BEFORE THE IOWA INDUSTRIAL COMMISSION
 
        
 
        
 
        LYLE R. CORNWELL,
 
        
 
             Claimant,                           File No. 841129
 
        
 
        vs 
 
                                                    A P P E A L
 
        GRIFFIN WHEEL COMPANY,
 
                                                   D E C I S I O N
 
             Employer,
 
             Self-Insured,                           F I L E D
 
             Defendant.
 
                                                     JUN 16 1989
 
                       
 
                                                 INDUSTRIAL SERVICES
 
        
 
                                 STATEMENT OF THE CASE 
 
        
 
             Claimant appeals from an arbitration decision denying 
 
             further permanent partial disability benefits as the result of an 
 
             alleged injury on December 12, 1986.
 
        
 
            The record on appeal consists of the transcript of the 
 
        arbitration hearing and claimant's exhibits 1 through 6. Both 
 
        parties filed briefs on appeal.
 
        
 
                                      ISSUES
 
        
 
             Claimant states the following issue on appeal: Should 
 
             claimant have been entitled to weekly benefits for permanent 
 
             disability?
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
             The arbitration decision adequately and accurately reflects 
 
             the pertinent evidence and it will not be set forth herein.
 
        
 
        
 
                                 APPLICABLE LAW
 
        
 
             The citations of law in the arbitration decision are 
 
             appropriate to the issues and the evidence.
 
        
 
                                      ANALYSIS
 
        
 
             On appeal claimant urges that the deputy improperly denied 
 
             further permanent partial disability benefits. The thrust of 
 
             claimant's argument is that since claimant has now had more of 
 
             his medial meniscus removed, he has suffered further impairment.
 
        
 
             Claimant's own doctor testified that claimant's rating of 
 
             impairment of 10 percent of the left leg has not changed as a 
 
             result of the additional surgery that resulted in more of the 
 
             medial meniscus being removed. A surgical procedure, even one 
 
             resulting in removal of a body part, does not necessarily result 
 
             in further impairment. Removal of a portion of the medial 
 
             meniscus followed by removal of another portion may result in no 
 

 
        
 
 
 
 
 
             additional loss of function. Don K. Gilchrist, M.D.'s deposition 
 
             answers confirm this.
 
        
 
            Claimant's subjective description of a change in symptoms, 
 
        accompanied by his father's testimony of a change in physical 
 
        performance by claimant, has been considered. Contrary to 
 
        claimant's assertion, the testimony of claimant's father was 
 
        considered by the deputy and specifically mentioned in the 
 
        arbitration decision. Claimant's injury involves a scheduled 
 
        member only and does not extend to the body as a whole. 
 
        Industrial disability factors are not relevant, as claimant's 
 
        entitlement to benefits is determined by his functional 
 
        impairment as a result of his injury. Functional impairment is 
 
        primarily the subject of medical testimony. Claimant's own 
 
        doctor has testified that claimant's permanent physical 
 
        impairment after the second surgery did not increase. This 
 
        evidence is not controverted by any other medical testimony. 
 
        Claimant bears the burden of proving his entitlement to further 
 
        benefits. Claimant has failed to carry that burden.
 
        
 
                                 FINDINGS OF FACT
 
        
 
             1. On December 12, 1986, claimant suffered an injury to his 
 
             left leg which arose out of and in the course of employment 
 
             consisting of a torn cartilage or medial meniscus in the left 
 
             knee.
 
        
 
            2. The work injury of December 12, 1986, was a cause of a 
 
        temporary period of total disability from work.
 
        
 
            3. As a result of a prior work injury in 1976 consisting of 
 
        a torn medial meniscus, claimant suffered a 10 percent permanent 
 
        partial impairment to the left leg.
 
        
 
            4. Claimant presently has a 10 percent impairment of the 
 
        left leg.
 
        
 
            5. Claimant has not suffered an increase in impairment as a 
 
        result of his injury of December 12, 1986.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
             Claimant has failed to establish by a preponderance of the 
 
             evidence entitlement to additional permanent partial disability 
 
             benefits.
 
        
 
             WHEREFORE, the decision of the deputy is affirmed.
 
             
 
                                      ORDER
 
             
 
             THEREFORE, it is ordered:
 
             
 
             That claimant shall take no additional permanent disability 
 
             benefits from this proceeding.
 
        
 
            That claimant shall pay the costs of this action pursuant to 
 
        Division of Industrial Services Rule 343-4.33.
 
        
 
            Signed and filed this 16th day of June, 1989.
 
        
 
        
 
        
 
        
 
        
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 

 
        
 
 
 
 
 
        
 
        Copies To:
 
        
 
        Mr. James P. Hoffman
 
        Attorney at Law
 
        Middle Road
 
        P.O. Box 1066
 
        Keokuk, Iowa 52632
 
        
 
        Mr. John E. Kultala
 
        Attorney at Law
 
        511 Blondeau Street
 
        Keokuk, Iowa 52632
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LYLE R. CORNWELL,                            File No. 841129
 
         
 
              Claimant,                            A R B I T R A T I O N
 
         
 
         vs.                                          D E C I S I O N
 
         
 
         GRIFFIN WHEEL COMPANY,                          F I L E D
 
         
 
              Employer,                                 MAY 12 1988
 
              Self-Insured,
 
              Defendant.                       IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Lyle R. 
 
         Cornwell, claimant, against Griffin Wheel Company, employer 
 
         (hereafter referred to as Griffin), for workers' compensation 
 
         benefits as a result of an alleged injury on December 12, 1986.  
 
         On March 2, 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 
 
         William Benson. 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.  On December 12, 1986, claimant received an injury which 
 
         arose out of and in the course of employment with Griffin.
 
         
 
              2.  Claimant is not seeking temporary total disability or 
 
         healing period benefits in this proceeding.
 
         
 
              3.  If the injury is found to have caused permanent 
 
         disability, the type of disability is a scheduled member 
 
         disability to the left leg.
 
         
 
                                      ISSUE
 
         
 
              The only issue submitted by the parties in the prehearing 
 
         report is the extent of claimant's entitlement to weekly benefits 
 
         for permanent disability.
 
         
 
                           SUMMARY OF THE EVIDENCE
 
         
 
         
 
                                                
 
                                                         
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  For the sake of brevity, only the evidence most pertinent 
 
         to this decision is discussed.  Whether or not specifically 
 
         referred to in this summary, all of the evidence received at the 
 
         hearing was considered in arriving at this decision.  As will be 
 
         the case in any attempted summarization, conclusions about what 
 
         the evidence offered may show are inevitable.  Such conclusions, 
 
         if any, in the following summary should be considered as 
 
         preliminary findings of fact.
 
         
 
              The fighting issue in this case is whether claimant suffered 
 
         additional permanent impairment as a result of the injury in 
 
         December, 1986.  Claimant testified that on December 12, 1986, 
 
         while lifting a heavy grinding stone at Griffin, his left knee 
 
         "snapped" and "went out" and immediately pain began requiring 
 
         medical treatment.  Claimant was treated by Don K. Gilchrist, 
 
         M.D., an orthopedic surgeon.  Dr. Gilchrist eventually surgically 
 
         repaired the knee after a diagnosis of a torn cartilage or medial 
 
         meniscus.  The surgery consisted of removal of the torn portions 
 
         of the meniscus.
 
         
 
              Claimant admitted that he had prior problems with his left 
 
         knee.  In 1986, while working for another employer, claimant 
 
         twisted his knee causing it to again "go out" or "pop".  Medical 
 
         treatment at that time consisted also of surgery to remove a 
 
         portion of a torn cartilage or medial meniscus.  This surgery was 
 
         performed also by Dr. Gilchrist.  Claimant was last seen by Dr. 
 
         Gilchrist following this first surgery in May, 1977.  Claimant 
 
         had told Dr. Gilchrist when he was first seen that he had first 
 
         injured his left knee while playing high school football 10 years 
 
         earlier.
 
         
 
              Claimant testified that he fully recovered from the first 
 
         knee surgery in 1977 and returned to full duty at work.  Claimant 
 
         also assisted in farming operations and his father testified that 
 
         he observed no loss of use of the left knee after his recovery in 
 
         1977.
 
         
 
              Claimant testified that he now has problems with his left 
 
         knee which he did not have before.  Claimant complains that his 
 
         knee is weaker and still goes out "backwards."  He states that 
 
         unlike before his knee is very sore and stiff at the end of the 
 
         day.  Claimant states that he is careful lifting because he 
 
         cannot trust his knee.  Claimant complains that he cannot kneel 
 
         or climb as before.  He also states that prolonged walking now 
 
         causes difficulties.  He states that he currently uses his right 
 
         leg much more in his job at Griffin then he did before.  
 
         Claimant's current supervisor at Griffin testified that claimant 
 
         is fully able to handle all of the work that is assigned to him 
 
         as a plumber.  The supervisor stated that only recently has he 
 
         complained of weakness in the knee although he admitted that 
 
         claimant is not generally a complainer.
 
