BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RUSSELL WULF,
 
         
 
              Claimant,
 
                                         File No. 840256
 
         VS.
 
                                         A R B I T R A T I 0 N
 
         
 
         FARMLAND INDUSTRIES,
 
                                           D E C I S I 0 N
 
              Employer,
 
           
 
          and
 
         
 
          AETNA CASUALTY & SURETY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Russell Wulf, 
 
         claimant, against Farmland Industries, employer (hereinafter 
 
         referred to as Farmland), and Aetna Casualty & Surety Company, 
 
         insurance carrier, defendants, for workers' compensation benefits 
 
         as a result of an alleged injury on December 8, 1986.  On 
 
         December 14, 1988, a hearing was held on claimant's petition and 
 
         the matter was considered fully submitted at the close of this 
 
         hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony and written evidence was received during the hearing.
 
         
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
         
 
              1. On December 8, 1986, claimant received an injury which 
 
         arose out of and in the course of employment with Farmland.
 
         
 
              2. Claimant is seeking temporary total disability or healing 
 
         period benefits from December 8, 1986 through May 27, 1988, and 
 
         defendants agree that claimant was not working during this time 
 
         period.
 
         
 
         
 
         
 
         WULF V. FARMLAND INDUSTRIES
 
         Page 2
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              3. That the injury is found to have caused permanent 
 
         disability, the type of disability is an industrial disability to 
 
         the body as a whole.
 
         
 
              4. Claimant's rate of weekly compensation in the event of an 
 
         award of weekly benefits from this proceeding shall be $507.17.
 
         
 
              5. The medical bills submitted by claimant at hearing are 
 
         fair and reasonable and causally connected to the medical 
 
         conditions upon which the claim herein is based but that the 
 
         issue of their causal connection to a work injury and their 
 
         necessity remain disputed.
 
         
 
              6. The claimant was paid 103 6/7 weeks of weekly 
 
         compensation at the above stipulated rate prior to hearing.
 
         
 
              Upon inquiry by the undersigned at the close of the hearing 
 
         as to whether credibility was at issue, the parties agreed that 
 
         it was not and the parties stipulated that claimant testified 
 
         truthfully.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
              I. Whether there is a causal relationship between the work 
 
         injury and the claimed disability;
 
         
 
              II. The extent of claimant's entitlement to weekly benefits 
 
         for disability; and,
 
         
 
              III. The extent of claimant's entitlement to medical 
 
         benefits.
 
         
 
                                STATEMENT OF FACTS
 
         
 
              The following is a brief statement highlighting some of the 
 
         more pertinent evidence presented.  Whether or not specifically 
 
         referred to in this statement, all of the evidence received at 
 
         the hearing was independently reviewed and considered in arriving 
 
         at this decision.  Any conclusions about the evidence received 
 
         contained in the following statement should be viewed as 
 
         preliminary findings of fact.
 
         
 
              Claimant is a 35-year-old high school graduate.  Claimant 
 
         testified that he worked for Farmland continuously for 16 years 
 
         from 1972 until his termination in January 1988.  Claimant was 
 
         initially assigned to packinghouse work and drove his own semi 
 
         truck on weekends to earn extra money.  In 1983, at the request
 
         
 
         
 
         
 
         WULF V. FARMLAND INDUSTRIES 
 
         Page 3
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         of Farmland, claimant ended his own trucking operation and began 
 
         driving over-the-road for Farmland.  Claimant testified that his 
 
         income drastically increased at that time.  Claimant was earning 
 
         in excess of $900 a week at the time of the alleged work injury.  
 
         Claimant's work record at Farmland was excellent.  In the year 
 
         before his work injury he was honored at Farmland as driver of 
 
         the year and received a plaque as an award.  Claimant testified 
 
         that he was terminated by Farmland in January 1988 because he was 
 
         medically unable to return to work as a truck driver.  Claimant 
 
         said that prior to his termination he was promised a job within 
 
         his restrictions by Farmland Management on several occasions 
 
         while recovering from his injury but no job was offered.  
 
         Claimant said that at one time he helped Farmland management 
 
         "bust" the union at Farmland during his healing period.  Claimant 
 
         expressed bitterness at the hearing that his reward for such 
 
         efforts was termination.
 
         
 
              The facts surrounding the work injury are not in dispute.  
 
         Claimant testified that on December 8, 1986, while unloading a 
 
         truck, he slipped and fell onto the floor of a trailer.  Claimant 
 
         said that he felt immediate severe pain in his lower back at the 
 
         belt line radiating into his buttocks and legs.  Claimant said 
 
         that he then paid a "lumper" to unload his truck and he attempted 
 
         to sleep.  However, claimant said that sleep was impossible due 
 
         to the pain.  He said that he then terminated his road trip and 
 
         returned home.  Upon returning home he sought medical treatment 
 
         from his family doctor, J. Hennessey, M.D.  Dr. Hennessey 
 
         admitted claimant to the hospital for "acute sacroiliac strain 
 
         and lumbosacral distress."  In the hospital records, Dr. 
 
         Hennessey wrote that claimant has "some injury to the back in the 
 
         past, a lot of chiropractic treatment because of back but never 
 
         seems to clear."  Claimant remained in the hospital for a few 
 
         weeks and at home a few more weeks to recover from his injury.  
 
         Claimant also was treated for a short time by a chiropractor.
 
         
 
              Claimant subsequently improved and Dr. Hennessey released 
 
         claimant to return to truck driving.  However, after two trips, 
 
         he experienced a recurrence of his low back pain and claimant 
 
         began treating with William Boulden, M.D., an orthopedic surgeon. 
 
         on January 29, 1987, Dr. Boulden felt that claimant had 
 
         degenerative disc disease and performed further testing.  Dr. 
 
         Boulden stated that he found no herniated disc but there was a 
 
         bulging disc at the midline.  According to Dr. Boulden, his 
 
         testing confirmed the presence of degenerative disc disease at 
 
         L4-5 and at the L5-Sl levels of claimant's spine. on February 12, 
 
         1987, Dr. Boulden felt that claimant should have "a true job 
 
         change" and imposed work restrictions consisting of no repetitive 
 
         bending, stooping, lifting or twisting and no prolonged sitting 
 
         including no truck driving.  Other than a change of job 
 
         recommendation, Dr. Boulden prescribed no treatment modalities.
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         WULF V. FARMLAND INDUSTRIES
 
         Page 4
 
         
 
         
 
              Claimant stated that after his release to light duty by Dr. 
 
         Boulden, he then asked Farmland for any type of work and 
 
         expressed a willingness to take a pay cut.  However, Farmland, 
 
         offered nothing and claimant remained off work for the next 
 
         several months.  What treatment he received during this time is 
 
         unclear in the record.  Claimant was evaluated on June 16, 1987, 
 
         by Charles Taylon, M.D., a neurosurgeon, from the Creighton 
 
         University School of Medicine.  Dr. Taylon opined that claimant 
 
         had only mechanical low back pain which was musculoligamentous in 
 
         origin along with contribution from degenerative arthritis.  He 
 
         opined that as a result of the work injury, claimant suffered a 5 
 
         percent permanent partial disability and he stated that 
 
         claimant's condition had stabilized.  He did not state when 
 
         claimant's condition might have stabilized earlier.  In August 
 
         1987 claimant returned to Dr. Boulden for a disability 
 
         evaluation.  Dr. Boulden opined that claimant had a 5 percent 
 
         permanent partial impairment to the whole body as a result of 
 
         degenerative disc disease and felt that the restrictions imposed 
 
         in February 1987 remained unchanged.  In October 1987, claimant 
 
         returned to Dr. Taylon who performed a myelogram test of 
 
         claimant's spine.  According to Dr. Taylon the test results did 
 
         not change his earlier opinions concerning the origin of 
 
         claimant's back problems.  Claimant adversely reacted to the 
 
         myelogram test requiring his admission to the hospital for a few 
 
         days.
 
         
 
              In his report of January 1987 Dr. Boulden states that 
 
         claimant has a history of chronic low back pain in the past with 
 
         treatment by a chiropractor.  R. H. Dreyer, D.C., states in a 
 
         letter report of November 22, 1987, that he has treated claimant 
 
         for episodic musculoskeletal complaints since June 1980.  Dr. 
 
         Dreyer further stated that until December 1986, claimant 
 
         responded well to spinal manipulation and remained functional.  
 
         However, the doctor emphasized that since the 1986 accident, 
 
         success of conservative treatment could only be described as 
 
         marginal.  Unfortunately, Dr. Dreyer did not specify what portion 
 
         of the claimant's spine he had been treating.  Claimant testified 
 
         that he indeed received chiropractic care for 16 years but only 
 
         for aches and pains involving mostly his ribs, shoulder and neck.  
 
         Claimant testified that he never had trouble with his lower back 
 
         before the 1986 injury.
 
         
 
              Claimant testified that he had an adverse psychological 
 
         reaction to the notice of termination by Farmland in January 
 
         1988.  Claimant states that he had been lead to believe on 
 
         several occasions by Farmland that he had a job with them.  After 
 
         the termination, claimant said that he became very depressed and 
 
         was referred by his family doctor to Michael Egger, M.D., a 
 
         psychiatrist.  Dr. Egger diagnosed that claimant suffered from a 
 
         major depressive disorder as a result of the 1986 back injury and 
 
         resulting incapacitation, financial difficulties
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         WULF V. FARMLAND INDUSTRIES 
 
         Page 5
 
         
 
         
 
         and vocational rehabilitation problems.  Due to the magnitude of 
 
         claimant's problems and claimant's thoughts of self harm, Dr. 
 
         Egger hospitalized claimant for psychological therapy for almost 
 
         three weeks.  The three diagnoses upon claimant's admission and 
 
         subsequent discharge from the hospital were major depressive 
 
         disorders, chronic pain syndrome and degenerative disc disease.  
 
         Claimant has been treated since that time by Dr. Egger who has 
 
         given a guarded prognosis.  Such treatment consisted of therapy 
 
         sessions and use of anti-depressant medication.
 
         
 
              In May 1988, Dr. Egger reported that although he had 
 
         previously felt that claimant had no functional impairment from 
 
         his psychological problems, claimant had taken a turn for the 
 
         worse and claimant would have a 10 to 15 percent impairment 
 
         unless he improves and satisfactory rehabilitation takes place.  
 
         Another psychiatrist, Michael Taylor, M.D., has evaluated 
 
         claimant.  In his report of August 22, 1988, Dr. Taylor stated 
 
         that he likewise diagnosed major depressive disorder and that 
 
         with treatment claimant should have no permanent functional 
 
         limitations from his depression.  He also believes that treatment 
 
         of claimant's psychological condition along with physical therapy 
 
         and a work hardening program would diminish claimant's back 
 
         symptoms.  However, Dr. Taylor states that claimant has not been 
 
         receiving sufficient treatment for his mental problems.
 
         
 
              Claimant testified that he has not returned to work.  He 
 
         states that he has applied for several jobs other than at 
 
         Farmland but has not received any job offers.  He submitted a 
 
         list of places which have received his applications.  Claimant 
 
         continues to take anti-depressant medication and to see Dr. Egger 
 
         once a month.  He has received weekly compensation benefits since 
 
         the injury.
 
         
 
              Claimant testified that his past employment consists of 
 
         unskilled packinghouse work and truck driving.  Two vocational 
 
         rehabilitation counselor groups have evaluated claimant's 
 
         vocational situation in the fall of 1987.  Both of these 
 
         consultants opine that claimant is employable in that there are a 
 
         number of employment opportunities compatible with his 
 
         demonstrated interests, physical capabilities and aptitudes.  
 
         However, they note that none of these jobs for which he is 
 
         currently employable has a salary level comparable with the 
 
         income he had at the time of the 1986 injury.
 
         
 
              Claimant's appearance and demeanor at hearing indicated that 
 
         he was testifying truthfully.  Claimant would have been found 
 
         credible had there been no stipulation by the parties with 
 
         reference to credibility.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         WULF V. FARMLAND INDUSTRIES
 
         Page 6
 
         
 
         
 
         
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
         
 
              I. The claimant has the burden of proving by a preponderance 
 
         of the evidence that the work injury is a cause of the claimed 
 
         disability.  A disability may be either temporary or permanent.  
 
         In the case of a claim for temporary disability, the claimant 
 
         must establish that the work injury was a cause of absence from 
 
         work and lost earnings during a period of recovery from the 
 
         injury.  Generally, a claim of permanent disability invokes an 
 
         initial determination of whether the work injury was a cause of 
 
         permanent physical impairment or permanent limitation in work 
 
         activity.  However, in some instances, such as a job transfer 
 
         caused by a work injury, permanent disability benefits can be 
 
         awarded without a showing of a causal connection to a physical 
 
         change of condition.  Blacksmith v. All-American, Inc., 290 
 
         N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 288 
 
         N.W.2d 181 (Iowa 1980).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient along to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Asse 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).  
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         WULF V. FARMLAND INDUSTRIES
 
         Page 7
 
         
 
         
 
              In the case sub judice, claimant contends that he has 
 
         suffered permanent disability as a result of the work injury due 
 
         to permanent impairment to the body as a whole.  First, the 
 
         evidence is clear that claimant has a 5 percent permanent partial 
 
         impairment to the body as a whole.  Both Dr. Boulden and Dr. 
 
         Taylon agree with this rating.  With reference to the causal 
 
         connection of this impairment to a work injury, defendants argue 
 
         that the source of the impairment is a.degenerative condition 
 
         which is not work related.  It is true that Dr. Boulden did 
 
         diagnose degenerative disc disease but this diagnosis alone does 
 
         not preclude compensability.  Such a condition can be 
 
         asymptomatic until it is lighted up by a work injury.  Dr. 
 
