claimant has restrictions resulting from his work 
 
            injury on November 18, 1986 of 15 pounds occasional lifting, 
 
            no repeated lifting or bending tasks more often than five 
 
            minutes, and not to remain with a confined posture for more 
 
            than 15 minutes without a break to exercise.
 
            
 
                 5.  Claimant has a 20 percent loss of earning capacity 
 
            as a result of the work injury of November 18, 1986.
 
            
 
                 6.  Claimant incurred gastrointestinal problems which 
 
            were not the result of his injury of November 18, 1986 and 
 
            have not resulted in any impairment.
 
            
 
                 7.  Claimant reached maximum recovery on October 27, 
 
            1987.
 
            
 
                 8.  Claimant has incurred medical expenses involving 
 
            his work-related injury for treatment of his back which 
 
            should be paid by defendants.
 
            
 
                 9.  The weekly rate of compensation is $265.02.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The testimony of James Rogers was admissible.
 
            
 
                 Claimant sustained an injury which arose out of and in 
 
            the course of his employment on November 18, 1986.
 
            
 
                 Claimant's injury on November 18, 1986 is causally 
 
            connected to his disability.
 
            
 
                 Claimant has sustained an industrial disability of 20 
 
            percent.
 
            
 
                 Claimant reached maximum recovery on October 27, 1987.
 
            
 
                 Claimant incurred a healing period beginning and 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            including November 19, 1986 to and including February 16, 
 
            1987 and a second healing period of April 7, 1987, 
 
            inclusive, to and including October 26, 1987.
 
            
 
                 Claimant has incurred medical expenses for his back 
 
            which are causally connected to his work injury of November 
 
            18, 1986 and were necessary and reasonable.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed in 
 
            part and reversed in part.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay unto claimant one hundred 
 
            (100) weeks of permanent partial disability at the 
 
            stipulated rate of two hundred sixty-five and 02/100 dollars 
 
            ($265.02) commencing October 27, 1987.  
 
            
 
                 That defendants are to pay unto claimant twelve and 
 
            six-sevenths (12 6/7) weeks of healing period benefits for 
 
            the period of and including November 19, 1986 to and 
 
            including February 16, 1987, and twenty-nine (29) weeks for 
 
            a second healing period from and including April 7, 1987 to 
 
            and including October 26, 1987, both totaling forty-one and 
 
            six-sevenths (41 6/7) weeks at the weekly rate of two 
 
            hundred sixty-five and 02/100 dollars ($265.02).  
 
            
 
                 That defendants shall pay the Crawford County Memorial 
 
            Hospital bill of one hundred sixty dollars ($160.00) and the 
 
            Denison Chiropractic Clinic bill of one thousand three 
 
            hundred fifty-three and 38/100 dollars ($1,353.38), either 
 
            directly to the provider or if already paid by claimant then 
 
            to reimburse claimant.
 
            
 
                 That defendants are to be given credit for benefits 
 
            previously paid.  Defendants shall not receive credit for 
 
            temporary total disability benefits previously paid except 
 
            as a credit for defendants' obligation to pay temporary 
 
            total disability benefits.
 
            
 
                 That defendants shall pay the accrued weekly benefits 
 
            in a lump sum.
 
            
 
                 That defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action 
 
            including the cost of the transcription of the hearing 
 
            proceeding.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of March, 1991.
 
            
 
            
 
            
 
                                          
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            ________________________________
 
                                                   CLAIR R. CRAMER
 
                                           ACTING INDUSTRIAL 
 
            COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. R. J. Tilton
 
            Attorney at Law
 
            1312 First Ave. S
 
            Denison, Iowa 51442
 
            
 
            Ms. Judith Ann Higgs
 
            Attorney at Law
 
            200 Home Federal Bldg.
 
            P.O. Box 3086
 
            Sioux City, Iowa 51102