         
 
              With reference to the question of whether claimant's 
 
                                                
 
                                                         
 
         condition has changed medically by the injury Dr. Gilchrist 
 
         states as follows:
 
         
 
                   Please be informed that it is my opinion that this 
 
              patient suffered a ten per cent permanent partial impairment 
 
              to his left leg as the result of a "bucket handle" type of 
 
              tear to the medial meniscus in May of 1977.  That was 
 
              successfully treated with appropriate excision of the torn 
 
              "bucket handle" portion of the meniscus.  Further surgery 
 
              was performed in May of 1987 as a result of a re-injury.  It 
 
              was found that the small remaining rim of meniscus had been 
 
              subsequently torn and it was removed resulting in 
 
              essentially a total medial meniscectomy of his left knee.  
 
              He has now since recovered from this second surgery and he 
 
              was released from treatment on April 13, 1987.  It is my 
 
              opinion that the ten per cent permanent partial impairment 
 
              rating of his left leg remains unchanged.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant must establish by a preponderance of the evidence 
 
         the extent of weekly benefits for permanent disability to which 
 
         claimant is entitled.  Permanent partial disabilities are 
 
         classified as either scheduled or unscheduled.  A specific 
 
         scheduled disability is evaluated by the functional method; the 
 
         industrial method is used to evaluate an unscheduled disability. 
 
         Martin v. Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 
 
         (1960); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); 
 
         Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 997 (Iowa 1983). 
 
         When the result of an injury is loss to a scheduled member, the 
 
         compensation payable is limited to that set forth in the 
 
         appropriate subdivision of Code section 85.34(2).  Barton v. 
 
         Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961).  "Loss 
 
         of use" of a member is equivalent to "loss" of the member.  Moses 
 
         v. National Union C.M. Co., 194 Iowa 819, 184 N.W. 746 (1922). 
 
         Pursuant to Code section 85.34(2)(u) the industrial commissioner 
 
         may equitably prorate compensation payable in those cases wherein 
 
         the loss is something less than that provided for in the 
 
         schedule. Blizek v. Eagle Signal Company, 164 N.W.2d 84 (Iowa 
 
         1969).
 
         
 
              From the evidence submitted, claimant has failed to 
 
         demonstrate that his condition has changed since the 1977 
 
         surgery. Admittedly, claimant believes that his knee worsened at 
 
         least from a subjective standpoint.  However, claimant's treating 
 
         physician does not agree and his medical opinions are 
 
         uncontroverted in the record.  The question of permanent partial 
 
         impairment is largely a medical question and this deputy 
 
         commissioner is in no position to second guess the opinions of a 
 
         qualified orthopedic surgeon.
 
         
 
              Despite his lack of success in establishing his claim in 
 
         this proceeding, claimant's case was at least argueable and 
 
         claimant appeared sincere in his testimony.  Therefore, claimant 
 
         will be awarded the costs of this action.
 
                                                
 
                                                         
 
         
 
                               FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              2.  On December 12, 1986, claimant suffered an injury to his 
 
         left leg which arose out of and in the course of employment at 
 
         Griffin consisting of a torn cartilage or medial meniscus in the 
 
         left knee.
 
         
 
              3.  The work injury of December 12, 1986, was a cause of a 
 
         temporary period of total disability from work.
 
         
 
              4.  As a result of a prior work injury in 1976 consisting of 
 
         a torn medial meniscus, claimant suffered a 10 percent permanent 
 
         partial impairment to the left leg.
 
         
 
              5.  Claimant has failed to demonstrate that the work injury 
 
         of December 12, 1986, caused additional permanent partial 
 
         impairment.
 
         
 
                               CONCLUSIONS OF LAW
 
         
 
              Claimant has failed to establish by a preponderance of the 
 
         evidence entitlement to additional permanent partial disability 
 
 
 
                   
 
                                                         
 
         benefits.
 
         
 
                                   ORDER
 
         
 
              1.  Claimant shall take no additional permanent disability 
 
         benefits from this proceeding.
 
         
 
              2.  Defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 12th day of May, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         Middle Road
 
         Keokuk, Iowa  52632-1066
 
         
 
         Mr. John E. Kultala
 
         Attorney at Law
 
         511 Blondeau Street
 
         Keokuk, Iowa  52632
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1803
 
                                                 Filed May 12, 1988
 
                                                 LARRY P. WALSHIRE
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LYLE R. CORNWELL,
 
         
 
              Claimant,
 
                                                     FILE NO. 841129
 
         vs.
 
                                                 A R B I T R A T I 0 N
 
         GRIFFIN WHEEL COMPANY,
 
                                                    D E C I S I 0 N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         1803
 
         
 
              Claimant failed to establish entitlement to permanent 
 
         partial disability benefits.  Claimant failed to demonstrate that 
 
         he suffered additional permanent partial impairment from an 
 
         injury which appeared to temporarily aggravate a preexisting 
 
         condition.
 
 
 
         
 
 
        
 
 
 
 
 
        
 
                                          1803 - 2602
 
                                          Filed June 16, 1989
 
                                          DAVID E. LINQUIST
 
        
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSION
 
        
 
        
 
        LYLE R. CORNWELL,
 
        
 
            Claimant,                                    File No. 
 
        841129
 
        
 
        vs.
 
                                                          A P P E A L
 
        GRIFFIN WHEEL COMPANY,
 
        
 
            Employer,                                    D E C I S I O 
 
        N
 
            Self-Insured,
 
            Defendant.
 
        
 
        
 
        
 
        1803, 2602
 
        
 
             Claimant had a 10 percent functional impairment of his lower 
 
             extremity after knee surgery which involved the removal of 
 
             cartilage. Later, additional surgery resulted in removal of more 
 
             cartilage. However, claimant's doctor testified that his 
 
             functional impairment after the second surgery was still 10 
 
             percent. Claimant's argument that he was entitled to further 
 
             benefits since more of his body was removed was rejected.
 
             
 
        
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                        BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BETTY LA JEAN SCHILLING,
 
         
 
              Claimant,                                File No. 841207
 
         
 
         vs.                                        A R B I T R A T I O N
 
         
 
         ASSOCIATED MILK PRODUCERS,                    D E C I S I O N
 
         
 
              Employer,
 
                                                          F I L E D
 
         and
 
                                                         MAY 10 1989
 
         KEMPER INSURANCE,
 
                                                     INDUSTRIAL SERVICES
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by claimant 
 
         Betty La Jean Schilling against defendant employer Associated 
 
         Milk Producers and defendant insurance carrier Kemper Insurance 
 
         to recover benefits under the Iowa Workers' Compensation Act as 
 
         the result of an injury sustained December 11, 1986.  This matter 
 
         came on for hearing before the undersigned in Storm Lake, Iowa, 
 
         on March 17, 1989, and was considered fully submitted at the 
 
         close of hearing.  Defendants subsequently filed a brief.
 
         
 
              The record in the proceeding consists of claimant's 1 and 2, 
 
         defendants' exhibit A, B, C and D and the testimony of claimant 
 
         and Teri Erfman, her daughter.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report submitted by the parties 
 
         and approved by the deputy at hearing, the following issue is 
 
         presented for determination:  Whether home health care services 
 
         provided by claimant's daughter were fair and reasonable, 
 
         causally related to the stipulated work injury, and whether they 
 
         are a covered benefit under Iowa Code section 85.27.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The parties stipulated that claimant sustained a work injury 
 
         on December 11, 1986, and was temporarily totally disabled from 
 
         December 12, 1986 through February 1, 1987.  It was further 
 
         stipulated that claimant did not sustain permanent disability and 
 
         that she was compensated for her temporary total disability.
 
         
 
              Claimant was treated by William E. Hicks, M.D.  She suffered 
 
         extensive injuries to her chest (bilateral fractured ribs), arm, 
 
         neck and head.  In a letter of February 5, 1987, Dr. Hicks 
 
         stated:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Betty Schilling suffered extensive chest injuries, arm 
 
              injuries and head and neck contusions while working.  She 
 
              was admitted to the hospital for several days while 
 
              effusions from the lungs were clearing and her pain was 
 
              being treated. It was my recommendation that she have 
 
              somebody to help her in the home for several weeks after her 
 
              injury and this was arranged.  The patient tells me that 
 
              insurance says this is nothing for which they are 
 
              responsible for.  I do believe that this patient had a 
 
              medical necessity of help at home, otherwise she could not 
 
              have left the hospital as soon as she did.  I would feel 
 
              that it is a legitimate medical expense for recovery and 
 
              would recommend that it would be covered as medically 
 
              necessary.
 
         
 
              In a note of December 15, 1987 (apparently misdated and of 
 
         1986), Dr. Hicks stated that claimant needed household help at 
 
         home due to the injuries she suffered and that she would need 
 
         such help for the next four to six weeks.
 
         
 
              Claimant testified that she was hospitalized from Thursday 
 
         through Monday and was released by Dr. Hicks only if she could 
 
         make arrangements for home health care.  She further indicated 
 
         that Dr. Hicks believed that part of this necessity was for an 
 
         individual to be home to take claimant to the hospital in the 
 
         event that she stopped breathing.  As has been seen, claimant had 
 
         effusions from the lungs.  Claimant indicated that she was 
 
         suffering from breathing problems and that her breath would get 
 
         short.  Claimant was not given specific restrictions by Dr. 
 