         Boulden simply did not opine one way or another with reference to 
 
         the causal connection issue.  Dr. Taylon likewise was rather 
 
         vague as to his views but did specifically opine that claimant 
 
         had suffered a 5 percent permanent partial impairment as a result 
 
         of the work injury.  Dr. Boulden referred to prior chiropractic 
 
         care of chronic low back pain but claimant denies this and states 
 
         that his chiropractic care was limited to other parts of the 
 
         body.  It was stipulated that claimant was truthful.  Therefore, 
 
         given claimant's testimony, the preponderance of the evidence 
 
         supports a causal connection between the work injury and 
 
         permanent partial impairment to the body as a whole due to the 
 
         low back pain syndrome despite a diagnosis of degenerative disc 
 
         disease.
 
         
 
              With reference to the causal connection of claimant's 
 
         emotional problems, the only two psychiatrists to render an 
 
         opinion both state that the major depressive disorder is the 
 
         result of the work injury and subsequent impairment.  Obviously, 
 
         claimant has shown the requisite causal connection to render 
 
         compensable the emotional problems he is having.
 
         
 
              II. With reference to permanent partial disability, it is 
 
         more likely than not that claimant has suffered a significant 
 
         permanent partial disability or loss of earning capacity as a 
 
         result of the work injury due to an inability to return to heavy 
 
         work or to truck driving.  However, the extent of this permanent 
 
         partial disability cannot be determined at this time and a 
 
         "running award" of healing period benefits will be ordered in 
 
         this case.  Such an award is very unusual for the undersigned as 
 
         he recalls only two incidents over the last five years that he 
 
         has given a running award.  However, in this case, the facts 
 
         leave the undersigned no choice.  Claimant is entitled to weekly 
 
         benefits for healing period under Iowa Code section 85.34(l) from 
 
         the date of injury until claimant returns to work; until claimant 
 
         is medically capable of returning to substantially similar work 
 
         to the work he is performing at the time of the injury; or, until 
 
         it is indicated that significant improvement from the injury is 
 
         no longer anticipated, whichever occurs first.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         WULF V. FARMLAND INDUSTRIES
 
         Page 8
 
         
 
         
 
              In the case sub judice, there can be no dispute that 
 
         claimant has not returned to work and will never be able to 
 
         return to substantially similar work to the work he was 
 
         performing at the time of the injury.  Admittedly, claimant 
 
         reached maximum healing from his back condition as early as June 
 
         16, 1987, when Dr. Taylon gave claimant a permanency rating.  
 
         However, on January 21, 1988, the injury extended into claimant's 
 
         mind and claimant began another period of healing.  According to 
 
         Dr. Egger's last report, claimant is still undergoing treatment 
 
         and if claimant did not improve, he would indeed suffer 
 
         functional impairment.  Dr. Taylor opines that claimant still has 
 
         not received sufficient treatment of his mental condition.  
 
         Consequently, it is clear that the evidence shows significant 
 
         improvement from the injury is still being anticipated by his 
 
         physicians.
 
         
 
              Therefore, claimant is entitled to healing period benefits 
 
         until such time as maximum healing of his major depressive 
 
         disorder is achieved or claimant returns to work, whichever 
 
         occurs first.  It is well settled that a healing period may 
 
         terminate and then begin again.  Lawyer & Higgs, Iowa Workers' 
 
         Compensation -- Law and Practice, section 13-3 (1988 supplement); 
 
         Willis v. Lehigh Portland Cement Co., I-2 Iowa Industrial 
 
         Commissioner Decisions 485 (1984); Riesselman v. Carrol Health 
 
         Center, III Iowa Industrial Commissioner Report 209 (Appeal 
 
         Decision 1982); Clemens v. Iowa Veterans Home, I-1 Iowa 
 
         Industrial Commissioner Decisions 35 (1984).
 
         
 
              III. Pursuant to Iowa Code section 85.27, claimant is 
 
         entitled to payment of reasonable medical expenses incurred for 
 
         treatment of a work injury.  However, claimant is entitled to an 
 
         order of reimbursement only if claimant has paid those expenses. 
 
         otherwise, claimant is entitled to only an order directing the 
 
         responsible defendants to make such payments.  See Krohn v. State
 
         , 420 N.W.2d 463 (Iowa 1988).
 
         
 
              It was stipulated that the requested expenses in the 
 
         prehearing report were causally connected to the conditions for 
 
         which the claim is based.  As these conditions are found work 
 
         related, a finding will be made that the expenses are work 
 
         related.  Therefore, the expenses which total $2,271.90 will be 
 
         awarded to claimant.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1. The work injury of December 8, 1986, was a cause of a 
 
         period of disability from work beginning on December 8, 1986 
 
         through June 16, 1987 and for a second period of disability 
 
         beginning on January 21, 1988 and this period of disability 
 
         continues to the present time.  After claimant's back condition 
 
         had stabilized, he was terminated from his employment relation-
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         WULF V. FARMLAND INDUSTRIES 
 
         Page 9
 
         
 
         
 
         ship with Farmland as a result of his work injury and resulting 
 
         disability.  This termination precipitated a major depressive 
 
         disorder, reactive type, for which claimant is still undergoing 
 
         treatment.  Claimant has not returned to work' and will never be 
 
         able to return to work substantially similar to the work he was 
 
         performing at the time of the injury, namely truck driving.  At 
 
         the time of hearing, improvement in claimant's mental depression 
 
         condition from medical treatment is anticipated.
 
         
 
              2. The work injury of December 8, 1986, is a cause of a 5 
 
         percent permanent partial impairment to the body as a whole and 
 
         of permanent restrictions upon claimant's physical activity 
 
         consisting of no repetitive lifting, bending, stooping or 
 
         twisting and no prolonged sitting, including the driving of a 
 
         truck.  The extent of functional impairment, if any, caused by 
 
         his mental depression is unknown at this time.,'
 
         
 
              3. The work injury of December 8, 1986 and the resulting 
 
         permanent partial impairment and work restrictions is a cause of 
 
         a significant loss of earning capacity, the extent of which is 
 
         currently unknown until claimant reaches maximum healing from his 
 
         major depressive disorder.  Claimant is precluded from truck 
 
         driving in which he earned an excess of $900 per week.  Claimant 
 
         is precluded from all heavy manual labor work, the work for which 
 
         he is best suited given his work history and education.
 
         
 
              4. The medical expenses listed in the prehearing report are 
 
         fair and reasonable and were incurred by claimant for reasonable 
 
         and necessary treatment of his work injury on December 8, 1986 
 
         and causally connected conditions, namely chronic pain syndrome 
 
         and major depressive disorder.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Claimant has established under law entitlement to a running 
 
         award of healing period benefits and medical expenses awarded 
 
         below.
 
         
 
                                      ORDER
 
         
 
              1. Defendants shall pay to claimant healing period benefits 
 
         from December 8, 1986 through June 16, 1987 and from January 21, 
 
         1988 and continuing at the rate of five hundred seven and 17/100 
 
         dollars ($507.17) per week until claimant returns to work or 
 
         until significant improvement from the injury is no longer 
 
         anticipated, whichever occurs first.
 
         
 
              2. Defendants shall pay claimant the medical expenses listed 
 
         in the prehearing report.  Claimant shall be reimbursed if he has 
 
         paid those expenses. otherwise, defendants shall
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         WULF V. FARMLAND INDUSTRIES 
 
         Page 10
 
         
 
         
 
         pay the providers directly along with the providers' customary 
 
         and legal late charges subject to any attorney lien claimant's 
 
         attorney may have against this award.
 
         
 
              3. Defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for all weekly 
 
         benefits previously paid.
 
         
 
              4. Defendants shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              5. Defendants shall pay the costs of this action pursuant to 
 
         Division of Industrial Services 343-4.33.
 
         
 
              6.Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              7. This matter shall be set back into assignment for 
 
         prehearing and hearing on the extent of permanent disability 
 
         benefits to which claimant is entitled when the parties certify 
 
         that the matter is ready for trial.
 
         
 
              Signed and filed this 24th day of August, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         LARRY P.WALSHIRE
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Sheldon M. Gallner
 
         Attorney at Law
 
         803 3rd Ave.
 
         P. 0. Box 1588
 
         Council Bluffs, Iowa  50502
 
         
 
         Ms. Judith Ann Higgs
 
         Attorney at Law
 
         200 Home Federal Bldg.
 
         P. 0. Box 3086
 
         Sioux City, Iowa 51102
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1802
 
                                         Filed August 24, 1989 
 
                                         LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RUSSELL WULF,
 
         
 
              Claimant,
 
                                         File No. 840256
 
         VS.
 
                                         A R B I T R A T I 0 N
 
         FARMLAND INDUSTRIES,
 
                                         D E C I S I 0 N 
 
              Employer,
 
         
 
         and
 
         
 
         AETNA CASUALTY & SURETY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1802 - Healing period (running award)
 
         
 
              A running award was given.  Although maximum healing for a 
 
         back condition was achieved, claimant developed a major 
 
         depressive disorder as a result of the work injury for which 
 
         improvement from treatment is still anticipated.  Also it is 
 
         found that claimant had significant loss of earning capacity and 
 
         permanent partial disability, however, the extent of this 
 
         permanent partial disability could not be determined until he 
 
         reached maximum healing.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JEFFREY H. PUCK,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 840352
 
            SEITEHR & CHERRY COMPANY and  :
 
            VOGT AND CONANT SOUTHWEST     :
 
            COMPANY,                      :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This case came on for hearing on July 18, 1991, in 
 
            Davenport, Iowa.  This is a proceeding in arbitration 
 
            wherein claimant seeks compensation for permanent partial 
 
            disability benefits as a result of an alleged injury 
 
            occurring on December 10, 1986.  The record in the 
 
            proceeding consists of the testimony of claimant and 
 
            claimant's wife; claimant's exhibits 1 through 5; and 
 
            claimant's exhibits A through H.
 
            
 
                                      issues
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  The extent of claimant's permanent disability;
 
            
 
                 2.  Claimant's entitlement to 85.27 medical benefits, 
 
            the issues being causal connection as to claimant's exhibits 
 
            2, 3, 4 and 5 and authorization only as to claimant's 
 
            exhibit 5, the bill of Dr. Malley of $580.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 42-year-old high school graduate who 
 
            attended college and obtained a degree in sociology in 1987.  
 
            Claimant also obtained an associate degree in art and had 
 
            apprentice training as an ironworker and has two 
 
            certificates from a community college in circuitry and 
 
            motorcycle maintenance.  Claimant indicated none of his 
 
            post-high school formal education except for his ironworker 
 
            training qualifies him as a professional in any particular 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            field.
 
            
 
                 Claimant related his work history prior to 1974 when he 
 
            began his ironwork pre-apprenticeship.  After approximately 
 
            three years, claimant became a journeyman.  He described the 
 
            nature of his work which involved walking beams, lifting 
 
            heavy pieces of iron and hanging iron, etc.  Claimant said 
 
            he never had back or neck problems prior to December 10, 
 
            1986, and was in good physical shape.
 
            
 
                 Claimant explained the nature of his December 10, 1986 
 
            injury when he fell 15 to 17 feet off the beam on which he 
 
            was working onto the frozen ground.  He explained how and 
 
            the reason for his falling and also the injury to his neck, 
 
            wrist and the medical treatment he received.
 
            
 
                 Claimant returned to work on July 8, 1987, but said he 
 
            started getting spasms and pain in his shoulder.  He 
 
            indicated he was laid off after two days as he was not 
 
            keeping up with the other people.  Claimant's testimony is 
 
            confusing in certain parts but it appears he worked July 8, 
 
            1987 to October 1987, at Iowa-Illinois Gas & Electric 
 
            Company as a seasonal warehouseman making $5.00 per hour.  
 
            Claimant quit this job as he indicated he could not live on 
 
            the small amount of income.  As an ironworker, claimant was 
 
            last making $16.48 per hour.
 
            
 
                 In October 1987, claimant started his own business 
 
            involving residential garage overhead doors and openers 
 
            which he is still doing today.  He explained this business 
 
            and what he has to do.  He said his work bothers his wrist 
 
            and back.  Claimant related a prior right wrist injury in 
 
            1979 when he fell on the cement which resulted in a 6 
 
            percent permanent partial impairment to his right wrist.
 
            
 
                 Claimant said his neck currently hurts and he has 
 
            spasms and pain if he turns it.  He said he currently has 
 
            pain, muscle tingling in his back and shoulder stiffness.  
 
            He related what he can and cannot do now versus his 
 
            condition before December 10, 1986.  Claimant elaborated on 
 
            what he does, can't do and his limitations in his overhead 
 
            door business due to his December 1986 injury.  He contends 
 
            he was at the top of his trade as an ironworker prior to 
 
            December 10, 1986.
 
            
 
                 Claimant discussed his income in 1979.  He said 1980 
 
            was his best year in his overhead door business but he now 
 
            has lost the Sears account because he cannot keep up with 
 
            the work that they refer to him.  Claimant has concluded he 
 
            picked the wrong business due to his back as his overhead 
 
            door business is too physically demanding.  Claimant 
 
            acknowledged he withdrew from the union on August 31, 1988 
 
            because of his physical problems and the total work 
 
            situation in the area (Joint Exhibit H, page 23).  Claimant 
 
            acknowledged he has had prostrate problems resulting in low 
 
            back pain in February 1977, February 1982, and November 
 
            1982.  He also injured his wrist, as indicated earlier, and 
 
            incurred a prior compensable 6 percent impairment to his 
 
            right wrist.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Claimant was asked about Joint Exhibit D, page 32, as 
 
            to the rehabilitation center recommendation of the work 
 
            fitness team that claimant return to ironwork.  That there 
 
            is no need for a work hardening program and that claimant is 
 
            capable of returning to work.  Claimant's medical records 
 
            with Dr. M. L. Skoglund beginning December 15, 1986 show 
 
            claimant's complaints and treatment involved the cervical 
 
            and thoracic spine and right wrist (Jt. Ex. C, pp. 1-6).  As 
 
            of the April 12, 1988 appointment, claimant was being 
 
            checked in the cervical area and his wrist.  Nothing was 
 
            mentioned as to the low back.  On May 2, 1988, claimant went 
 
            to the doctor and indicated he had taken out a deck helping 
 
            some people approximately two weeks prior and developed a 
 
            catch in the low back and into the right leg.  X-rays showed 
 
            degenerative disc disease of the lumbar spine and cervical 
 
            spine.  The doctor wrote that claimant did have at that time 
 
            a 50 percent abnormal limitation of motion of the cervical 
 
            spine (Jt. Ex. C, p. 6).  Claimant agreed no doctor 
 
            recommended surgery.  Claimant indicated that his 
 
            chiropractic treatments with Dr. Malley gave him temporary 
 
            relief.
 