         Hicks, but indicated that she had been told to just sit home and 
 
         relax and seek help with her housework until February 1, 1987.  
 
         Teri Erfman provided that help from December 16, 1986 through 
 
         January 17, 1987.
 
         
 
              Claimant agreed that she did not look for any other home 
 
         care provider other than her daughter and that she made no 
 
         attempt to negotiate a lower rate of pay.  In fact, she thought 
 
         that Ms. Erfman was "probably" to be paid on an hourly basis 
 
         since she wrote down her hours.  She eventually understood that 
 
         Ms. Erfman expected to be paid $6.50 per hour when she was doing 
 
         housework.
 
         
 
              Claimant agreed that Ms. Erfman is not a medical 
 
         practitioner of any sort.  Her husband's hours varied, and she 
 
         agreed that Ms. Erfman was from time to time present at her home 
 
         while her husband was there, and presumably able to transport 
 
         claimant to the hospital if necessary.
 
         
 
              Ms. Schilling further testified that she understood Ms. 
 
         Erfman's total bill to be $1,653.12, none of which has been paid 
 
         to date.
 
         
 
              Teri Erfman testified that she did everything for her 
 
         mother, including bathing her, preparing meals, doing housework, 
 
         and checking her breathing and temperature.  She agreed on 
 
         cross-examination that she sometimes ran errands while someone 
 
         else was at home, including claimant's husband.  She also agreed 
 
         that the hours written down as defendants' exhibit A were 
 
         accurate.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              In pertinent part, Iowa Code section 85.27 provides:
 
         
 
              The employer, for all injuries compensable under this 
 
              chapter or chapter 85A, shall furnish reasonable surgical, 
 
              medical, dental, osteopathic, chiropractic, podiatric, 
 
              physical rehabilitation, nursing, ambulance and hospital 
 
              services and supplies therefor and shall allow reasonably 
 
              necessary transportation expenses incurred for such 
 
              services.
 
         
 
              The services provided by Ms. Erfman are clearly not medical 
 
         in nature, but to some extent may fall under the category of 
 
         nursing care.  For example, bathing and feeding claimant are 
 
         duties that might well be performed by a nurse's aide or a 
 
         practical nurse in the home.  Services in the nature of 
 
         housekeeping, running errands, washing dishes and the like are 
 
         not in the nature of nursing care and should be deemed to have 
 
         been provided gratuitously pursuant to the family relationship.  
 
         Wuebker v. Oscar Mayer.& Company, Inc., file number 758401, (App. 
 
         Decn., June 22, 1988).  See also 2 Larson Workmen's Compensation 
 
         Law, section 61.13(d)(4).  However, to the extent that the 
 
         services provided were medically necessary and in the nature of 
 
         nursing, they may be deemed compensable.  Worrell v. Griffin 
 
         Wheel Co., file number 702268, (App. Decn., February 26, 1988).
 
         
 
              Dr. Hicks prescribed household help as a factor in releasing 
 
         claimant from her hospitalization.  He also believed it necessary 
 
         that claimant have assistance so that she might seek further 
 
         medical attention in the event of breathing difficulties.  There 
 
         is no doubt that defendants have received a benefit from the 
 
         services provided by Ms. Erfman, but there are serious problems 
 
         of proof.  There appears not to have been a firm agreement 
 
         between claimant and her daughter as to the hourly fee to be 
 
         charged, and there is no clear demarcation between the hours Ms. 
 
         Erfman bills at $6.50 and those at $4.50.  In addition, many of 
 
         the hours listed constitute overreaching (for example, sleeping, 
 
         Christmas shopping, and eating Christmas dinner with the family).  
 
         There were also times that claimant's husband was present and 
 
         clearly could have cared for claimant if a medical emergency had 
 
         arisen.
 
         
 
              Although this care was not authorized by defendants, there 
 
         is no indication that defendants offered any other home care to 
 
         claimant.  Since defendants have received a substantial benefit 
 
         by reason of Ms. Erfman's services and since it is impossible to 
 
         determine exactly the extent to which those services were 
 
         "nursing" as opposed to non-covered household help, and even 
 
         which "nursing" hours were reasonable and necessary given the 
 
         occasional presence of claimant's husband, recovery should be 
 
         allowed on a quantum meruit basis.  It is hereby held that 
 
         defendants shall pay unto Ms. Erfman the sum of $500 as payment 
 
         in full for the nursing services provided to claimant in the 
 
         month following her release from hospitalization.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                 FINDINGS OF FACT
 
         
 
              THEREFORE, based on the evidence presented, the following 
 
         ultimate facts are found:
 
         
 
              1.  Claimant suffered a work injury on December 11, 1986 
 
         involving bilateral multiple rib fractures, left pleural effusion 
 
         and multiple contusions and abrasions.
 
         
 
              2.  When claimant was released from the hospital, it was on 
 
         the basis that she would receive household help at home, 
 
         including both nursing and non-nursing services.
 
         
 
              3.  Teri Erfman performed both nursing and domestic services 
 
         on claimant's behalf from December 16, 1986 through January 17, 
 
         1987.
 
         
 
              4.  It is impossible to accurately determine the number of 
 
         hours Teri Erfman devoted to nursing services and whether all of 
 
         those hours were reasonable and necessary; however, defendants 
 
         did receive a substantial benefit by reason of those services.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  Teri Erfman provided an undetermined number of hours of 
 
         services that are properly considered "nursing" within the 
 
         meaning of Iowa Code section 85.27.
 
         
 
              2.  On a quantum meruit basis, Teri Erfman shall be allowed 
 
         the sum of $500 for the nursing services provided to claimant.
 
              
 
              3.  Teri Erfman shall not be allowed recovery for domestic 
 
         and household duties and services performed for claimant.
 
              
 
                                      ORDER
 
                                        
 
              THEREFORE, IT IS ORDERED:
 
              
 
              Defendants are to pay unto Teri Erfman the sum of five 
 
         hundred and 00/100 dollars ($500.00) as reasonable and necessary 
 
         nursing expenses under Iowa Code section 85.27.
 
              
 
              The costs of this action shall be assessed to defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
              
 
              Defendants shall file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
              
 
              
 
              Signed and filed this 10th day of May, 1989.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              
 
              
 
              
 
              
 
                                            DAVID RASEY
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
                                            
 
         Copies To:
 
         
 
         Ms. Betty La Jean Schilling
 
         RR 1
 
         Sibley, Iowa  51249
 
         CERTIFIED AND REGULAR MAIL
 
         
 
         Mr. Charles T. Patterson
 
         Attorney at Law
 
         200 Home Federal Building
 
         P.O. Box 3086
 
         Sioux City, Iowa  51102
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            2500
 
                                            Filed May 10, 1989
 
                                            DAVID RASEY
 
                                            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BETTY LA JEAN SCHILLING,
 
         
 
              Claimant,
 
         
 
         vs.                                       File No. 841207
 
         
 
         ASSOCIATED MILK PRODUCERS,             A R B I T R A T I 0 N
 
         
 
              Employer,                            D E C I S I 0 N
 
         
 
         and
 
         
 
         KEMPER INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         2500
 
         
 
              Home health care provided by claimant's daughter was 
 
         compensated under 85.27 on a quantum meruit basis to the extent 
 
         it was "nursing."  Household domestic help was not compensable.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GARRY ALLENDER,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 841378
 
            WAL-MART, INC.,               :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            NATIONAL UNION FIRE           :
 
            INSURANCE CO.,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Garry Allender, against Wal-Mart, Inc., 
 
            employer, and its insurance carrier, National Union Fire 
 
            Insurance Company, defendants.  The case was heard on 
 
            September 18, 1989, in Burlington, Iowa at the Des Moines 
 
            County Courthouse.  The record consists of the testimony of 
 
            claimant as well as the testimony of Randy Dungren, 
 
            personnel manager for defendant-employer.  Additionally, the 
 
            record consists of joint exhibits A-H.
 
            
 
                                      issues
 
            
 
                 The sole issues to be determined are:  1) whether there 
 
            is a causal relationship between the alleged injury and the 
 
            disability; and, 2) whether claimant is entitled to 
 
            permanent partial disability benefits.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant was 32 years old at the time of the hearing.  
 
            He terminated his formal education when he was a sophomore 
 
            in high school.  After that date, claimant held various 
 
            positions in agriculture.  Since his injury, claimant has 
 
            obtained a GED.
 
            
 
                 Claimant commenced his employment with 
 
            defendant-employer on September 30, 1985.  He was hired as 
 
            an order filler at the distribution center in the 
 
            "non-conveyable area."  The area required claimant to place 
 
            merchandise on 4-wheel carts and push the merchandise 
 
            through the warehouse.  The range of weight he lifted was 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            from one pound to 120 pounds.
 