            
 
                 Mary Rosanne Puck, claimant's wife of eleven years, 
 
            said claimant's pre-December 10, 1986 physical condition was 
 
            good and claimant had a build like any male would want to 
 
            have.  She described the many activities he would do that he 
 
            can no longer do.  She said he is very motivated but the 
 
            overhead door business isn't paying the bills.  She said 
 
            claimant's prior wrist problem was all healed by December 
 
            10, 1986 and he was working and having no problems with his 
 
            right wrist.
 
            
 
                 Claimant's medical records on December 10, 1986 show 
 
            his emergency admission with a diagnosis of contusions and 
 
            sprains of the cervical spine and right wrist and possible 
 
            carpal tunnel syndrome (Jt. Ex. A, p. 12).  There was no 
 
            evidence of a fracture of the spine or recent fracture of 
 
            the wrist.  Upon a recheck on December 15, 1986, x-rays 
 
            suggested right wrist fracture (Jt. Ex. C, p. 1).  Claimant 
 
            still had his back problems.
 
            
 
                 Dr. Skoglund's records on July 10, 1987, from the 
 
            Moline Orthopedic Association Clinic, reflect that claimant 
 
            improved to 85 percent of normal motion of the right lateral 
 
            rotation of the neck and the right wrist.  Current 
 
            restriction was secondary to claimant's previous injury with 
 
            osteoarthritis (Jt. Ex. C, p. 4).  On August 11, 1987, Dr. 
 
            Skoglund's records show claimant is working for Iowa-
 
            Illinois and doing well with an occasional stiff neck which 
 
            isn't a major problem (Jt. Ex. C, p. 4).  Claimant's records 
 
            continue to show claimant's cervical pain and restricted 
 
            cervical motion about 75 to 80 percent normal with some 
 
            evidence of C5-6 degenerative disc disease as of April 12, 
 
            1988 (Jt. Ex. C, pp. 5 and 6).
 
            
 
                 On May 26, 1988, claimant visit to Dr. Skoglund shows 
 
            that, in addition to the combined cervical complaints, 
 
            claimant also complained of lumbar pain.  Claimant told the 
 
            doctor he was working helping people take out a deck two 
 
            weeks earlier and developed a catch in the low back and into 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            his right leg.  The doctor found 75 percent of normal lumbar 
 
            spine motion and evidence of degenerative disc disease. At 
 
            that time, the doctor thought probably it was doubtful 
 
            claimant could return to skilled work (Jt. Ex. C, p. 6).
 
            
 
                 Claimant's medical records reflect a concern also of 
 
            whether claimant had right carpal tunnel syndrome.  Dr. 
 
            Skoglund's notes on September 19, 1988 show a nerve 
 
            conduction test was done and show that claimant also had a 
 
            carpal tunnel condition.  The doctor also indicated claimant 
 
            had post-traumatic arthritis of the wrist and surgery was 
 
            recommended and was performed in December 1988 (Jt. Ex. C, 
 
            pp. 7-8).
 
            
 
                 On February 22, 1989, Dr. Skoglund's records reflect 
 
            that claimant still had 70 percent of normal cervical 
 
            restriction of motion and his right wrist restriction was 
 
            the same as prior to the December 1988 surgery but the pain 
 
            was gone.  Claimant had some low back discomfort.  The 
 
            doctor wrote that claimant "will have a secondary permanent 
 
            disability of both cervical spine and the right wrist 
 
            secondary to past injuries."  The undersigned notes nothing 
 
            was ever said as to the lumbar spine and any permanent 
 
            disability (Jt. Ex C, p. 10).
 
            
 
                 The medical records on May 1, 1989 reflect claimant can 
 
            return to work from his hand standpoint effective May 8, 
 
            1989 (Jt. Ex. C, p. 11).
 
            
 
                 T. L. Von Gillern, M.D., who is in the same clinic as 
 
            Dr. Skoglund, wrote on July 10, 1989 that claimant had a 10 
 
            percent upper extremity impairment equivalent to 6 percent 
 
            body as a whole (Jt. Ex. C, p. 11).  The doctor also wrote 
 
            that claimant's right carpal tunnel syndrome and post-
 
            traumatic arthritis in the right wrist is likely the result 
 
            of his December 1986 on-the-job injury (Jt. Ex. C, p. 26).
 
            
 
                 The records of a Vijay Verma, M.D., of the Franciscan 
 
            Rehabilitation Center are reflected in Joint Exhibit D.  It 
 
            appears he also became involved with claimant on March 19, 
 
            1987.  Claimant was given physical therapy.  He indicated on 
 
            May 8, 1987 that claimant could continue with his job.  
 
            There is no evidence at this time that the doctor knew of 
 
            claimant's December 1986 work duties.
 
            
 
                 The summary recommendations of claimant's physical 
 
            capacity evaluation by an occupational therapist on June 6, 
 
            1987 are reflected in Joint Exhibit D, page 28.  A 
 
            vocational expert rehabilitator counselor with the 
 
            Franciscan Medical Center on June 15, 1987 indicated 
 
            claimant could return to ironwork starting at the minimal 
 
            functional level at a job not as physically demanding (Jt. 
 
            Ex. D, pp.28 and 32).  Dr. Verma, on July 1, 1987, also 
 
            indicated claimant can return to work and start at slower 
 
            pace and gradually increase his work toleration (Jt. Ex. D, 
 
            p. 33).  Dr. Verma wrote the ironworker's welfare plan on 
 
            July 8, 1987 as to claimant's return to work and referred to 
 
            weight restrictions of 25 pounds, especially above the 
 
            shoulders (Jt. Ex. D, p. 34).  He also indicated claimant's 
 
            problems probably are related to the December 1986 injury 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            and mentioned claimant's lifting restrictions again on 
 
            January 4, 1988, in a letter to the insurance company (Jt. 
 
            Ex. D, p. 39).  On May 31, 1988, June 1, 1988 and March 14, 
 
            1989, Dr. Verma obviously feels that he can do nothing more 
 
            for the claimant and does not change his prior diagnosis but 
 
            mentions claimant might have to stay away from duties 
 
            causing strain on his neck and back requiring less physical 
 
            activity (Jt. Ex. e, pp. 42, 43, 44 and 46).  Joint Exhibit 
 
            D, pp. 48 and 50 show essentially an unremarkable study as 
 
            to claimant's scan of his lumbar spine.
 
            
 
                 The records of Robert W. Milas, M.D., a neurologist, 
 
            are reflected in Joint Exhibit E.  He first saw claimant on 
 
            December 21, 1987.
 
            
 
                 On February 23, 1988, Dr. Milas strongly felt claimant 
 
            should seek employment in an occupation which is much less 
 
            physically demanding than the one he is currently in (Jt. 
 
            Ex. E, p. 6).  On August 8, 1988, he opined that total 
 
            impairment to claimant's body as a whole of 21 percent, all 
 
            involving various cervical motion-flexion limitation.  He 
 
            again emphasized claimant's need to find a type of 
 
            employment different than his prior ironworker occupation 
 
            (Jt. Ex. E, p. 11).  Nothing was mentioned as to claimant's 
 
            lumbar spine problems if any existed.  On March 22, 1989, 
 
            claimant complained to Dr. Milas of lumbar pain that was 
 
            worsening.  It is obvious the history claimant gave was all 
 
            relative to his December 1986 injury and nothing was said as 
 
            to claimant's May 1988 episode when he was helping remove a 
 
            deck (Jt. Ex. E, p. 13).  Eventually, an MRI was done.  The 
 
            CT was unremarkable and the MRI showed no evidence of a 
 
            herniated disc.  It showed changes consistent with an L4-5 
 
            and L5-S degenerative disc disease and to a lesser degree at 
 
            L2 and 3 levels (Jt. Ex. E, pp. 20 and 21).  On March 20, 
 
            1990, the doctor opined a total impairment to claimant's 
 
            body as a whole of 20 percent relating to claimant's lumbar 
 
            symptomatology and based this strictly on claimant relating 
 
            this to the onset of his December 1986 fall.  The doctor 
 
            then causally connected this impairment to the December 1986 
 
            fall (Jt. Ex. E, p. 23).
 
            
 
                 The undersigned notes nothing as to claimant's cervical 
 
            problems was mentioned but does not believe this situation 
 
            has changed and that that has been previously addressed.  It 
 
            appears the new lumbar complaint was what was attracting the 
 
            medical attention.  It appeared earlier in the medical that 
 
            nothing more could be done as to claimant's permanent 
 
            cervical problem.  The undersigned finds that in this latest 
 
            medical, the fact that the cervical was not mentioned does 
 
            not mean that that problem had healed.
 
            
 
                 Claimant's Exhibit 1 reflects his income over several 
 
            years.  It shows that claimant's income has varied over the 
 
            years in his ironworker jobs.  In 1986, it appears he made 
 
            $16,832, and the most he made in his ironworker job was 
 
            $23,177 in 1981.  In his overhead door business the 1988-
 
            1989 income was $2,200 to approximately $3,600.
 
            
 
                 The main issue is the extent of claimant's permanent 
 
            disability.  It appears the crux of defendants' argument is 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            that claimant had an intervening nonwork-related injury in 
 
            May of 1988 in which he apparently was helping some people 
 
            take out a deck and developed a catch in his low back that 
 
            went into his right leg.  Also, claimant has had some back 
 
            pain off and on.  It is important to note that as of 
 
            December 10, 1986, it is undisputed that claimant was doing 
 
            his ironworker job and apparently doing it well.  He was 
 
            also one of those ironworkers out of an apparent select few 
 
            that did the high beam work.  This obviously takes much 
 
            greater dexterity in addition to strength.  The medical 
 
            evidence shows that claimant has had cervical problems and 
 
            has limitation of motion in his cervical neck which 
 
            restricts him.  Some doctors have indicated that he should 
 
            seek work other than as an ironworker.  Claimant injured his 
 
            right wrist on December 10, 1986.  He had a prior impairment 
 
            to that same wrist of 6 percent.  The evidence is clear that 
 
            notwithstanding this prior impairment, he was able to do his 
 
            job as of December 10, 1986 without apparent effect of that 
 
            prior impairment.  Claimant had 100 percent access to the 
 
            ironworker jobs and that industry prior to December 10, 
 
            1986.  The overwhelming medical evidence indicates that 
 
            claimant's access to this industry is for all purposes 
 
            foreclosed to him.   We have doctors who indicate that 
 
            claimant can or could return to work by indicating he should 
 
            do work or seek employment in an occupation which is much 
 
            less physically demanding than the one he is currently in 
 
            (Def. Ex. E, p. 6).  Claimant could return starting at 
 
            minimal level in a job not as physically demanding (Jt. Ex. 
 
            E., p. 32).  Dr. Milas, a neurologist, opined claimant had a 
 
            21 percent permanent impairment due to cervical motion and 
 
            flexion limitations (Jt. Ex. E, p. 11).  The undersigned 
 
            believes that the records shows that the injury caused by 
 
            claimant's December 10, 1986 work-related injury resulting 
 
            in a particular impairment to claimant's cervical area was 
 
            enough to prevent claimant's return to normal ironwork duty.  
 
            It is one thing to say that claimant could do ironwork at a 
 
            minimal and less physically demanding nature, but it is 
 
            obviously the nature of an ironworker that one would have to 
 
            be able to do all the things necessary and there is no 
 
            evidence that there are jobs available which would cater to 
 
            a consistent employment within the industry for an injured 
 
            worker to do minimal physical work.  It is understandable 
 
            that one requesting an ironworker, particularly one working 
 
            at the heights and the hourly pay that they get, would 
 
            expect a healthy ironworker.  It is not unreasonable to 
 
            suspect that one with a cervical problem that claimant has 
 
            should not be working on the high beams on a construction 
 
            project.  What employer would dare hire a person with that 
 
            problem.
 
            
 
                 The undersigned finds that claimant's lumbar condition 
 
            was not caused by his December 10, 1986 injury, at least to 
 
            the extent that he is suffering now and that is evident from 
 
            the medical record that this began as a result of his May 
 
            1988 incident.  The undersigned further believes that this 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            lumbar problem would also severely affect claimant's 
 
            employment as a steelworker but as found earlier, the 
 
            undersigned believes claimant was foreclosed from that 
 
            industry for all purposes without the addition of any lumbar 
 
            problem.  Dr. Milas has opined that claimant's lumbar 
 
            problem has resulted in a 20 percent impairment to 
 
            claimant's body as a whole.  The undersigned finds that that 
 
            impairment has not arisen out of and in the course of his 
 
            employment.  It is interesting to note that Joint Exhibit D, 
 
            page 48 and 50, show essentially an unremarkable study as to 
 
            claimant's CT scan of his lumbar spine.  The CT scan was on 
 
            March 24, 1989.  It appears claimant has degeneration of his 
 
            spine.  The undersigned feels that claimant is motivated and 
 
            has attempted to start his own business but with his 
 
            condition he is obviously not making a decent living and 
 
            what living he is making is substantially less than what he 
 
            was making as an ironworker.  Claimant has withdrawn his 
 
            union card as an ironworker claiming the cause being both 
 
            his December 10 injury and resulting impairment and also at 
 
            the time of the withdrawal the amount of work available in 
 
            the area.  The undersigned believes that notwithstanding the 
 
            ups and downs of the ironwork industry, claimant had no 
 
            intent to nor would he under the facts of this case have 
 
            left this industry within which he had experience had it not 
 
            been for the December 10, 1986 injury.  It is also obvious 
 
            that his need to leave this industry is directly a result of 
 
            his December 10, 1986 injury and particularly as to his 
 
            cervical problems.  Claimant also had a past impairment to 
 
            his right wrist, which condition was made worse by the 
 
            December 10, 1986 injury but it appears there is currently 
 
            no increase in any permanent impairment of claimant's wrist.
 