            
 
                 Claimant sustained an injury which arose out of and in 
 
            the course of his employment with defendant.  On November 
 
            19, 1986, claimant was lifting a 30 pound pallet.  He felt a 
 
            sharp pain in his back.  As a result, he was off work from 
 
            November 20, 1986 to May 3, 1987 and from October 17, 1987 
 
            through January 10, 1988.  During that time, claimant 
 
            received medical treatment.
 
            
 
                 Claimant returned to his employment with 
 
            defendant-employer after each absence.  Upon his second 
 
            return to work, claimant was placed in a position as a Class 
 
            III warehouseman.  His position paid $.25 per hour more than 
 
            his former position.  On the date of the hearing, claimant 
 
            was still employed in that capacity.
 
            
 
                                conclusions of law
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of November 
 
            19, 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).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 When an aggravation occurs in the performance of an 
 
            employer's work and a causal connection is established, 
 
            claimant may recover to the extent of the impairment.  
 
            Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 
 
            N.W.2d 591, 595 (1960).
 
            
 
                 The Iowa Supreme Court cites, apparently with approval, 
 
            the C.J.S. statement that the aggravation should be material 
 
            if it is to be compensable.  Yeager v. Firestone Tire & 
 
            Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. 
 
            Workmen's Compensation sec. 555(17)a.
 
            
 
                 Our supreme court has stated many times that a claimant 
 
            may recover for a work connected aggravation of a 
 
            preexisting condition.  Almquist v. Shenandoah Nurseries, 
 
            218 Iowa 724, 254 N.W. 35 (1934).  See also Auxier v. 
 
            Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek 
 
            v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz 
 
            v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. 
 
            Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
            (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); 
 
            Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960).
 
            
 
                 An employer takes an employee subject to any active or 
 
            dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler, 252 Iowa 613, 
 
            620, 106 N.W.2d 591 (1960), and cases cited.
 
            
 
                 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, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 
 
            Iowa 613, 106 N.W.2d 591 (1960).  See also Barz, 257 Iowa 
 
            508, 133 N.W.2d 704 (1965); Almquist, 218 Iowa 724, 254 N.W. 
 
            35 (1934).
 
            
 
                 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."
 
            
 
                 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.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985);  Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 In the instant case, claimant has proven by a 
 
            preponderance of the evidence, the requisite causal 
 
            connection between the injury of November 19, 1986 and 
 
            claimant's alleged disability.  Donald D. Berg, M.D., wrote 
 
            in his report of October 7, 1988:
 
            
 
                 In answer to your letter dated September 30, 1988 
 
                 regarding Gary Allender, the patient is a 29 year 
 
                 old laborer from Mt. Pleasant who was injured 
 
                 while working at Walmart lifting on November 19, 
 
                 1986.  Following this lifting, he developed back 
 
                 pain and has had persistent back pain from the 
 
                 date of his injury until the present time.
 
            
 
                 Jerry Jochims, M.D., an orthopedic surgeon, also 
 
            causally connected claimant's work injury of November 19, 
 
            1986 to claimant's claimed disability.  Dr. Jochim's 
 
            testimony was based on a reasonable degree of medical 
 
            certainty.  Scott Neff, D.O., did not hold the opinion 
 
            claimant's condition was caused by claimant's work injury of 
 
            November 19, 1986.  However, even Dr. Neff testified in his 
 
            deposition:
 
            
 
                    A.  My opinion would be that the changes which 
 
                 were evident on x-ray were definitely more chronic 
 
                 or more long-standing in nature than the time 
 
                 period would allow between the alleged injury and 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 the date that the first CT study was taken or 
 
                 performed or produced.
 
            
 
                      So that, combined with the patient's history 
 
                 and his current circumstance, would make me 
 
                 believe that the changes in the back did not occur 
 
                 on the date of injury but far predated that date 
 
                 of injury.  In other words, the arthritis in his 
 
                 back had been there longer than the time between 
 
                 the CT study and the date of his injury.
 
            
 
                    Q.  Again, Doctor, just for clarification 
 
                 purposes, what is the basis for your opinion in 
 
                 that regard?
 
            
 
                    A.  Basis is the history which gives the date 
 
                 of injury and compares that with the date of the 
 
                 CT study which makes it impossible for those 
 
                 changes to have occurred in that short of period 
 
                 of time.
 
            
 
                    Q.  Do you have an opinion, Doctor, based on a 
 
                 reasonable degree of medical certainty and 
 
                 probability as to whether the permanent functional 
 
                 impairment which you have identified in the 
 
                 claimant, Garry Allender, preexisted any 
 
                 work-related incident which the claimant 
 
                 experienced at Wal-Mart in November of 1986?
 
            
 
                      MR. CROWLEY:  Excuse me.  I'm going to ask 
 
                 the court reporter to read that question back to 
 
                 me before it is answered, Doctor.
 
            
 
                      (Requested portion of the record was read.)
 
            
 
                    A.  Yes, I have an opinion.
 
            
 
                    Q.  (By Mr. Dorff)  What is that opinion?
 
            
 
                    A.  As I stated earlier, the date of injury and 
 
                 the date of the CT scan are too close together for 
 
                 those arthritic and degenerative changes as well 
 
                 as the calcified changes in the disc to have 
 
                 occurred during that period of time.
 
            
 
                      So my opinion would be that the changes which 
 
                 were evident in his back, which are indeed real, 
 
                 have predated or occurred prior to the alleged 
 
                 date of injury.
 
            
 
                    Q.  Doctor, in your experience as an orthopedic 
 
                 surgeon, do you find instances in which a person 
 
                 can have a temporary worsening of symptoms without 
 
                 a real aggravation of conditions?
 
            
 
                    A.  Yes.  That's very common.  That would be 
 
                 what probably occurred in this situation.
 
            
 
                    Q.  Is that opinion based on a reasonable 
 
                 degree of medical certainty and probability as it 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 relates to Garry Allender?
 
            
 
                    A.  Yes, it is.  And in addition, it is also 
 
                 based on the facts as it occurred in the course of 
 
                 this patient's life.  He had symptoms which got 
 
                 better, and now he has gone back to doing the same 
 
                 job.  In fact, I think he is working two jobs 
 
                 even, or at least had following his injury which 
 
                 concerned working two jobs.  So that would go 
 
                 along with a temporary worsening of symptoms which 
 
                 then gets better with time and allows the person 
 
                 to resume more active normal activity.
 
            
 
                 Therefore, it is the determination of the undersigned 
 
            that claimant has proven that his claimed disability is 
 
            causally related to the work injury of November 19, 1986.
 
            
 
                 The final issue to address is the nature and extent of 
 
            claimant's alleged disability, if any.  Claimant has 
 
            established he has sustained a permanent partial disability.  
 
            The treating physician, E. A. Dykstra, opined that claimant 
 
            had no permanent impairment.  However, Dr. Dykstra imposed 
 
            the following restrictions upon claimant:  no repetitive 
 
            lifting greater than 45 pounds and no more than an eight 
 
            hour day.
 
            
 
     
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Dr. Jochims agreed with the restrictions imposed by Dr. 
 
            Dykstra.  Dr. Jochims believed the weight restrictions were 
 
            reasonable and prudent.  He also opined claimant sustained a 
 
            permanent impairment of 10 percent of the body as a whole.
 
            
 
                 While Dr. Neff denied claimant's condition was work 
 
            related, the physician, nevertheless opined claimant had a 
 
            permanent impairment of five percent.  Dr. Neff attributed 
 
            the impairment to "x-ray changes which are abnormal."  
 
            Additionally, he concurred with the 45 to 50 pound weight 
 
            limitations imposed upon claimant.
 
            
 
                 Claimant argues he has an industrial disability.  
 
            Defendants dispute this contention.  Claimant has returned 
 
            to work with defendant-employer.  The position he now holds 
 
            is a grade level above the one he held prior to his November 
 
            19, 1986 injury.  Claimant makes $.25 per hour more in the 
 
            higher position.  However, claimant is precluded from 
 
            working in areas where he is required to lift greater than 
 
            45 pounds or where he is required to work more than eight 
 
            hours per day.  Consequently, claimant is unable to hold 
 
            certain positions.  He has permanent restrictions.  His 
 
            earning capacity has been reduced as a result of his injury.  
 
            Claimant has a permanent partial disability in the amount of 
 
            seven percent.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants are to pay claimant permanent partial 
 
            disability benefits for thirty five (35) weeks at the 
 
            stipulated rate of one hundred fifty-four and 51/l00 dollars 
 
            ($154.51) per week commencing on January 10, 1988.
 
            
 
                 Defendants shall receive credit for all benefits 
 
            previously paid.
 
            
 
                 Interest shall be paid according to section 85.30.
 
            
 
                 Costs of the action shall be assessed to defendants 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 Defendants shall file a claim activity report as 
 
            required by this division pursuant to Division of Industrial 
 
            Services Rule 343-3.l.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of September, 1990.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Steven J. Crowley
 
            Attorney at Law
 
            100 Valley St
 
            P O Box 517
 
            Burlington  IA  52601
 
            
 
            Mr. E. J. Kelly
 
            Attorney at Law
 
            Terrace Center  STE 111
 
            2700 Grand
 
            Des Moines  IA  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1803
 
                                               Filed September 12, 1990
 
                                               MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GARRY ALLENDER,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 841378
 
            WAL-MART, INC.,               :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            NATIONAL UNION FIRE           :
 
            INSURANCE CO.,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-1803
 
            Claimant was awarded a seven percent permanent partial 
 
            disability for a back injury.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PATTY LECHTENBERG,
 
         
 
              Claimant,
 
                                                    File No. 841392
 
         vs.
 
                                                 A R B I T R A T I O N
 
         FARMLAND FOODS,
 
                                                    D E C I S I O N
 
              Employer,
 
         
 
         and                                           F I L E D
 
         
 
         AETNA CASUALTY & SURETY                      AUG 8 1989
 
         COMPANY,
 
                                             IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Patty Lechtenberg, against Farmland Foods, employer, and Aetna 
 
         Casualty & Surety Company, insurance carrier, to recover benefits 
 
         as a result of an alleged injury sustained on December 22, 1986. 
 
         This matter comes on for hearing before the deputy industrial 
 
         commissioner in Sioux City, Iowa, on June 21, 1989.  The record 
 
         consists of the testimony of the claimant and joint exhibits 1 
 
         through 47.
 
         
 
                                   ISSUES
 
         
 
              The issues the parties set out in the prehearing report for 
 
         resolution are:
 
         
 
              1.  Whether the claimant's disability is causally connected 
 
         to her injury; and
 
         
 
              2.  The nature and extent of claimant's disability.
 
         
 
                          REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified she began working for Farmland Foods in 
 
         October of 1977 and continued up to April 4, 1988, at which time 
 
         she was terminated.  Claimant said she passed a pre-employment 
 
         physical given by defendant employer's doctor, D. Crabb, M.D. 
 
         Claimant related the various jobs she had with Farmland up to the 
 
         time of her injury on December 22, 1986, which involved a 
 
         Whizzard knife cleaning bones.  Claimant indicated she had no 
 
         injuries prior to December 22, 1986, except she missed one week 
 
         years before due to her back.  Claimant testified that while 
 
         pulling out a 50 pound box of meat in order to weigh it, she felt 
 
                                                
 
                                                         
 
         a sharp pain in her back and into her legs.
 
         
 
              Claimant was off work beginning December 23, 1986 up to 
 
         February 2, 1987.  During this period, claimant said she was 
 
         receiving ultrasound and physiotherapy.  Claimant stated her 
 
         restrictions were light duty, no standing in one place too long 
 
         and no lifting.  Claimant said she returned to light duty work on 
 
         February 2, 1987, where she checked jowls for abscesses and 
 
         cheeks for cysts for two weeks and then returned to her normal 
 
         job. Claimant stated she continued to have low back discomfort. 
 
         Claimant worked through November 8, 1987, after which time she 
 
         contends she could no longer work due to her condition.
 
         
 
              Claimant testified she had no other injuries to her back 
 
         before February 2, 1987 and November 9, 1987, except she slipped 
 
         and fell down some stairs at Farmland in May 1987.  Claimant said 
 
         this May fall injured her neck and shoulder.  Claimant emphasized 
 
         that this May 1987 fall caused no further pain or injury than what 
 
         she already had from the December 22, 1986 injury.  In claimant's 
 
         deposition taken April 13, 1989, she stated her neck still 
 
         bothered her and her shoulders were sore.  Claimant testified that 
 
         she continued therapy between November 9, 1987 and April 4, 1988. 
 
         Claimant indicated that Dr. Crabb referred her to Q. J. Durward, 
 
         M.D.  Claimant contends Dr. Durward told her she would always have 
 
         back trouble and that she should get off the job.  Claimant 
 
         testified she bid for a new job with defendant employer while off 
 
         work during the November 9, 1987 to April 4, 1988 period.  
 
         Claimant indicated this new job would involve no stooping or 
 
         lifting over three pounds.  She indicated this job involved 
 
         weighing rib bones. Claimant said her restrictions then were no 
 
         full-time work; four hours for two weeks; then six hours, then 
 
         eight hours; lifting up to 35 to 40 pounds; and avoiding stooping 
 
         and bending.  On April 1, 1988, claimant showed the note setting 
 
         out her restrictions to defendant employer's nurse.  Claimant said 
 
         the nurse was to inquire as to available jobs and claimant was to 
 
         come back the following Monday, April 4, 1988.  Claimant said when 
 
         she called the plant superintendent, Mr. Behrens, on Monday, April 
 
         4, 1988, he terminated claimant's job.  Claimant said Mr. Behrens' 
 
         reason for terminating her job was "there was no work for 
 
         part-time employees."  Claimant contends she could do the rib 
 
         weighing job as it involved no lifting.
 
         
 
              Claimant applied for and received unemployment benefits upon 
 
         her termination.  Claimant indicated she looked for sales jobs 
 
         during this period but was not successful in obtaining work. 
 
         Claimant acknowledged that her husband sold his sporting goods 
 
         store in February 1988.  Claimant said she had no interest in 
 
         this store nor was she working in the store.  Claimant testified 
 
         she began full-time baby-sitting in her home in October of 1988 
 
         at $1.25 per hour per child, or if two children in the family, 
 
         $1.50 per family.  Claimant acknowledged she saw a doctor for her 
 
         shoulder pain and neck pain but is not making a claim for those 
 
         problems even though she thinks they may result from her low back 
 
         injury.  Claimant testified that her present complaints resulting 
 
         from her December 22, 1986 injury are pain across her low back 
 
                                                
 
                                                         
 
         into her legs, problems sleeping at times, and driving causes 
 
         soreness.  Claimant indicated she is continuing to see her 
 
         chiropractor, John G. Donovan.  Claimant acknowledged that she 
 
         has been using this chiropractor since she was young one to two 
 
         times per year for many years.  Claimant said she has been 
 
         going,to Dr. Donovan at least two times per month beginning in 
 
         1986.
 
         
 
              Claimant stated that if Farmland offered her a job, she 
 
         would go back.  Claimant indicated she was surprised they didn't 
 
         give her a job as she has cooperated with them.  Claimant 
 
         indicated that she never expected to lose her job and was shocked 
 
         when she was terminated.  Claimant agreed that the doctor said 
 
         she has a degeneration of a disc and a nonunion at the bottom of 
 
         her spine. Claimant emphasized she obviously had no problems at 
 
         the time of her employment physical.
 
         
 
              Dennis W. Crabb, M.D., was claimant's initial treating 
 
         doctor in regards to her December 22, 1986 injury.  On November 
 
         20, 1987, he wrote, "I find no objective evidence that could 
 
         justify continuing her on work restriction and that she could 
 
         return back to work without limitation."  (Joint Exhibit 19, page 
 
         2)
 
         
 
              An x-ray report on November 20, 1987, indicated:  "Very 
 
         slight prolapse of thedisc [sic] at the level of L5/S1 with no 
 
         signs of any true herniation."  (Jt. Ex. 21)
 
         
 
              On January 28, 1988, Quentin J. Durward, M.D., wrote:
 
         
 
              Since I last saw her, she has been further investigated with 
 
              MRI scan of the low back, cervical spine, and 
 
              flexion-extension lumbar spine x-rays.  Basically, the 
 
              cervical spine MRI scan was normal.  The cervical spine 
 
              x-rays are normal. The lumbar spine x-rays show minimal 
 
              narrowing of the L4/5 disc space.  The lumbar MRI scan 
 
              demonstrates quite marked degeneration of the L4/5 disc.  
 
              There is minimal bulge of the disc, but it is not 
 
              significantly compressing the thecal sac or nerve root.
 
         
 
                   I think this lady's pain probably does come from the 
 
              disc degenerative level at L4/5 with probably chronic 
 
              associated facet strain.  My recommendation would be not to 
 
              perform surgery here.  I think she may benefit from a trial 
 
              of isokinetic rehabilitation.  I am going to refer her to 
 
              Dr. Donahue for consideration of that.  The question comes 
 
              up as to whether she can continue her job.  I told her that 
 
              I do not think she should do a job where she has to do a lot 
 
              of bending and lifting of more than 30 lbs. in weight.  At 
 
              her current job, apparently she has to do this and I think 
 
              that probably is somewhat contra-indicated.  She may need to 
 
              change her job.
 
         
 
         (Jt. Ex. 29)
 
         
 
                                                
 
                                                         
 
              On March 14, 1988, Dr. Durward wrote:  "I anticipate that 
 
         her restrictions at that time will be to avoid repetitive lifting 
 
         and bending and a 25 to 30 lbs. lifting restriction."  (Jt. Ex. 
 
         38) In response to a letter from claimant's attorney for 
 
         clarification, Dr. Durward wrote on March 21, 1988:  "By review 
 
         of my notes the disability you mention on Mrs. Lechtenberg was 
 
         caused by the accident at work."  (Jt. Ex. 39)  It is obvious 
 
         from the prior correspondence that Dr. Durward was referring to 
 
         the December 22, 1986 accident at work.
 