            
 
                 The undersigned finds that claimant has a permanent 
 
            impairment to his body as a whole as a result of his 
 
            December 10, 1986 work injury causing injury to the cervical 
 
            area of claimant's back.  The undersigned finds that 
 
            claimant has a substantial loss of income as a result of the 
 
            December 10, 1986 injury.  Claimant is 42 years of age.  It 
 
            is not easy to go out and find employment at that age with a 
 
            back condition which claimant has.  Claimant began as an 
 
            ironworker in 1974 and has a long history in this field.  
 
            His transferable skills due to his work injury are not 
 
            transferable to any other jobs except in the construction 
 
            industry which would require claimant to have a back in 
 
            better condition than he presently has.  The undersigned 
 
            finds that claimant's education is such that it does not 
 
            leave him with transferable skills that would in any respect 
 
            enable him to earn any living comparable to what he was 
 
            making as an ironworker.
 
            
 
                 Taking into consideration claimant's age, education, 
 
            work experience prior to the injury, his medical history 
 
            prior to the injury and after the injury, his present 
 
            condition, his income prior to his December 10, 1986 injury 
 
            and his income since the injury, the location and severity 
 
            of his injury, his motivation and functional impairment, the 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            undersigned finds that claimant has a 40 percent impairment 
 
            to his body as a whole.  This impairment does not involve or 
 
            include any consideration as to claimant's lumbar complaints 
 
            or problems or impairment as the undersigned has found that 
 
            any current injury to the lumbar back is not as a result of 
 
            claimant's December 10, 1986 injury, or if there is any 
 
            effect to the lumbar spine from said injury the more 
 
            proximate or likely cause was claimant's May 1988 injury 
 
            when he attempted to help someone take out a porch deck.
 
            
 
                 The remaining issue involves 85.27 medical benefits.  
 
            The undersigned finds that defendants shall pay those bills 
 
            represented in exhibits 2, 3 and 4.  The undersigned finds 
 
            that they are causally connected in light of what has been 
 
            discussed previously therein.  Even though claimant's 
 
            exhibit 3 referred to a CT scan lumbar spine, this bill was 
 
            helpful in the ultimate resolution of this matter herein as 
 
            far as the findings and was a proper expense.  As to 
 
            claimant's exhibit 5, the chiropractic treatments of Dr. 
 
            Malley, the undersigned finds that those were not authorized 
 
            and that this treatment was mainly for claimant's lumbar 
 
            spine and these treatments were after his May 1988 incident 
 
            and are not causally connected to claimant's December 10, 
 
            1986 work injury.
 
            
 
                                conclusions of law
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 Iowa Code section 85.27 provides, in part:
 
            
 
                    For purposes of this section, the employer is 
 
                 obliged to furnish reasonable services and 
 
                 supplies to treat an injured employee, and has the 
 
                 right to choose the care.  The treatment must be 
 
                 offered promptly and be reasonably suited to treat 
 
                 the injury without undue inconvenience to the 
 
                 employee.  If the employee has reason to be 
 
                 dissatisfied with the care offered, the employee 
 
                 should communicate the basis of such 
 
                 dissatisfaction to the employer, in writing if 
 
                 requested, following which the employer and the 
 
                 employee may agree to alternate care reasonably 
 
                 suited to treat the injury.  If the employer and 
 
                 employee cannot agree on such alternate care, the 
 
                 commissioner may, upon application and reasonable 
 
                 proofs of the necessity therefor, allow and order 
 
                 other care.  In an emergency, the employee may 
 
                 choose the employee's care at the employer's 
 
                 expense, provided the employer or the employer's 
 
                 agent cannot be reached immediately.
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant incurred a work-related injury that arose out 
 
            of and in the course of claimant's employment on December 
 
            10, 1986, resulting in claimant incurring an impairment to 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            his body as a whole resulting from an injury to his cervical 
 
            spine which resulted in claimant having restriction of 
 
            motion and flexion.
 
            
 
                 Claimant has a substantial loss of income as a result 
 
            of his December 10, 1986 work-related injury.
 
            
 
                 Claimant has been foreclosed from his prior 100 percent 
 
            access to the ironworker industry as a result of his 
 
            December 10, 1986 work injury.
 
            
 
                 Claimant has a substantial loss of earning capacity as 
 
            a result of his December 10, 1986 injury.
 
            
 
                 Claimant has a 40 percent industrial disability as a 
 
            result of the December 10, 1986 work injury.
 
            
 
                 Defendants shall pay those medical bills, as 
 
            represented by claimant's exhibit 2, 3 and 4, as same are 
 
            causally connected to claimant's December 10, 1986 work 
 
            injury.
 
            
 
                 Defendants are not obligated to pay Dr. Malley's bill 
 
            represented by claimant's exhibit 5, as the same was not 
 
            causally connected to claimant's December 10, 1986 injury 
 
            and was not authorized by defendants.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay unto claimant two hundred 
 
            (200) weeks of permanent partial disability benefits at the 
 
            rate of three hundred eighty-three and 74/100 dollars 
 
            ($383.74) per week beginning May 9, 1989.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.
 
            
 
                 That defendants shall pay those bills represented by 
 
            claimant's exhibit 2 ($616.50), exhibit 3 ($126.00) and 
 
            exhibit 4 ($504.00).  Defendants are not responsible for Dr. 
 
            Malley's chiropractic bill.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of August, 1991.
 
            
 
            
 
            
 
                                          ______________________________
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Michael J Motto
 
            Attorney at Law
 
            1000 First Bank Center
 
            Davenport IA 52801
 
            
 
            Mr Greg A Egbers
 
            Attorney at Law
 
            600 Union Arcade Bldg
 
            111 E Third St
 
            Davenport IA 52801-1596
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803
 
                           Filed August 19, 1991
 
                           Bernard J. O'malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JEFFREY H. PUCK,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 840352
 
            SEITEHR & CHERRY COMPANY and  :
 
            VOGT AND CONANT SOUTHWEST     :
 
            COMPANY,                      :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Found Claimant incurred a 40% industrial disability.
 
            Forty-two year old claimant was an ironworker with 100% 
 
            access to this work industry before his work injury to his 
 
            cervical spine.  Claimant no longer has reasonable access to 
 
            this industry.  Claimant's cervical injury alone prevented 
 
            his continuing his ironworker job.  Found claimant's later 
 
            lumbar non-work injury may now be a contributing factor to 
 
            claimant's problems.  The industrial disability awarded 
 
            strictly on the cervical spine injury.
 
            
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JAMES R. HECK,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                         File No. 840365
 
         JOHN MORRELL  & CO.,
 
                                         A R B I T R A T I 0 N
 
              Employer,
 
                                            D E C I S I 0 N
 
         and
 
         
 
         NATIONAL UNION FIRE
 
         INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by James R. 
 
         Heck, claimant, against John Morrell & Company, employer 
 
         (hereinafter referred to as Morrell), and National Union Fire 
 
         Insurance Company, insurance carrier, defendants, for workers' 
 
         compensation benefits as a result of an alleged injury on 
 
         December 5, 1986.  On March 21, 1990, a hearing was held on 
 
         claimant's petition and the matter was considered fully submitted 
 
         at the close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony and written exhibits were received during the hearing 
 
         from the parties.  The exhibits offered into the evidence are 
 
         listed in the prehearing report.
 
         
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
         
 
              1. On December 5, 1986, claimant received an injury which 
 
         arose out of and in the course of his employment with Morrell.
 
         
 
              2. Claimant is not seeking additional temporary total 
 
         disability or healing period benefits in this proceeding.
 
         
 
              3. If the injury is found to have caused permanent 
 
         disability, the type of disability is an industrial disability to 
 
         the body as a whole.
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         HECK V. JOHN MORRELL & CO.
 
         Page 2
 
         
 
         
 
                                      ISSUE
 
         
 
              The only issue submitted by the parties for determination in 
 
         this proceeding was the extent of claimant's entitlement, if any, 
 
         to weekly benefits for permanent disability.  The parties 
 
         indicated at hearing that the issue of medical benefits was:no 
 
         longer in dispute.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Having heard the testimony and considered all the evidence, 
 
         the deputy industrial commissioner finds as follows:
 
         
 
              Claimant has worked for Morrell since January 1981.  
 
         Claimant continues to work for Morrell at the present time.  
 
         Claimant's job for the most part during his employment at Morrell 
 
         has been box making and he continues in this job at the present 
 
         time.
 
         
 
              There was no dispute that claimant suffered a right inguinal 
 
         hernia after attempting to turn over a 300-400 pound bundle of 
 
         flat cardboard used in assembling boxes.  Claimant was being 
 
         assisted at the time by a fellow employee.  Normally, a forklift 
 
         truck transports the bundles to the box making area and helps in 
 
         flipping the boxes on end so they can be used.  However, many 
 
         times the forklift is not available and employees must flip the 
 
         bundles themselves.
 
         
 
              As a result of the injury, claimant was absent from his work 
 
         until February 16, 1987, while recovering from hernia surgery 
 
         performed by Paul Wolport, M.D.  Dr. Wolport released claimant to 
 
         full duty and claimant returned to box making.  Claimant 
 
         complained of wrist pain a week later and of groin pain on March 
 
         5, 1987.  Claimant then went out on strike for approximately one 
 
         year.  After his return to work following the strike on March 9, 
 
         1988, claimant was performing a different job called boning, and 
 
         at that time reported an injury from a fall causing pain to his 
 
         right shoulder down to his elbow and into his neck.  This injury 
 
         occurred on March 15, 1988.     Claimant sought treatment from 
 
         Milton Grossman, M.D., who diagnosed a contusion of the dorsal 
 
         spine and released claimant to return to work without 
 
         restrictions.  Claimant testified that he then requested and 
 
         received a placement on the preferential rehire list and left his 
 
         employment.  While off work, claimant reported groin pain on 
 
         April 26, 1988, to the company nurse and was advised to see a 
 
         physician.
 
         
 
              When a box making job was again opened, claimant was called 
 
         back to work and he began working on January 16, 1989.  One day 
 
         later, claimant complained of right inguinal pain after lifting 
 
         at work and was seen by Dr. Fee (first name unknown).  Dr. Fee 
 
         imposed a 10 pound lifting restric-
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         HECK V. JOHN MORRELL & CO.
 
         Page 3
 
         
 
         tion for the next 10 days.  Dr. Fee's report labeled the incident 
 
         on January 17, 1989, as an injury.  On February 23, 1989, 
 
         claimant was seen for the same injury by Dr. Youngblade (first 
 
         name unknown) who increased the weight restriction to 30 pounds 
 
         and added the following comments in the section entitled "Other 
 
         Restrictions: Careful lifting protect this back -."  Dr. 
 
         Youngblade did not provide an expected duration of the work 
 
         restrictions and only drew a line in the space provided on the 
 
         printed Morrell form for making this estimate.  There is no 
 
         explanation in the record for this drawn line.   At hearing, 
 
         claimant admitted to a back injury a few months prior to the 
 
         hearing.
 
         
 
              After the hernia operation following the injury in this 
 
         case, claimant had problems with lifting.  This was verified by 
 
         fellow employees who testified at hearing and who appeared 
 
         credible.  Claimant may indeed continue to have these same 
 
         lifting problems'.
 
         
 
              However, no finding could be made that the hernia injury of 
 
         December 5, 1986, was a cause of claimant's past or continued 
 
         lifting problems.  Claimant has had injuries to his back and 
 
         shoulders as set forth above.           Claimant's reliance upon 
 
         the last report from Dr. Youngblade as showing continued work 
 
         restrictions is unfounded.  It would be speculation by the 
 
         undersigned deputy to interpret as permanent a line drawn in a 
 
         space provided for the doctor to provide an estimate of the 
 
         duration of the restrictions without some support elsewhere in 
 
         the record.  Also, Dr. Youngblade makes reference to protecting 
 
         claimant's back in this report, not a protection of claimant's 
 
         hernia condition.  Claimant testified that he does experience 
 
         groin pain when he lifts.  However, his medical history fails to 
 
         show a consistent pattern of complaints to a physician and at the 
 
         present is not seeking treatment for his condition.  Therefore, 
 
         claimant could not be found credible on the matter of his 
 
         continuing complaints.  No physician has opined that claimant has 
 
         permanent partial impairment due to the injury on December 5, 
 
         1986.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              I. The claimant has the burden of proving by a preponderance 
 
         of the evidence that the work injury is a cause of the claimed 
 
         disability.  A disability may be either temporary or permanent.  
 
         In the case of a claim for temporary disability, the claimant 
 
         must establish that the work injury was a cause of absence from 
 
         work and lost earnings during a period of recovery from the 
 
         injury.  Generally, a claim of permanent disability invokes an 
 
         initial determination of whether the work injury was a cause of 
 
         permanent physical impairment or permanent limitation in work 
 
         activity.  However, in some instances, such as a job transfer 
 
         caused by a work injury, permanent disability benefits can be 
 
         awarded
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         HECK V. JOHN MORRELL & CO.
 