         
 
              On March 28, 1988, J. Michael Donahue, M.D., who is with the 
 
         Back Rehabilitation Clinics of America, Inc., and working in 
 
         coordination with Dr. Durward, wrote:  "Patti Lechtenberg, 
 
         Released for work as of 4-4-88 for 4 hr/shift; 25 lb lifting 
 
         restriction; avoid repetative [sic] bending and lifting."  (Jt. 
 
         Ex. 40)  Three days later, on March 31, 1988, Dr. Donahue wrote:
 
         
 
              ...based on objective findings, I do not detect any 
 
              permanent impairment with respect to the patients back 
 
              injury.  Further more [sic], I believe it would be in her 
 
              best interest to attempt to transition her back into a 
 
              working situation.  I explained to her that based on 
 
              isokinetic data, I believe that she could return to work for 
 
              4 hours a shift with a 25 lb. restriction temporarily if she 
 
              avoided repetitive bending and lifting.  I believe that this 
 
     
 
                          
 
                                                         
 
              can be gradually increased to 6 hours and then 8 hours a 
 
              shift over the next month.  The patients [sic] husband 
 
              related that Dr. Durward felt that the patient could 
 
              possibly have permanent impairment from her injury.  I again 
 
              related to the patient and her husband that based on strict 
 
              criteria, I would personally give her a 0 impairment rating 
 
              but would be happy to make arrangements for the patient to 
 
              be reevaluated by Dr. Durward to obtain his opinion.  I 
 
              believe that based on the patients [sic] subjective 
 
              complaints only, I would recommend that she be returned to 
 
              the working force in a capacity that does not.require 
 
              repetitive bending and lifting and after gradual transition 
 
              to 8 hours a shift over a 4 to 6 week period of time, her 
 
              maximum lifting restriction be placed at 75 lbs. This 
 
              recommendation is based on information obtained from Liftask 
 
              testing in the clinic.
 
         
 
         (Jt. Ex. 42)
 
         
 
              On April 14, 1988, Dr. Durward wrote:
 
         
 
                   Apparently she returned to work at Farmland Foods late 
 
              last week and they sacked her.  She was told that they were 
 
              doing her a favor because this way she would not injure her 
 
              back anymore at Farmland Foods.
 
         
 
                   ....
 
         
 
                   ...Strict interpretation of the AMA guidelines does not 
 
              give her an impairment rating and I am in agreement with Dr. 
 
              Donahue on this.  I would have to say that is however 
 
              permanently completely impaired for a job where she has to 
 
              do heavy lifting (more than 25 pounds) and a lot of bending 
 
              and stooping.  However, for a job where she does not have to 
 
              do heavy lifting, I do not believe she is permanently 
 
              impaired.
 
         
 
         (Jt. Ex. 45)
 
         
 
              John P. McCarthy, D.C., wrote on May 20, 1988:
 
         
 
              Diagnosis:  1.  Probable L4/L5 disc. derangement
 
                              with resultant symptomatology on loading.
 
         
 
                          2.  Amplified pain syndrome.
 
         
 
         
 
              Comments/Conclusions:  In my opinion the patient
 
                          has reached maximum medical improvement (MMI). 
 
                          The length of work loss to date appears to be 
 
                          excessive and not consistent with the severity 
 
                          of injury.  Also, there are significant 
 
                          indications that the patient has an amplified 
 
                          pain syndrome, but this is not to be construed 
 
                          as "Malingering." It is not an uncommon sequel 
 
                                                
 
                                                         
 
                                           for low back pain patients with this length of 
 
                          work loss, health care, medico, legal and social 
 
                          implications to demonstrate some psychological 
 
                          overlay.  The inappropriate behavior pattern is 
 
                          well documented in my clinical examination....
 
         
 
                          Permanent whole person, impairment for Ms. 
 
                          Lechtenberg is 5% whole person.  This can be 
 
                          arrived at by using the AMA guides, which allows 
 
                          for a 5% whole man impairment with disc 
 
                          derangement and residuals.  Using Waddell's 
 
                          approach we can arrive at 4-8% whole person 
 
                          permanent impairment.
 
         
 
         (Jt. Ex. 47)
 
         
 
                                 LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of December 22, 1986 is causally 
 
         related to the disability on which she now bases her claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756, (1956).  
 
         If the claimant had a preexisting condition or disability that is 
 
         aggravated, accelerated, worsened or lighted up so that it results 
 
         in disability, claimant is entitled to recover.  Nicks v Davenport 
 
         Produce Co., 254 Iowa 130, 115 N.W.2d 812, (1962).
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, (1960).
 
                                                
 
                                                         
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be 
 
         a.personal injury.  Ziegler, 252 Iowa 613, 620, 106 N.W.2d 591, 
 
         and cases cited.
 
         
 
              As a claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co.,. 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              The opinion of the supreme court in Olson v. Goodyear 
 
         Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963) at 1121, 
 
         cited with approval a decision of the industrial commissioner for 
 
         the following proposition:
 
         
 
              Disability * * * as defined by the Compensation Act means 
 
              industrial disability, although functional disability is an 
 
              element to be considered . . . In determining industrial 
 
              disability, consideration may be given to the injured 
 
              employee's age, education, qualifications, experience and 
 
              his inability, because of the injury, to engage in 
 
              employment for which he is fitted.
 
         
 
         
 
              For example, a defendant employer's refusal to give any sort 
 
         of work to a claimant after he suffers his affliction may justify 
 
         an award of disability.  McSpadden v. Big Ben Coal Co., 288 
 
         N.W.2d 181 (Iowa 1980).
 
         
 
              Iowa Code section 85.34(1) provides that if an employee has 
 
         suffered a personal injury causing permanent partial disability, 
 
         the employer shall pay compensation for a healing period from the 
 
         day of the injury until (1) the employee returns to work; or (2) 
 
         it is medically indicated that significant improvement from the 
 
         injury is not anticipated; or (3) until the employee is medically 
 
         capable of returning to substantially similar employment.
 
         
 
              A healing period may be interrupted by a return to work. 
 
         Riesselman v. Carroll Health Center, 3 Iowa Industrial 
 
         Commissioner Reports 209 (Appeal Decision 1982).
 
         
 
              Claimant is 30 years old.  The evidence indicates she has 
 
         been athletically involved in various sports in high school and 
 
         post high school up to her December 22, 1986 injury.  She is now 
 
         only involved in refereeing volley ball games with her husband.
 
         
 
              Claimant has only worked in manual labor type jobs and 
 
         approximately 90 percent of her work life prior to December 22, 
 
                                                
 
                                                         
 
         1986 has been working for defendant employer.  There is no 
 
         evidence of any injury incurred by claimant prior to December 22, 
 
         1986. There appears to have been no complaint as to claimant's 
 
         work. Claimant progressed within the company to various jobs.  The 
 
         parties agreed that claimant received a work-related injury on 
 
         December 22, 1986.  The first dispute is whether claimant's 
 
         present alleged disability is causally connected to this injury.
 
         
 
              Prior to December 22, 1986, the only medical notation of any 
 
         problem that involves claimant's back is in August 1979.  "Acute 
 
         Abck [sic] strain."  (Jt. Ex. 1)
 
         
 
              There is considerable medical evidence beginning with 
 
         claimant's treatment for her December 22, 1986 injury that refers 
 
         to a degenerative disc condition in the L4-L5 or L5-S1.  It 
 
         appears from Dr. McCarthy's analysis of the various doctors' 
 
         x-rays that some x-rays were clearer than others and that this 
 
         resulted in possible confusion as to the exact specific area of 
 
         the degeneration.  Degeneration of a disc is a gradual process 
 
         but a traumatic event can bring on symptoms that were not evident 
 
         or were not affecting a person prior to a traumatic event.  
 
         Although there appears to be a bulge in this area of the low 
 
         back, all the medical opinions agree there is no herniation of 
 
         the disc at this time.
 
         
 
              There is evidence that claimant fell at work in May 1987 and 
 
         this injury affected the neck and shoulder areas for which 
 
         claimant makes no claim.  This fall did not help her medical 
 
         condition that existed from her December 22, 1986 injury, but the 
 
         undersigned finds that this May 1987 injury has not caused any 
 
         residual effect or any exacerbation of the symptoms or disability 
 
         claimant has from her December 22, 1988 injury.
 
         
 
                          
 
                                                         
 
              Claimant has been examined by several doctors.  It appears 
 
         claimant's subjective complaints exceed the objective findings.
 
         
 
              Dr. Durward causally connected claimant's condition in her 
 
         low back to the December 22, 1986 accident.  Defendants contend 
 
         this conclusion was prompted by claimant's attorney.  In looking 
 
         at other reports of Dr. Durward, the undersigned does not believe 
 
         claimant's attorney had any effect on this doctor to conclude 
 
         something that isn't a fact.  Although the undersigned could 
 
         gleam a causal connection from the medical evidence without this 
 
         specific opinion from Dr. Durward, the medical evidence was not 
 
         as clear up to that time and clarification was helpful.
 
         
 
              The undersigned finds that claimant's disability and present 
 
         medical condition involving her low back is causally connected to 
 
         her December 22, 1986 injury and that her degenerative disc 
 
         condition that preexisted her injury was materially and 
 
         substantially aggravated so as to result,in her present low back 
 
         condition and complaints arising therefrom.
 
         
 
              The remaining issue is the nature and extent of claimant's 
 
         disability.  Drs. Donahue and Durward opined no impairment to 
 
         claimant even though repeatedly throughout their records and 
 
         correspondence they imposed a 25 pound lifting restriction and 
 
         requested claimant to avoid repetitive bending and lifting.  
 
         There is reference in one report to 30 pounds.  In one report, 
 
         Dr. Durward refers to a 75 pound restriction but the undersigned 
 
         believes this is a typographical error because two weeks later he 
 
         refers to 25 pounds and agrees with Dr. Donahue, who issued a 25 
 
         pound lifting restriction.  There is no evidence that this 25 
 
         pound restriction is other than permanent.  There is also 
 
         reference made that the claimant should change jobs or may need 
 
         to change her job.
 
         
 
              Claimant is young and has only a high school education.  She 
 
         has relied on her back for all her jobs.  It would appear 
 
         claimant's physical ability rather than mental ability is her 
 
         main asset based on her past work experience, education and 
 
         present skills.  The condition of her back will be her main asset 
 
         for future comparable work and pay.  Defendant employer has 
 
         refused to take claimant back.  In fact, when claimant took her 
 
         medical restrictions to defendant employer on or around April 1, 
 
         1988, with the intent to work back into the work force, claimant 
 
         was asked to come back Monday, April 4, 1988.  Claimant called 
 
         the plant superintendent on this Monday and defendant employer 
 
         bestowed upon her a termination greeting.  Claimant testified she 
 
         was shocked and cried.  Her reaction was reasonable.
 
         
 
              The undersigned believes a restriction or limitation caused 
 
         by a work injury and causally connected to it is an impairment or 
 
         limitation that can affect one's earning capacity.  If claimant 
 
         is not impaired, then there is absolutely no reason or excuse in 
 
         the record for defendant employer not to take claimant back.  
 
         They believe that claimant is injured and the undersigned 
 
         believes what Dr. Durward wrote on April 14, 1988, ten days after 
 
                                                
 
                                                         
 
         claimant's termination:  "Apparently she returned to work at 
 
         Farmland Foods late last week and they sacked her.  She was told 
 
         that they were doing.her a favor because this way she would not 
 
         injure her back anymore at Farmland Foods."  (Jt. Ex. 45)  If 
 
         Farmland has this attitude, then what work problems will claimant 
 
         have when she seeks employment for comparable wages at other 
 
         places of employment requiring the use of her back.  What 
 
         employer will hire a 30-year-old with a back injury, workers' 
 
         compensation claim filed, and a refusal to allow her to return to 
 
         work by her prior employer.  There is no evidence of 
 
         dissatisfaction with claimant's work pre or post 1986 injury.
 
         
 
              Claimant has not done an extensive search for jobs.  She did 
 
         apply and received unemployment benefits and complied with the 
 
         job search requirement.  A packing company in claimant's locality 
 
         closed recently.  Job opportunities in the area are scarce. 
 
         Claimant began baby-sitting in her home.  Claimant has two 
 
         children of her own.  Caring for other people's children along 
 
         with her own saves claimant child care expenses.  It would appear 
 
         claimant,will be limited to minimum wage-type work, especially if 
 
         employers have the same attitude as defendant employer.  The 
 
         undersigned believes defendant employer could have incorporated 
 
         claimant into their work force and should have made more effort, 
 
         especially since claimant's devotion to defendant resulted in her 
 
         back injury from which she now suffers.  Claimant is willing to 
 
         go back to work for defendant employer.
 
         
 
              Dr. McCarthy, a chiropractor, opined a 5 percent whole 
 
         person impairment using the AMA Guides, and considering the disc 
 
         derangements and residuals.
 
         
 
              Claimant testified she earned $8.00 when she began working 
 
         for Farmland Foods in 1977.  There is no evidence of what she was 
 
         making when terminated in 1988.  Claimant now is making $1.25 per 
 
         child per hour or $1.50 per hour for two children from the same 
 
         family.  There is no evidence of how many children are under 
 
         claimant's care in addition to her two children or what her 
 
         weekly, hourly, monthly earnings are now compared to her earnings 
 
         with Farmland Foods.  Reduction in earnings is another item to 
 
         consider in arriving at industrial disability.  Taking into 
 
         consideration those items specifically referred to above, and 
 
         considering those additional items that effect the extent of a 
 
         person's reduction in earning capacity, the undersigned finds 
 
         claimant has incurred a 30 percent industrial disability.
 
         
 
              Claimant was off work from December 23, 1986 up to and 
 
         including February 1, 1987 (5.857 weeks) and from November 9, 
 
         1987 up to and including March 31, 1988 (20.571 weeks).  During 
 
         the period from February 4, 1988 through March 28, 1988, claimant 
 
         was being tested and went through approximately seventeen 
 
         sessions with a physiotherapist at Back Rehabilitation Clinic of 
 
         America, Inc.  It appears these sessions helped claimant to some 
 
         extent. Dr. Durward kept claimant off work so that tests and 
 
         evaluations could be properly performed and monitored.  He also 
 
         wanted to determine whether surgery should be considered.  
 
                                                
 
                                                         
 
         Claimant reached reached maximum recovery on March 31, 1988.  
 
         Claimant incurred a total of 26.429 weeks of healing period.
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  Claimant incurred a work-related injury on December 22, 
 
         1986, while pulling out a 50 pound box of meat which resulted in 
 
         a disability to claimant.
 
         
 
              2.  Claimant was off work and incurred healing periods of: 
 
         From December 23, 1986 to and including February 1, 1987; from 
 
         November 9, 1987 up to and including March 31, 1988, totaling 
 
         26.429 weeks.
 
         
 
              3.  Claimant has a permanent medical restriction of not 
 
         lifting over 25 pounds and no repetitive bending or lifting.
 
         
 
              4.  Claimant was terminated from her employment after 
 
         presenting her medical restrictions to her employer.
 
         
 
              5.  Defendant employer has refused to allow a willing 
 
         claimant to return to work in fear that claimant may increase her 
 
         back injury.
 
         
 
              6.  Claimant has incurred a 5 percent impairment to her low 
 
         back as a result of her December 22, 1986 injury.
 
         
 
              7.  Claimant reached maximum recovery on March 31, 1988.
 
         
 
              8.  Claimant has a preexisting degenerative disc condition 
 
         which was materially and substantially aggravated as a result of 
 
         her injury on December 22, 1986.
 
         
 
         
 
              9.  Claimant has a reduction in earning capacity.
 
         
 
                            CONCLUSIONS OF LAW
 
         
 
              Claimant's disability is causally connected to her low back 
 
         injury on December 22, 1986.
 
         
 
              Claimant has incurred healing period benefits totaling 
 
         26.429 weeks.
 
         
 
              Claimant has a 30 percent industrial disability.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants shall pay unto claimant healing period 
 
         benefits at the rate of two hundred twenty-six and 65/100 dollars 
 
         ($226.65) for the periods beginning December 23, 1986 to and 
 
         including February 1, 1987, and November 9, 1987 up to and 
 
         including March 31, 1988, totaling twenty-six point four two nine 
 
                                                
 
                                                         
 
         (26.429) weeks.
 
         
 
              That defendants shall pay unto claimant one hundred fifty 
 
         (150) weeks of permanent partial disability benefits at the rate 
 
         of two hundred twenty-six and 65/100 dollars ($226.65), beginning 
 
         April 1, 1988.
 
         
 
              That defendants shall pay the accrued weekly benefits in a 
 
         lump sum and shall receive credit against the award for weekly 
 
         benefits previously paid.  The parties stipulated that defendants 
 
         have previously paid thirty-two point one four three (32.143) 
 
         weeks of benefits.
 
         
 
              That defendants shall pay interest on benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              That defendants shall the pay the costs of this action 
 
         pursuant to Division of Industrial Commissioner Rule 343-4.33.
 
         
 
              That defendants shall file an activity report upon payment 
 
         of this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 8th day of August, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            BERNARD J. O'MALLEY
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
 
 
                                            
 
                                                         
 
         
 
         Copies to:
 
         
 
         Mr. Sheldon M. Gallner
 
         Attorney at Law
 
         803 Third Ave.
 
         P.O. Box 1588
 
         Council Bluffs, IA  51502
 
         
 
         Ms. Judith Ann Higgs
 
         Attorney at Law
 
         200 Home Federal Bldg
 
         P.O. Box 3086
 
         Sioux City, IA  51102
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1108; 5-1803
 
                                            Filed August 8, 1989
 
                                            Bernard J. O'Malley
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PATTY LECHTENBERG,
 
         
 
              Claimant,
 
                                                     File No. 841392
 
         vs.
 