         Page 4
 
         
 
         
 
         without a showing of a causal connection to a physical change of 
 
         condition.   Blacksmith v. All-American, Inc., 290 N.W.2d 348, 
 
         354 (Iowa 1980) ; McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
         (Iowa 1980).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d, 167 (1960) . The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d.867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient along to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain. an award. Giere v. Asse 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).  
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.    Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.     In the case of 
 
         a preexisting condition, an employee is not entitled to recover 
 
         for the results of a preexisting injury or disease but can 
 
         recover for an aggravation thereof which resulted in the 
 
         disability found to exist.  Olson v. Goodyear Service Stores, 255 
 
         Iowa 1112, 125 N.W.2d 251 (1963).
 
         
 
              In the case sub judice, claimant contends that he has 
 
         suffered permanent disability as a result of the work injury due 
 
         to his complaints expressed at hearing.  The preponderance of the 
 
         evidence failed to show either permanent partial impairment or 
 
         its causal connection to the work injury.  Although it is 
 
         possible to demonstrate permanent impairment without a supportive 
 
         medical opinion, the lay testimony offered must show a clear 
 
         pattern of complaints beginning with the date of injury.  This 
 
         was lacking in this case, especially when there was intervening 
 
         injuries affecting claimant's lifting and extended periods of 
 
         absence from work without complaints.
 
         
 
              It is also possible, under the law set forth above, to show 
 
         entitlement to permanent disability benefits without a finding of 
 
         permanent impairment when the injury results in an adverse job 
 
         transfer.  However, in this case, claimant is currently 
 
         performing the same job that he performed at the time of the 
 
         injury.  The loss of pay in the box making job
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         HECK V. JOHN MORRELL & CO.
 
         Page 5
 
         
 
         
 
         that claimant has experienced to date, is not attributable to the 
 
         work injury but to negotiated wage concessions under a union 
 
         contract.
 
         
 
                                      ORDER
 
         
 
              1. Claimant's.claim for permanent disability benefits is 
 
         denied.
 
         
 
              2. Claimant shall pay the cost of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 19th day of June, 1990.
 
         
 
         
 
         
 
         
 
         
 
                                         LARRY P. WALSHIRE
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert L. Sikma
 
         Attorney at Law
 
         402 Benson Bldg
 
         Sioux City IA 51101
 
         
 
         Ms. Judith Ann Higgs
 
         Attorney at Law
 
         701 Pierce St, Suite 200
 
         P 0 Box 3086
 
         Sioux City IA 51102
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         5-1803
 
                                         Filed June 19, 1990
 
                                         LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JAMES R. HECK, 
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                  File No. 840365
 
         JOHN MORRELL  & CO.,
 
                                                A R B I T R A T I 0 N
 
              Employer,
 
                                                  D E C I S I 0 N
 
         and
 
         
 
         NATIONAL UNION FIRE
 
         INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         5-1803
 
         
 
              Extent of permanent partial disability benefits.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         LINDA GREER,                  :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :      File No. 840641
 
         SARTORI MEMORIAL HOSPITAL,    :
 
                                       :        A P P E A L
 
              Employer,                :
 
                                       :      D E C I S I O N
 
         and                           :
 
                                       :
 
         EMPLOYERS MUTUAL COMPANIES,   :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
                              statement of the case
 
         
 
              Defendants appeal and claimant cross-appeals from an 
 
         arbitration decision awarding claimant permanent total disability 
 
         benefits as a result of a work injury on August 21, 1986.  The 
 
         record on appeal consists of the transcript of the arbitration 
 
         decision, joint exhibits 1 through 18 and defendants' exhibits 1 
 
         through 11.  Both parties filed briefs on appeal.
 
         
 
                                      issue
 
         
 
              The sole issue preserved on appeal is whether claimant 
 
         sustained an injury that arose out of and in the course of her 
 
         employment.
 
         
 
                              review of the evidence
 
         
 
              The arbitration decision filed May 22, 1989 adequately and 
 
         accurately reflects the pertinent evidence and it will not be 
 
         reiterated herein.
 
         
 
                                  applicable law
 
         
 
              The citations of law in the arbitration decision are 
 
         appro-priate to the issue and evidence.
 
         
 
                                     analysis
 
         
 
              Defendants assert that the record does not support the 
 
         conclusion that claimant sustained an injury that arose out of 
 
         and in the course of her employment.  Defendants rely on the 
 
         testimony of two witnesses and the emergency room record from 
 
         Sartori Hospital.  The witnesses testified that claimant stated 
 
         to them that she did not injure herself at work.  However, 
 
         defendants' witness William J. Robb, M.D., testified that 
 
         claimant's description of spot cleaning the carpet in the summer 
 
         of 1986 was consistent with a minor back strain.  
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
              Claimant's description of spot cleaning the carpet and 
 
         feeling a back strain while doing the job has been consistent 
 
         throughout the proceeding.  Claimant's lack of education and 
 
         ability to understand appears to have caused confusion concerning 
 
         reporting her work injury to her employer. 
 
         
 
              The determination that claimant is a credible witness is 
 
         reviewable by the industrial commissioner on appeal.  The 
 
         objec-tive evidence presented indicates that claimant 
 
         consistently described the incident of spot cleaning carpets.  
 
         
 
              Claimant's credibility is important in this case.  
 
              Claimant is the only witness to the alleged injury.  
 
              Although the deputy's determination that a witness was 
 
              not credible is fully reviewable on appeal, when that 
 
              determination is made based on the witness' demeanor, 
 
              as opposed to objective aspects of the record such as 
 
              inconsistent statements, the finding that a witness was 
 
              not credible must be given great weight on appeal.  In 
 
              this case, the determination that claimant was not 
 
              credible is based on both objective evidence and 
 
              demeanor.
 
         
 
         Asmus v. Waukesha Engine, Appeal Decision, August 24, 1989.
 
         The objective evidence supports claimant's assertion that she 
 
         suffered an injury arising out of and in the course of her 
 
         employment.  A coworker testified that claimant worked on Mondays 
 
         in the laundry department and that the rest of the week claimant 
 
         was a floater with the housekeeping department.  Spot cleaning 
 
         carpets would be the type of work which claimant would be 
 
         assigned to perform by her supervisor.  Claimant mentioned to 
 
         Arvilla Gerloff, a coworker, a couple of times in late August 
 
         that she had back problems.  This time frame is consistent with 
 
         the injury date which claimant provided to her treating 
 
         physicians.  
 
         As defendants point out there are inconsistences in the objective 
 
         evidence presented at the hearing.  Arvilla Gerloff asked 
 
         claimant if she had hurt her back at work and Ms. Gerloff 
 
         testified that claimant told her that she did not hurt her back 
 
         at work.  Arvilla Gerloff testified that occasionally an employee 
 
         who sustained what he or she thought was a minor injury did not 
 
         fill out an incident report or report to the emergency room as 
 
         the employer required.  Finally, defendants note that claimant 
 
         failed to report that she suffered a work injury when she went to 
 
         the Sartori emergency room on August 31, 1986.  Claimant had been 
 
         told by coworkers and her supervisor that if she suffered a work 
 
         injury to report to the emergency room.  Claimant did report to 
 
         the emergency room on August 31, 1986 when she could no longer 
 
         stand the back pain.  The fact that claimant did not tell the 
 
         emergency room personnel that she suffered a work injury is not 
 
         critical.  Claimant maintained a consistent description of her 
 
         injury throughout her treatment for her back problem.
 
         
 
              Claimant had been described as a good employee and an honest 
 
         individual by her coworkers.  Claimant sought medical care within 
 
         ten days of her back injury and provided consistent statements to 
 
         her medical care providers of her back injury.  On balance, 
 
         objective evidence supports the conclusion that claimant 
 
         sustained a back injury that arose out of and in the course of 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         her employment with defendants.  Demeanor is not a substantial 
 
         factor in the determination that claimant is credible.  Claimant 
 
         proved that she sustained an injury which arose out of and in the 
 
         course of her employment with defendants on August 21, 1986.
 
         
 
              Claimant's appeal brief correctly notes that the issue of 
 
         permanent total disability was not preserved by the defendants on 
 
         appeal.  Therefore, the issue of permanent total disability is 
 
         not before the industrial commissioner.  It is not necessary to 
 
         respond to claimant's assertion that claimant is an odd-lot 
 
         employee since she was found to be permanently totally disabled.
 
         
 
                                 findings of fact
 
         
 
              1.  Claimant is found to be credible based upon the 
 
         objective evidence presented at the hearing.
 
         
 
              2.  Claimant's witnesses were credible.
 
         
 
              3.  On August 21, 1986 claimant suffered an injury to the 
 
         low back which arose out of and in the course of her employment 
 
         with Sartori.  This injury occurred while scrubbing a spot in 
 
         floor carpeting.  Claimant had been doing heavy work that work 
 
         week consisting of pushing and loading a heavy laundry cart.  
 
         Claimant felt a sudden strain in her back while on all fours and 
 
         reaching.  This pain was continuous from this event and became 
 
         worse over time until she sought medical treatment from the 
 
         Sartori emergency room physicians.  Claimant did not report the 
 
         injury before going to the emergency room because she felt that 
 
         the injury was only minor and would heal.
 
         
 
              4.  At the time of the work injury, claimant had serious 
 
         emotional psychological problems with panic attacks and 
 
         depres-sion.  Claimant also had a heart condition called a mitral 
 
         valve prolapse which is associated with the panic attacks.  She 
 
         was under medication and receiving regular counseling for this 
 
         disorder.  However, despite these problems she was able to work 
 
         and her supervisors at Sartori felt she was a good dependable 
 
         worker before the work injury.
 
         
 
              5.  Claimant had a back problem following an exercising 
 
         program in 1981 but she fully recovered from this injury.  She 
 
         had no low back problems between 1981 and the work injury herein.
 
         
 
              6.  Claimant is functionally illiterate with only a fourth 
 
         grade education.  Claimant has an IQ of 64 which is in the 
 
         mid-retardation range.
 
         
 
              7.  The work injury of August 21, 1986 was a cause of a 12 
 
         percent permanent functional physical impairment to the body as  
 
         a whole and of permanent restrictions on her physical activity 
 
         consisting of no heavy work and working only in sedentary 
 
         employ-ment where the amount of prolonged sitting and standing is 
 
         restricted.
 
         
 
              8.  The work injury of August 21, 1986 and resulting 
 
         physical restrictions, is a significant cause of mental 
 
         impair-ment which renders claimant incapable of employment.  The 
 
         work injury and resulting functional impairment precipitated 
 
         addi-tional stress which was aggravated by a lack of 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         understanding due to limited intelligence and insufficient 
 
         education.  The work injury was the last straw in a sequence of 
 
         events leading to complete unemployability.
 
         
 
              9.  The work injury of August 21, 1986 and resulting 
 
         physical and mental functional impairments is a cause of a 100 
 
         percent loss of earning capacity.  Claimant was 36 years old at 
 
         the time of the arbitration hearing but illiterate and with 
 
         little formal education.  Claimant is unable to read multiple 
 
         syllable words.  Claimant is able to communicate only orally.  
 
         Claimant has a lack of understanding as to the nature of her 
 
         disability and only very aggressive rehabilitation activity will 
 
         improve her physical condition, her emotional state and her 
 
         illiteracy.  To date, no such effort has been made.  Sartori 
 
         hospital has not attempted to return claimant to work at their 
 
         institution or any other place of employment.  Claimant has not 
 
         worked in any capacity since September 9, 1986.  Claimant was 
 
         terminated by Sartori Hospital as a result of an inability to 
 
         work due to her work injury.
 
         
 
              10. The medical expenses requested in the prehearing report 
 
         which total $6,103.06 are fair and reasonable and were incurred 
 
         by claimant for reasonable and necessary treatment of her work 
 
         injury.
 
         
 
              11. The costs requested in the prehearing report are 
 
         reason-able and were paid by claimant.
 
         
 
                                conclusion of law
 
         
 
              Claimant proved that she suffered an injury which arose out 
 
         of and in the course of her employment with defendants on August 
 
         21, 1986 when she felt a strain in her lower back while spot 
 
         cleaning carpet.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                              
 
         
 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         order
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants shall pay to claimant permanent total 
 
         disability benefits for an indefinite period of time during the 
 
         period of her disability at the rate of one hundred twenty-one 
 
         and 26/100 dollars ($121.26) per week from September 9, 1986.
 
         
 
              That defendants shall pay the medical expenses listed in the 
 
         prehearing report but only to claimant if she has paid those 
 
         expenses.  Otherwise, defendants are directed to pay the provider 
 
         directly subject to any attorney lien claimant's attorney may 
 
         have for his services.
 
         
 
              That defendants shall receive credit for previous payment of 
 
         benefits under nonoccupational group insurance plan, if 
 
         appli-cable and appropriate under Iowa Code section 85.38(2).
 
         
 
              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 the arbitration 
 
         proceeding including costs of the transcription of the hearing 
 
         proceeding.  Defendants shall also pay the costs requested by 
 
         claimant in the prehearing report in the amount of six hundred 
 
         and forty-five and 00/100 dollars ($645.00).
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to rule 343 IAC 3.1.
 
         
 
              Signed and filed this ____ day of November, 1990.
 
         
 
         
 
         
 
         
 
                                       ________________________________
 
                                                CLAIR R. CRAMER
 
                                        ACTING INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert D. Fulton
 
         Attorney at Law
 
         616 Lafayette St.
 
         P.O. Box 2634
 
         Waterloo, Iowa 50704-2634
 
         
 
         Mr. Jay P. Roberts 
 
         Attorney at Law
 
         528 West Fourth St.
 
         P.O. Box 1200
 
         Waterloo, Iowa 50704
 
         
 
              
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            5-1108.50
 
            Filed November 28, 1990
 
            LPW
 
            Clair R. Cramer
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LINDA GREER,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 840641
 
            SARTORI MEMORIAL HOSPITAL,    :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1108.50
 
            The sole issue preserved on appeal is whether claimant 
 
            sustained an injury arising out of and in the course of her 
 
            employment on August 21, 1986.  Claimant had been described 
 
            as a good employee and an honest individual by her 
 
            coworkers.  Claimant sought medical care within ten days of 
 
            her back injury and provided consistent statements to her 
 
            medical care providers of her back injury.  Objective 
 
            evidence supports claimant's assertion that she suffered an 
 
            injury arising out of and in the course her employment with 
 
            defendants on August 21, 1986.
 
            Claimant's appeal brief correctly notes that the issue of 
 
            permanent total disability was not preserved by the 
 
            defendants on appeal,  Therefore, the issue of permanent 
 
            total disability is not before the industrial commissioner.  
 
            It is not necessary to respond to claimant's assertion that 
 
            claimant is an odd-lot employee since she was found to be 
 
            permanently totally disabled.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LINDA GREER,
 
         
 
              Claimant,
 
                                                 File No. 840641
 
         vs.
 
                                              A R B I T R A T I 0 N
 
         SARTORI MEMORIAL HOSPITAL,
 
                                                  D E C I S I 0 N
 
              Employer,
 
                                                    F I L E D
 
         and
 
                                                    MAY 22 1989
 
         EMPLOYERS MUTUAL COMPANIES,
 
                                           IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Linda Greer, 
 
         claimant, against Sartori Memorial Hospital, employer 
 
         (hereinafter referred to as Sartori), and Employers Mutual 
 
         Companies, insurance carrier, defendants, for workers' 
 
         compensation benefits as a result of an alleged injury on August 
 
         21, 1986.  On September 22, 1988, a hearing was held on 
 
         claimant's petition and the matter was considered fully submitted 
 
         at the close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing from claimant and the 
 
         following witnesses:  Manuel Davis, Jr., David L. Greer, Sr., 
 
         Danny Rigel, Mary Gerloff, and Arvilla Gerloff.  The exhibits 
 
         received into the evidence at the hearing are listed in the 
 
         prehearing report. According to the prehearing report, the 
 
         parties have stipulated to the following matters:
 
         
 
              1.  Claimant's last day of employment in any capacity was 
 
         September 8, 1986.
 
         
 
              2.  If the alleged injury is found to have caused permanent 
 
         disability, the type of disability is an industrial disability to 
 
         the body as a whole.
 
         
 
              3.  At the time of the alleged work injury, claimant was 
 
         married and entitled to four exemptions in her tax returns for 
 
         the purposes of determining her rate of compensation.
 
         
 
              4.  The charges contained in the medical bills submitted by 
 
         claimant at hearing were fair and reasonable and the provider of 
 
         those services would testify that they were incurred for 
 
         reasonable and necessary treatment of the alleged work injury.  
 
         It was agreed that defendants would not offer contrary evidence, 
 
         however.  Also, the parties stipulated that the requested medical 
 
         expenses contained in the prehearing report were causally 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         connected to the back condition upon which the claim is based but 
 
         that the issue of the causal connection of this back condition to 
 
         a work injury remained at issue.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
           
 
                I.  Whether claimant received an injury arising out of and 
 
         in the course of her employment;
 
              
 
               II.  Whether there is a causal relationship between the 
 
         work injury and the claimed disabilities;
 
              
 
              III.  The extent of claimant's entitlement to weekly 
 
         benefits for disability;
 
              
 
               IV.  The extent of claimant's entitlement to medical 
 
         benefits; and,
 
              
 
                V.  Claimant's rate of weekly compensation.
 
         
 
                              STATEMENT OF THE FACTS
 
         
 
              The following is a brief statement highlighting the more 
 
         pertinent evidence presented.  Whether or not specifically 
 
         referred to in this statement, all of the evidence received at 
 
         the hearing was reviewed and considered in arriving at this 
 
         decision. Any conclusions about the evidence received contained 
 
         in the following statement should be viewed as preliminary 
 
         findings of fact.
 
         
 
              Claimant is 36 years of age with only a fourth grade 
 
         education.  Claimant testified that she dropped out of school at 
 
         this time to help her family.  Claimant has only recently 
 
         attempted schooling to improve her reading.  Claimant is 
 
         described by treating physicians and vocational counselors in 
 
         this case as functionally illiterate.  Intellectual testing 
 
         indicates that she is also mildly retarded.  At hearing,.claimant 
 
         appeared pleasant and in obvious physical pain after prolonged 
 
         sitting.  She appears to have good verbal skills although she 
 
         avoids multisyllable words.  At hearing, she demonstrated her 
 
         lack of reading ability. Claimant admits to faking understanding 
 
         of written words and multiple syllable words in oral 
 
         communication.  She states that her illiteracy has been an 
 
         embarrassment to her all of her life and she tries to hide it.  
 
         She testified that when she was asked by Sartori to complete an 
 
         employment application, she took the application home to have her 
 
         sister complete the form and sign it for her.  Claimant admitted 
 
         that she lied in this employment application by stating that she 
 
         had completed the ninth grade. Claimant explained that this 
 
         untruth was again an attempt on her part to cover up her lack of 
 
         education.  During her employment at Sartori, claimant said that 
 
         she took her time card home to have her husband complete it.
 
         
 
              Claimant stated that she worked for Sartori from October 
 
         1985 until August 31, 1986, performing laundry and housekeeping 
 
         duties. Such duties included the pushing of heavy laundry carts 
 
         and the loading and unloading of these carts.  She was terminated 
 
         by Sartori following her alleged work injury for an inability to 
 
         physically perform assigned work.  Sartori denied claimant's 
 
         request for medical leave of absence at that time.  Claimant 
 
         indicated in her report of injury completed in December of 1986 
 
         that she earned $4.57 per hour at the time of the alleged injury. 
 
         According to her supervisors at Sartori, claimant was only 
 
         guaranteed 48 hours per two week pay period but, that at the time 
 
         of the alleged injury, she was "pretty much" full time.  Evidence 
 
         was submitted by claimant of her wages over a 13 week period 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         prior to her alleged injury.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Prior to her alleged work injury, claimant had mental health 
 
         problems and was diagnosed by a psychiatrist, Marvin F. Piburn, 
 
         M.D., as suffering from panic disorder and depression.  At the 
 
         time of the injury, she was receiving treatment consisting of 
 
         medication and counseling from a clinical psychologist.  Claimant 
 
         also has A heart condition called a mitral valve prolapse which 
 
         is, according to Dr. Piburn, associated with panic attacks.
 
         
 
              All of claimant's superiors and fellow workers at Sartori 
 
         felt that claimant was a cooperative, good worker and a honest 
 
         person.  Claimant admitted that she did not immediately report 
 
         her work injury.  Claimant mentioned having a sore back in August 
 
         of 1986 to a fellow employee but that employee testified that 
 
         claimant denied it occurred at work.  Claimant's superiors 
 
         testified that claimant was informed of their rules requiring 
 
         that all employees immediately report work injuries to the 
 
         Sartori emergency room.  However, a fellow employee testified 
 
         that it was not unusual for employees at Sartori to fail to 
 
         report an injury to the emergency room when they felt that the 
 
         injury was not serious.  Claimant testified that she was fearful 
 
         of her job if she reported a work limitation due to an injury and 
 
         this fear immediately after the injury is verified by her mental 
 
         health counselors and a fellow,employee.  Dr. Piburn notes that 
 
         this fear apparently was real since she was indeed fired after 
 
         the injury. Claimant also explained that she did not immediately 
 
         seek medical treatment at the Sartori emergency room because she 
 
         felt that the problem was only temporary.
 
              Claimant testified that on or about August 21, 1986, while 
 
         kneeling on all fours to scrub out a carpet spot at Sartori, she 
 
         felt a "strain" in her low back.  She kept working that day but 
 
         the next morning she said that she had a "catch" in her back. 
 
         During the remainder of the work week, claimant says that she 
 
         attempted to alleviate her low back pain with hot baths.  
 
         However, claimant said that the pain grew worse and she began to 
 
         have great difficulty in bending and lifting at work.  Claimant 
 
         said that she finally sought treatment at the Sartori emergency 
 
         room on August 31, 1986.  Claimant said that she was told by 
 
         emergency room personnel that she had just "over worked her 
 
         muscles." Anti-inflammatory medications were prescribed for her 
 
         use by emergency room physicians.  Claimant said that she was 
 
         referred by these physicians to her own family physician for 
 
         follow-up care.
 
         
 
              Claimant testified that she continued working despite her 
 
         worsening low back pain.  Due to claimant's lack of financial 
 
         resources, when treatment by her family physician failed to 
 
         alleviate her pain, she was referred to the University of Iowa 
 
         Hospitals and Clinics, Department of Neurology, for evaluation. 
 
         University Hospitals apparently provide services at no cost to 
 
         financially needy individuals.  After testing, physicians at the 
 
         University of Iowa diagnosed that claimant was suffering from a 
 
         bulging disc in her lower spine and recommended that she stay off 
 
         work.  It was at this time claimant applied for a medical leave 
 
         of absence and it was denied by Sartori and she was subsequently 
 
         terminated.  Claimant has not been employed since that time.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant had prior back problems.  In 1981, after performing 
 
         sit-ups, claimant received treatment for several weeks for back 
 
         strain.  Claimant testified that these problems cleared up and 
 
         she had no further problems with her back between 1981 and her 
 
         alleged work injury in this case.  Claimant was in an auto 
 
         accident in 1980 which involved her neck and shoulder.  There is 
 
         no evidence submitted to suggest that the low back was involved 
 
         at that time.
 
         
 
              In cross-examination, claimant admitted that she performed a 
 
         considerable amount of housework at home but the evidence 
 
         indicates that this was not as demanding as the work at Sartori. 
 
         Claimant was adamant in her testimony that her pain began on the 
 
         day of the alleged injury and not before or after.
 
         
 
              Claimant was examined by Arnold E. Delbridge, M.D., an 
 
         orthopedic surgeon, on November 25, 1987.  According to Dr. 
 
         Delbridge, claimant has a 12.percent body as a whole permanent 
 
         partial impairment due to her low back injury at Sartori and he 
 
         recommended physical restrictions against heavy jobs and 
 
         recommended that she perform only sedentary type of employment 
 
         where standing and sitting is limited to five or six hours over 
 
         an eight hour day.  William Robb, M.D., another orthopedic 
 
         surgeon, examined claimant in September 1988, and testified by 
 
         deposition in this case.  According to Dr. Robb, claimant has no 
 
         permanent partial impairment but is limited in her physical 
 
         activity by her lack of conditioning since the work injury.  Dr. 
 
         Robb stated that claimant is convinced that she is seriously 
 
         injured and overly compensates by a lack of activity which 
 
         results in restricted body motions.  This problem is aggravated 
 
         by her lack of intelligence and education superimposed upon a 
 
         prior existing weak mental state.  Dr. Robb said that only a very 
 
         aggressive action can break what he terms "a cycle of chronic 
 
         pain syndrome."
 
         
 
              Claimant's psychiatrist, Dr. Piburn, also gave deposition 
 
         testimony.  Dr. Piburn believes that claimant is not mentally and 
 
         physically able to perform employment and that the precipitating 
 
         event was the back injury at Sartori in August 1986.  Before that 
 
         time, despite panic attacks and depression, she overcame these 
 
         problems and was able to perform employment activities to the 
 
         satisfaction of her supervisors at Sartori.  However, the injury 
 
         and resulting physical restrictions have aggravated her mental 
 
         state to the extent that she is now mentally unable to perform 
 
         duties of employment.  According to Dr. Piburn, claimant's 
 
         situation is greatly aggravated by her lack of intelligence and 
 
         education.
 
              
 
              Claimant was evaluated by the Iowa Vocational Rehabilitation 
 
         Services personnel and her file was closed by this state agency 
 
         due to a lack of potential for vocational rehabilitation.  
 
         Claimant has been also evaluated by Marian Jacobs, a private 
 
         vocational rehabilitation consultant with several years of 
 
         experience in the field.  According to Jacobs, claimant is not 
 
         employable and will remain unemployable until her back condition 
 
         improves; her mental problems are controlled; and, her illiteracy 
 
         is overcome.  Jacobs believes that claimant does have a serious 
 
         disability as a result of her mental problems.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant's only past work experience has been in 
 
         intermittent, unskilled housekeeping work.  Claimant has attended 
 
         a reading improvement course but the record is unclear as to the 
 
         success of this venture.
 
         
 
              Claimant's appearance and demeanor at hearing and those of 
 
         her witnesses indicated that all were testifying truthfully.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              A finding that claimant and her witnesses are credible will 
 
         be made as credibility of claimant and her witnesses is clearly 
 
         at issue with reference to the circumstances of her injury, her 
 
         past physical and mental history, and her self-described physical 
 
         and intellectual shortcomings.
 
         
 
                I.  Claimant has the burden of proving by a preponderance 
 
         of the evidence that claimant received an injury which arose out 
 
         of and in the course of employment.  The words "out of" refer to 
 
         the cause or source of the injury.  The words "in the course of" 
 
         refer to the time and place and circumstances of the injury.  See 
 
         Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); 
 
         Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 
 
         (1955).  An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler v. United States Gypsum Co., 252 Iowa 
 
         613, 620, 106 N.W.2d 591 (1960) and cases cited therein.
 
         
 
              Given claimant's credible account of the injury and when she 
 
         first experienced back pain, claimant has shown a work injury.  
 
         The fighting issue in this case is the causal connection of this 
 
         work injury to her much more serious disabilities.
 
         
 
               II.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American, Inc., 
 
         290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
         288 N.W.2d 181 (Iowa 1980).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient along to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Asse 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). 
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In the case sub judice, claimant has shown a permanent 
 
         disability based upon both physical limitations and psychological 
 
         problems.  With reference to permanent physical impairment, there 
 
         was conflicting views between the two orthopedic surgeons, Dr. 
 
         Delbridge and Dr. Robb.  Although Dr. Robb testified extensively 
 
         by deposition, his views are confusing.  He initially stated that 
 
         claimant was not experiencing pain radiating to other parts of 
 
         her body but later stated that her pain was indeed radiating into 
 
         her legs, a significant orthopedic finding in the experience of 
 
         the undersigned.  Also, he stated that one of the reasons he felt 
 
         that claimant's physical problems were not serious was that an 
 
         electrical device called a TENS unit was not helpful to her.  He 
 
         explains that had she had significant nerve involvement, such a 
 
         unit should have helped alleviate her pain.  However, other 
 
         physicians and her mental health counselor stated that claimant 
 
         reported to them improvement from the use of such a device and 
 
         that she had to discontinue its use because she could not afford 
 
         the unit.  Therefore, Dr. Delbridge's views should be given the 
 
         greater weight with reference to his evaluation of permanent 
 
         partial impairment.
 
         
 
              With reference to claimant's mental disability, two 
 
         physicians rendered opinions as to claimant's mental state 
 
         following the injury, Dr. Piburn and Dr. Robb.  Although Dr. Robb 
 
         did not feel that the injury resulted in permanent impairment, he 
 
         recognized that the injury set up a psychological pain syndrome 
 
         in which claimant is overly fearful of reinjury and overly 
 
         protective of her activity.  This, according to Dr. Robb, causes 
 
         deconditioning and results in the physical limitations he found 
 
         in his examination.  However, his views as to the impact of the 
 
         injury on claimant's mental state cannot be given the same weight 
 
         as Dr. Piburn who is a psychiatrist specializing in the field of 
 
         psychological problems.  However, both Dr. Robb and Dr. Piburn 
 
         described a scenario where work injury precipitated an 
 
         aggravation of a prior mental weakness.  Both agreed that this 
 
         aggravation was further worsened by claimant's lack of 
 
         understanding of her problems due to a lack of intelligence and 
 
         education.  Dr. Piburn explains that claimant was a fragile 
 
         person at the time of the work injury but that she was able to 
 
         cope and to work effectively in her job.  However, the physical 
 
         injury set up additional stresses which was "the last straw and 
 
         claimant is no longer able to work."
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              It is uniformly held throughout this country that where a 
 
         physical trauma has induced a mental injury which increases 
 
         disability that the full disability is compensable.  There is no 
 
         additional legal test or standard to demonstrate as a condition 
 
         precedent to compensability which would be the case if the 
 
         disability had been solely induced by mental injury.  See Larson, 
 
         Workers' Compensation Law, Vol. 1B, section 42.22(a), pp. 7-601. 
 
         See also Deaver v. Armstrong Rubber Co., 170 N.W.2d 455 (Iowa 
 
         1969).  Furthermore, the extent of a preexisting psychological 
 
         weakness or neurotic tendency does not lessen the compensability 
 
         of an injury which precipitates a disabling neurosis.  Larson 
 
         section 42.22(b), p. 7-621; Leffler v. Wilson and Company, 320 
 
         N.W.2d 634 (Iowa App. 1982).
 
         
 
              Therefore, due primarily to the testimony of Dr. Piburn and 
 
         what appears to be a recognition at least of a psychological 
 
         problem by Dr. Robb, the preponderance of the evidence 
 
         demonstrates a causal connection between the work injury of 
 
         August 1986 and claimant's physical and mental disabilities.
 
         
 
              III.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  As the claimant has shown that 
 
         the work injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors. These factors include the employee's medical condition 
 
         prior to the injury, immediately after the injury and presently; 
 
         the situs of the injury, its severity and the length of healing 
 
         period; the work experience of the employee prior to the injury, 
 
         after the injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  See 
 
         Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 
         28, 1985).
 
         
 
              Claimant argues for application of the "odd-lot" doctrine. 
 
         This doctrine allows the claimant to establish a prima facie case 
 
         for unemployability and entitlement to permanent total disability 
 
         benefits from a factual showing of a reasonable but unsuccessful 
 
         effort to find suitable work.  Such a showing automatically 
 
         shifts the burden of going forward to the defendants on the issue 
 
         of availability of suitable work.  If defendants fail to go 
 
         forward, claimant is therefore automatically entitled as a matter 
 
         of law to an award of permanent total disability.  See Guyton v. 
 
         Irving Jensen Company, 373 N.W.2d 101, 105 (Iowa 1985).  However, 
 
         the industrial commissioner has directed that this doctrine 
 
         cannot be applied by a deputy commissioner without a showing of a 
 
         reasonable effort to secure suitable employment.  Collins v. 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Friendship Village, Inc., case number 679258 (Appeal Decision 
 
         filed October 31, 1988; Pyle v. Carstensen Freight Lines, Inc., 
 
         case number 753661 (Appeal Decision filed July 27, 1987).  
 
         Claimant testified in this case that she has not looked for work 
 
         because she does not know what she could do.  Therefore, as such 
 
         a showing of an employment search was not made by claimant, the 
 
         automatic burden shifting doctrine or the odd-lot doctrine cannot 
 
         be applied in this case.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              However, the odd-lot doctrine is applicable only when 
 
         claimant is capable, both physically and mentally, of employment. 
 
         In this case, claimant has shown by the greater weight of the 
 
         evidence that she no longer is capable of employment.  The State 
 
         Department of Vocational Rehabilitation Services has closed her 
 
         file due to her hopelessness of her situation.  Jacobs, the only 
 
         vocational rehabilitation consultant to testify in this 
 
         proceeding, opines that claimant is not employable due to her 
 
         physical and mental problems.  Dr. Piburn indicates that due to 
 
         her mental state and the illiteracy, she is not employable.  All 
 
         of these expert opinions as to claimant's employability are 
 
         uncontroverted in the record.
 
         
 
              Although claimant's mental condition before the work injury 
 
         was far from excellent, she was able to fully perform physical 
 
         tasks involving heavy lifting, repetitive lifting, bending, 
 
         twisting, stooping and prolonged standing and sitting.  Her 
 
         disability at the present time prevents her from returning to the 
 
         work for which she is best suited given her lack of intelligence, 
 
         lack of education and past work experience.  Claimant may be able 
 
         to perform some sedentary work but her low intelligence and lack 
 
         of education at the present time is an impossible obstacle to 
 
         hurtle without very aggressive vocational and physical 
 
         rehabilitation concluding formalized education.  The success of 
 
         this venture is very speculative at this point in time.  If 
 
         indeed this occurs in the future, this agency is available to 
 
         reopen and review this award.
 
         
 
              Claimant is relative young at 36 years of age and should be 
 
         the most productive years of her life.  However, her youth is of 
 
         little advantage unless she overcomes her physical and mental 
 
         problems and most importantly, her illiteracy.
 
         
 
              Finally, it is recognized that claimant has not been 
 
         provided long-term vocational rehabilitation efforts by 
 
         defendants and defendants have not offered any employment to 
 
         claimant to return to work.  This is strong evidence of 
 
         claimant's lack of employability.  However, should the situation 
 
         change in the future, again this agency is available to reopen 
 
         and review this case.
 
         
 
              Admittedly, there is some degree of prior existing 
 
         disability and impairment due to claimant's mental problems 
 
         before the injury.  However, this agency has long recognized that 
 
         permanent total disability is not apportionable because there is 
 
         no logical and rationale method to apportionate award for an 
 
         indefinite period of time.  Also, such an apportionment is 
 
         inconsistent with the purposes of permanent total disability 
 
         benefits which are designed to assist injured workers and their 
 
         dependents who are rendered incapable of any employment by a work 
 
         injury.
 
         
 
              After examination of all the factors, it is found as a 
 
         matter of fact that claimant has suffered a 100 percent loss in 
 
         her earning capacity from her work injury of August 21, 1986.  
 
         Based upon such a finding, claimant is entitled as a matter of 
 
         law to permanent total disability benefits under Iowa Code 
 
         section 85.34(3) which is an award of weekly benefits from the 
 
         date of injury for an indefinite time into the future.  Should 
 
         her situation remain unchanged, these benefits will last for her 
 
         lifetime.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
               IV.  Pursuant to Iowa Code section 85.27, claimant is 
 
         entitled to payment of reasonable medical expenses incurred for 
 
         treatment of a work injury.  However, claimant is entitled to an 
 
         order of reimbursement only if claimant has paid those expenses. 
 
         Otherwise, claimant is entitled to only an order directing the 
 
         responsible defendants to make such payments directly to the 
 
         providers.  See Krohn v. State, 420 N.W.2d 463 (Iowa 1988).  The 
 
         parties stipulated that the requested expenses were causally 
 
         connected to the physical and emotional problems which were 
 
         claimed to be work related in this proceeding.  As it will be 
 
         found that the work injury is a cause of these conditions, it 
 
         will be found that the medical expenses requested are causally 
 
         connected to this work injury and defendants will be ordered to 
 
         pay them accordingly.
 
         
 
                V.  With reference to the issue of rate of claimant's 
 
         compensation, the dispute involves not only the amount of gross 
 
         wages to be utilized in the commutation, but which subsection 
 
         under Iowa Code section 85.36 should be utilized to compute the 
 
         rate.  Her supervisors at Sartori testified that claimant was 
 
         only guaranteed 48 hours for a two week pay period but that she 
 
         was "pretty much full time" at the time of the work injury.
 
         
 
              With reference to computing rate of weekly compensation., 
 
         the introductory paragraph of Iowa Code section 85.36 states as 
 
         follows:
 
         
 
              ...Weekly earnings means gross salary, wages, or earnings of 
 
              an employee to which such employee would have been entitled 
 
              had the employee worked the customary hours for the full pay 
 
              period in which the employee was injured, as regularly 
 
              required by the employee's employer for the work or 
 
              employment for which the employee was employed,....
 
         
 
              Thereafter, various subsections are contained in Iowa Code 
 
         section 85.36 which describe numerous alternative methods to 
 
         arrive at gross weekly earnings.  In the case at bar, many 
 
         subsections could apply.  As claimant customarily worked less 
 
         than 40 hours each week, the rate could be computed under Iowa 
 
         Code section 85.36(10) which annualizes income from all sources 
 
         of employment for "so-called" part-time employees.  As claimant 
 
         received her check every two weeks, subparagraph 2 may apply 
 
         which divides by two the biweekly pay.  As claimant was paid on a 
 
         hourly basis, Iowa Code section 85.36(6) can be utilized which 
 
         would average the earnings over the last 13 respective weeks 
 
         before the work injury.
 
         
 
              The primary purpose of workers' compensation statutes is to 
 
         benefit workers and workers' dependants and is to be interpreted 
 
         liberally with view toward that objective.  Caterpillar Tractor 
 
         Co. v. Shook, 313 N.W.2d 503 (Iowa 1981).  Consequently, given 
 
         the intent set forth in the introductory paragraph of Iowa Code 
 
         section 85.36, use of any method of computation which would not 
 
         result in a reasonable approximation of claimant's customary 
 
         earnings from employment would be contrary to the expressed 
 
         intent and purposes of the statute.  The various subsections are 
 
         not a hierarchy of choices (the first one to apply is to be 
 
         applied first).  Likewise, use of a particular subsection is not 
 
         dictated by how or when a person is paid or how much he or she 
 
         works in a given work week.  The subsections are only various 
 
         alternatives which may be utilized by this agency to arrive at 
 
         customary earnings.  Foster v. Plaza Restaurant and Lounge, 
 
         Arbitration Decision filed February 27, 1969.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Given the evidence presented, the best method to arrive at 
 
         claimant's customary earnings is to use subsection 6 of code 
 
         section 85.36 and average the claimant's earnings over a 13 week 
 
         period prior to the injury.  This.results in gross weekly 
 
         earnings of $172.40 per week.  Utilizing this figure in computing 
 
         the rate under the commissioner's rate booklet for an injury in 
 
         August 1986, results in a rate of compensation of $121.26 per 
 
         week.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant and her witnesses were credible.
 
         
 
              2.  On August 21, 1986, claimant suffered an injury to the 
 
         low back which arose out of and in the course of her employment 
 
         with Sartori.  This injury occurred while scrubbing a spot in 
 
         floor carpeting.  Claimant had been doing heavy work that work 
 
         week consisting of pushing and loading a heavy laundry cart. 
 
         Claimant felt a sudden strain in her back while on all fours and 
 
         reaching.  This pain was continuous from this event and became 
 
         worse over time until she sought medical treatment from the 
 
         Sartori emergency room physicians.  Claimant did not report the 
 
         injury before going to the emergency room because she felt that 
 
         the injury was only minor and would heal.
 
         
 
              3.  At the time of the work injury, claimant had serious 
 
         emotional psychological problems with panic attacks and 
 
         depression.  Claimant also had a heart condition called a mitral 
 
         valve prolapse which is associated with the panic attacks.  She 
 
         was under medication and receiving regular counseling for this 
 
         disorder.  However, despite these problems she was able to work 
 
         and her supervisors at Sartori felt she was a good dependable 
 
         worker before the work injury.
 
         
 
              4.  Claimant had a back problem following an exercising 
 
         program in 1981 but she fully recovered from this injury.  She 
 
         had no low back problems between 1981 and the work injury herein.
 
         
 
              5.  Claimant is functionally illiterate with only a fourth 
 
         grade education.  Claimant has an IQ of 64 which is in the 
 
         mid-retardation range.
 
         
 
              6.  The work injury of August 21, 1986, was a cause of a 12 
 
         percent permanent functional physical impairment to the body as a 
 
         whole and of permanent restrictions on her physical activity 
 
         consisting of no heavy work and working only in sedentary 
 
         employment where the amount of prolonged sitting and standing is 
 
         restricted.
 
         
 
              7.  The work injury of August 21, 1986, and resulting 
 
         physical restrictions, is a significant cause of mental 
 
         impairment which renders claimant incapable of employment.  The 
 
         work injury and resulting functional impairment precipitated 
 
         additional stress which was aggravated by a lack of understanding 
 
         due to limited intelligence and insufficient education.  The work 
 
         injury was the last straw in a sequence of events leading to 
 
         complete unemployability.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              8.  The work injury of August 21, 1986, and resulting 
 
         physical and mental functional impairments is a cause of a 100 
 
         percent loss of earning capacity.  Claimant is 36 years of age 
 
         but illiterate and with little formal education.  Claimant also 
 
         is mildly retarded.  Claimant is unable to read multiple syllable 
 
         words.  Claimant is able to communicate only orally.  Claimant 
 
         has a lack of understanding as to the nature of her disability 
 
         and only very aggressive rehabilitation activity will improve her 
 
         physical condition, her emotional state and her illiteracy.  To 
 
         date, no such effort has been made and it is not contemplated 
 
         that her disability will likely change in the future.  Sartori 
 
         hospital has not attempted to return claimant to work at their 
 
         institution or any other place of employment.  Claimant has not 
 
         worked in any capacity since September 9, 1986.  Claimant was 
 
         terminated by Sartori Hospital as a result of an inability to 
 
         work due to her work injury.
 
         
 
              9.  The medical expenses requested in the prehearing report 
 
         which total $6,103.06 are fair and reasonable and were incurred 
 
         by claimant for reasonable and necessary treatment of her work 
 
         injury.
 
         
 
              10.  Claimant's gross rate of weekly compensation at the 
 
         time.of the work injury herein is $172.40 per week which is the 
 
         average earnings over a 13 week period prior to the work injury 
 
         of August 21, 1986.
 
         
 
              11.  The costs requested in the prehearing report are 
 
         reasonable and were paid by claimant.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Claimant is entitled under law to the benefits awarded 
 
         below.
 
         
 
                                      ORDER
 
         
 
              1.  Defendants shall pay to claimant permanent total 
 
         disability benefits for an indefinite period of time during the 
 
         period of her disability at the rate of one hundred twenty-one 
 
         and 26/100 dollars ($121.26) per week from September 9, 1986.
 
         
 
              2.  Defendants shall pay the medical expenses listed in the 
 
         prehearing report but only to claimant if she has paid those 
 
         expenses.  Otherwise, defendants are directed to pay the provider 
 
         directly subject to any attorney lien claimant's attorney may 
 
         have for his services.
 
         
 
              3.  Defendants shall receive credit for previous payment of 
 
         benefits under nonoccupational group insurance plan, if 
 
         applicable and appropriate under Iowa Code section 85.38(2).
 
         
 
              4.  Defendants shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              5.  Defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33 and specifically 
 
         those costs requested by claimant in the prehearing report in the 
 
         amount of six hundred and forty-five and no/100 dollars 
 
         ($645.00).
 
         
 
              6.  Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 22nd day of May, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       LARRY P. WALSHIRE
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert D. Fulton
 
         Attorney at Law 
 
         616 Lafayette St.
 
         P. 0. Box 2634
 
         Waterloo, Iowa  50704-2634
 
         
 
         Mr. Jay P. Roberts
 
         Attorney at Law
 
         528 West Fourth St.
 
         P. 0. Box 1200
 
         Waterloo, Iowa  50704
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
                                                 1108.20; 1804; 3001
 
                                                 Filed May 19, 1989
 
                                                 LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LINDA GREER,
 
         
 
              Claimant,
 
                                                 File No. 840641
 
         vs.
 
                                              A R B I T R A T I 0 N
 
         SARTORI MEMORIAL HOSPITAL,
 
                                                 D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         EMPLOYERS MUTUAL COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1108.20 - Psychological Injury (physical--mental)
 
         
 
              It was held in the decision that no additional legal 
 
         standard is necessary to establish compensability of a 
 
         psychological injury induced by physical trauma.
 
         
 
         1804 - Disability
 
         
 
              A permanent total disability was awarded for physical and 
 
         emotional inability to work.
 
         
 
         3001 - Gross Rate Determinations
 
         
 
              It was held that the method of payment or amount of work 
 
         performed in a given pay period does not dictate which subsection 
 
         method is to be used in determining gross weekly rate under Iowa 
 
         Code section 85.26.  Given the purposes of the workers' 
 
         compensation acts and the expressed intent contained in the 
 
         introductory language of the code section, this agency should use 
 
         that subsection method which in computing rate of compensation 
 
         which most reasonably approximates claimant's "customary" weekly 
 
         rate had the claimant worked the pay period during the week of 
 
         injury.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROLAND BOUCHARD,              :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 840767
 
            vs.                           :
 
                                          :
 
            DEPARTMENT OF COMMERCE,       :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on October 8, 1990, in 
 
            Des Moines, Iowa.  This is a proceeding in arbitration 
 
            wherein claimant seeks compensation for permanent partial 
 
            disability benefits as a result of a November 20, 1986 
 
            injury.  The record in the proceeding consists of the 
 
            testimony of the claimant and joint exhibits 1 and 3 through 
 
            7; and defendants' exhibits A through J.
 
            
 
                                      issues
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether claimant's permanent disability, if any, is 
 
            causally connected to his November 20, 1986 injury; and,
 
            
 
                 2.  The extent of claimant's permanent disability.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 44-year-old who finished the eighth 
 
            grade.  Claimant related his military service and the jobs 
 
            over the years up to his alleged injury of November 20, 
 
            1986.  These jobs involved cooking, carpentry work (such as 
 
            framing houses), delivering products, putting business forms 
 
            together, and measuring, estimating and selling carpet.  In 
 
            the early 1980's, claimant began driving and working for 
 
            various trucking companies.  Depending on the load and the 
 
            customers, claimant had to load and unload the 
 
            tractor-trailer in some instances as much as 95 percent of 
 
            the time to as little as no loading and unloading.
 
            
 
                 Claimant worked for defendant employer during the years 
 
            1984, 1985 and 1986, making liquor hauls 80 percent of the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            time and worked in the warehouse 20 percent of the time.  At 
 
            the same time claimant was working for defendant employer, 
 
            claimant was also working for Lenertz Trucking as an 
 
            over-the-road driver, making more money at this job than 
 
            with the state.
 
            
 
                 On November 20, 1986, claimant fell from a ladder while 
 
            working for defendant employer.  Claimant missed 
 
            approximately four days of work.  Claimant returned to work 
 
            and worked for the state continuously until January of 1987.  
 
            Claimant contends he returned to work because he needed the 
 
            money but was still having back spasms.  Claimant then 
 
            returned to Lenertz (also known as DSI) full-time in January 
 
            of 1987.  Claimant said he continued to have problems and 
 
            saw the doctor again in April 1987 and again in late July 
 
            1987, at which time the doctor took claimant off work.  
 
            Claimant acknowledged he filed a job-related workers' 
 
            compensation claim in April 1987 for an injury against 
 
            Lenertz, File No. 910540, and said he was paid for his time 
 
            off by Lenertz' workers' compensation carrier.  When asked 
 
            why this wasn't paid by the state, claimant said the state 
 
            contended it was caused by his driving for Lenertz which 
 
            aggravated his back.
 
            
 
                 Claimant then returned to work for Lenertz in July 1987 
 
            and contends he was to do no lifting and would hire someone 
 
            to unload his truck, if necessary.  Claimant said he 
 
            unloaded and loaded his truck himself prior to November 
 
            1986.
 
            
 
                 Claimant was in another accident on January 15, 1988, 
 
            when the truck he was driving jackknifed and he took to the 
 
            ditch.  He indicated he aggravated his back but would not 
 
            say he hurt it.  He did file another workers' compensation 
 
            claim for this incident (File No. 910542).
 
            
 
                 Claimant was in another accident on November 23, 1988, 
 
            when he caught the truck he was driving on a cement wall 
 
            resulting in claimant twisting himself.  Although claimant 
 
            seems to indicate he felt no different after this accident, 
 
            he said he did go off work in December 1988 because he was 
 
            hurting and was off work until February 1989.  Claimant then 
 
            returned to Lenertz and worked with them until August 1989.  
 
            Claimant's reason for leaving this company was over the 
 
            miles they were routing for him and he needed to see a 
 
            doctor.  He filed a workers' compensation claim for this 
 
            injury also (File No. 910541).
 
            
 
                 Claimant related his job since leaving Lenertz in 
 
            February 1989.  One job particularly involved driving a 
 
            truck and loading and unloading televisions and appliances 
 
            with another helper for Archer TV.  After leaving that job, 
 
            claimant also drove for BTI beginning August 17, 1989.  
 
            Claimant never told this company that he had any back 
 
            trouble and did pass the DOT truckers' examination.  
 
            Claimant was fired from this job allegedly over an argument 
 
            concerning days off.  Claimant received unemployment as a 
 
            result of this incident.
 
            
 
                 On cross-examination, claimant admitted he had no work 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            restrictions until July 1987, which was after he started 
 
            working for Lenertz Trucking.  He also admitted that his 
 
            truck route in Pennsylvania involved a rough, rough road and 
 
            this aggravated his back and contributed to claimant's claim 
 
            against Lenertz.  Claimant said he had no low back or 
 
            shoulder problems prior to November 20, 1986.
 
            
 
                 K.E. Check, M.D., indicated claimant's November 20, 
 
            1986 injury aggravated claimant's degenerative changes 
 
            occurring in claimant's back at the T12-L1 area.  He also 
 
            said claimant's second accident aggravated claimant's 
 
            preexisting condition (Joint Exhibit 1(3)).
 
            
 
                 It is obvious when claimant saw S. Randy Winston, M.D., 
 
            in May of 1987, claimant related his November 1986 incident 
 
            and not his recent April 18, 1987 accident.  This attitude 
 
            of the claimant is reflected in the medical records at this 
 
            period of time.
 
            
 
                 A report dated February 1, 1988 by Kevin T. O'Connell, 
 
            M.D., also reflects an incomplete and inaccurate medical and 
 
            accident history for claimant.  It is obvious the doctor's 
 
            conclusions are based on the incorrect history and, 
 
            therefore, result in distorted conclusions (Jt. Ex. 1, pp. 
 
            21-22).
 
            
 
                 On February 1, 1989, Dr. O'Connell wrote another 
 
            report, at which time he obviously had more correct medical 
 
            history (Defendants' Exhibit E).  At that time, claimant 
 
            indicated he thought his symptoms were related to an 
 
            incident around Thanksgiving 1988.
 
            
 
                 The only issues for resolution are the extent of 
 
            claimant's permanent disability and whether any permanent 
 
            disability claimant has is causally connected to his 
 
            November 20, 1986 injury.  The parties agreed claimant had a 
 
            four day healing period.
 
            
 
                 Claimant's medical records prove one thing for sure.  
 
            Claimant was not truthful when relating his medical history 
 
            and this claimant has had several incidents that have 
 
            resulted in medical treatment since his November 20, 1986 
 
            injury.  Claimant has a preexisting degenerative condition.  
 
            The November 20, 1986 incident mildly aggravated his 
 
            degenerative condition.  His condition was also materially 
 
            aggravated by subsequent accidents in April, January and 
 
            November of 1988.  It was only after claimant's accidents 
 
            beginning in April 1987 that claimant began missing time 
 
            from work.  There is no need to dwell on claimant's medical 
 
            or the facts in this case much further.
 
            
 
                 Claimant has failed to show or carry his burden that he 
 
            has any permanent impairment or disability from his November 
 
            20, 1986 injury and the undersigned so finds.  The 
 
            undersigned further finds that claimant's current condition 
 
            is not the result of his November 20, 1986 injury.  It is a 
 
            result of incidents occurring after November 20, 1986, which 
 
            events have no connection or relationship to claimant's 
 
            November 20, 1986 injury.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 Claimant has no industrial disability resulting from 
 
            his November 20, 1986 injury.
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of November 
 
            20, 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).
 
            
 
                 The Iowa Supreme Court cites, apparently with approval, 
 
            the C.J.S. statement that the aggravation should be material 
 
            if it is to be compensable.  Yeager v. Firestone Tire & 
 
            Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. 
 
            Workmen's Compensation sec. 555(17)a.
 
            
 
                 An employee is not entitled to recover for the results 
 
            of a preexisting injury or disease but can recover for an 
 
            aggravation thereof which resulted in the disability found 
 
            to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299; 
 
            Ziegler v. United States Gypsum Co., 252 Iowa 613, 106 
 
            N.W.2d 591 (1960).  See also Barz v. Oler, 257 Iowa 508, 133 
 
            N.W.2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 
 
            Iowa 724, 254 N.W. 35 (1934).
 
            
 
     
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            It is further concluded that
 
            
 
                 Claimant has no impairment as a result of his November 
 
            20, 1986 injury.
 
            
 
                 Claimant has a preexisting degenerative back condition 
 
            which was not materially aggravated, accelerated, worsened 
 
            or lighted up by his November 20, 1986 injury.
 
            
 
                 Claimant has no industrial disability as a result of 
 
            his November 20, 1986 injury.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant take nothing from these proceedings.
 
            
 
                 That both parties shall divide the costs equally, 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to Division of Industrial Services Rule 343-3.1
 
            
 
                 Signed and filed this _____ day of November, 1990.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr David D Drake
 
            Attorney at Law
 
            West Towers Office Complex
 
            1200 35th St  Ste 500
 
            West Des Moines IA 50265
 
            
 
            Mr Dean A Lerner
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg
 
            LOCAL
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1402.40
 
                      Filed November 5, 1990
 
                      Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROLAND BOUCHARD,              :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 840767
 
            vs.                           :
 
                                          :
 
            DEPARTMENT OF COMMERCE,       :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            5-1402.40
 
            Claimant failed to prove his work injury caused any 
 
            permanent impairment of industrial disability.