         
 
         FARMLAND FOODS,                          A R B I T R A T I 0 N
 
         
 
              Employer,                              D E C I S I 0 N
 
         
 
         v.
 
         
 
         AETNA CASUALTY & SURETY
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         5-1108
 
         
 
              Claimant's disability was found to be causally connected to 
 
         her work injury.
 
         
 
         5-1803
 
         
 
              Claimant awarded permanent partial disability benefits based 
 
         on 30% industrial disability.
 
 
 
         
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOSEPH M. LAMMER,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                   File  No.  841413
 
         FROMMELT INDUSTRIES, INC.,
 
                                               A R B I T R A T I 0 N
 
               Employer,
 
                                               D E C I S I 0 N
 
          and
 
         
 
         INTERCONTINENTAL INSURANCE
 
         MANAGERS, INC.
 
          
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Joseph M. 
 
         Lammer, claimant, against Frommelt Industries, Inc., employer 
 
         (hereinafter referred to as Frommelt), and Intercontinental 
 
         Insurance Managers, Inc., insurance carrier, defendants, for 
 
         workers' compensation benefits as a result of an alleged injury 
 
         on November 6. 1986.  On September 14, 1989, 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 November 6, 1986, claimant received an injury which 
 
         arose out of and in the course of his employment with Frommelt.
 
         
 
         
 
         
 
         LAMMER V. FROMMELT INDUSTRIES, INC.
 
         Page 2
 
         
 
         
 
              2. Claimant's entitlement to temporary total disability or 
 
         healing period benefits extends from December 2, 1986 through 
 
         August 31, .1987 and claimant has been paid this entitlement.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              3. If the injury@ is found to have caused permanent 
 
         disability, the type of disability is an industrial disability to 
 
         the body as a whole.
 
         
 
              4. If permanent disability benefits are awarded, they shall 
 
         begin as of September 1, 1987 and claimant has already been paid 
 
         weekly benefits for permanent partial disability through October 
 
         2, 1988, or a total of 56 5/7 weeks.
 
         
 
              5. Claimant's rate of weekly compensation for the November 
 
         6, 1986 injury is $184.20.
 
         
 
              6. All requested medical benefits have been or will be paid 
 
         by defendants.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for 
 
         determination in this proceeding:
 
         
 
              I. Whether there is a casual relationship between the work 
 
         injury and the claimed disability; and,
 
         
 
              II. The extent of claimant's entitlement to weekly benefits 
 
         for permanent disability.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Claimant testified that he worked for Frommelt from July 
 
         1986 until December 1, 1986 as a driller and door assembler on an 
 
         assembly line.     Claimant said that despite his extensive prior 
 
         back problems, he was able to perform this work satisfactory 
 
         although it was heavy on occasion.  Claimant earned $6.80 per 
 
         hour in this job at the time of the injury. claimant is not able 
 
         to return to work to this job due to his current work 
 
         restrictions now imposed by his physicians.  Claimant had no such 
 
         restrictions before the work injury in this case.
 
         
 
              Claimant testified that he was not injured in his normal 
 
         job duties at Frommelt.  On the day of the injury, he was 
 
         specially assigned to wheelbarrowing concrete.  He said that 
 
         after approximately one half day of this work, his foot became 
 
         entangled while lifting and pushing his wheelbarrow and he fell 
 
         onto concrete blocks reinjuring his back.  Despite the onset of 
 
         back pain, claimant stated that he con-
 
         
 
         
 
         
 
         LAMMER V. FROMMELT INDUSTRIES, INC.
 
         Page 3
 
         
 
         
 
         tinued to work because he wanted to support his family.  Claimant 
 
         was initially seen by his family physician but was later referred 
 
         to other physicians by his employer.  After conservative care 
 
         failed to alleviate claimant's pain, claimant was referred for 
 
         more extensive treatment to Eugene Herzberger, M.D., who had 
 
         treated claimant previously for back problems.  In 1975, 1978 and 
 
         1985, claimant had been diagnosed as having herniated discs at 
 
         various levels of his spine and received three separate back 
 
         surgeries.           Two of these surgeries were performed by Dr. 
 
         Herzberger.  After his examination of claimant, Dr. Herzberger 
 
         diagnosed that claimant had received yet another herniated disc 
 
         and performed a fourth surgery on claimant's back on January 15, 
 
         1987.
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              After claimant's recovery from the last surgery, Dr. 
 
         Herzberger imposed restrictions upon claimant's activity 
 
         consisting of no heavy work and stated that he suffered an 
 
         overall 25 percent permanent partial impairment to his body as a 
 
         whole as a result of all of his back injuries.  Dr. Herzberger  
 
         further opined that 10 percent of this permanent partial 
 
         impairment was attributable to the November 1986 injury.  In his 
 
         deposition, Dr. Herzberger stated that claimant should not 
 
         perform lifting while stretching and should also avoid stooping.  
 
         As stated above, with these restrictions claimant could not 
 
         return to his job at Frommelt.  Although claimant was able to do 
 
         heavy work at Frommelt prior to his injury, Dr. Herzberger 
 
         explained that this was not recommended but necessary due to 
 
         claimant's financial situation.  He stated, however, that he did 
 
         not previously impose formal restrictions.
 
         
 
              An orthopedic surgeon, John E. Sinning, M.D., also, opined 
 
         in March 1987 as to the casual connection of claimant's 
 
         difficulties.  After his review of the medical records, Dr. 
 
         Sinning concluded that the new herniated disc was the result of 
 
         the new injury of November 1986.  Dr. Sinning noted claimant's 
 
         lack of complaints and ability to perform heavy work prior to 
 
         that time.
 
         
 
              Claimant had previously been employed by Deere & Company 
 
         from 1974 until 1980.  During this time claimant performed heavy 
 
         work in the Deere foundry and in the operation of screw machines.  
 
         He also completed 4,000 hours of an 8,000 an hour electrician 
 
         apprenticeship program at Deere before his layoff in 1980.      
 
         claimant said that he cannot today perform the foundry and  screw 
 
         machine work due to his back problems.  After his layoff in 1980, 
 
         claimant worked part-time in 1984-1985 as a carpenter's helper 
 
         and seasonal work at a grain terminal loading box cars.  Both of 
 
         these jobs were physically demanding according to the evidence.
 
         
 
         
 
         
 
         LAMMER V. FROMMELT INDUSTRIES, INC.
 
         Page 4
 
         
 
         
 
              After completion of his healing period following his last 
 
         back surgery, claimant was unemployed for a considerable length 
 
         of time.  During this time, claimant attended vocational 
 
         retraining classes at a local community college and he continues 
 
         this activity at the present time.  Recently, claimant was 
 
         recalled to Deere & Company into the electrician apprenticeship 
 
         program which is within his physical restrictions according to 
 
         the Deere company doctor.  Claimant said that he still must 
 
         complete an additional 4,000 hours of the apprenticeship program 
 
         which consists both of on-the-job and classroom training.  
 
         Claimant currently earns $15.20 per hour in the apprenticeship 
 
         program which also includes extensive fringe benefits under the 
 
         union contract.  A journeyman electrician at Deere earns almost 
 
         $18.00 an hour.      However, claimant is the least senior 
 
         employee in the apprenticeship program.         Claimant would 
 
         not be able to perform any of the other jobs at Deere that he had 
 
         held in the past.  Although claimant expressed fear of a 
 
         potential layoff, Deere officials testified at hearing that they 
 
         are unaware of any current layoff plans.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant testified that he continues to have back pain 
 
         which increases with activity and must always refrain from heavy 
 
         lifting.  He states that he is able to perform his electrician 
 
         work but that he cannot engage in the same type of recreational 
 
         activities as he did before November 1986.  Claimant's 
 
         supervisors at Deere testified that claimant is a very good 
 
         employee in the apprenticeship program and that they see no 
 
         reason why he could not successfully complete the program so long 
 
         as he remains employed with them.
 
         
 
                           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 casual connection to a 
 
         physical change of condition.  Blacksmith v. 
 
         All-American,.Inc., 290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. 
 
         Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
         
 
         
 
         
 
         LAMMER V. FROMMELT INDUSTRIES, INC.
 
         Page 5
 
         
 
         
 
              The question of casual connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960) . The opinion of 
 
         experts need not be couched in definite, positive or.unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient along to support a finding of casual connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award. Giere v. Asse 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).  
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.       Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 
 
         (Iowa 1974).  To establish compensability, the injury need only 
 
         be a significant factor, not be the only factor causing the 
 
         claimed disability.  Blacksmith, 290 N.W.2d 348, 354.      In the 
 
         case of a preexisting condition, an employee is not entitled to 
 
         recover for the results of a preexisting injury or disease but 
 
         can recover for an aggravation thereof which resulted in the 
 
         disability found to exist.  Olson v. Goodyear Service Stores, 255 
 
         Iowa 1112, 125 N.W.2d 251 (1963).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              In the case sub judice, claimant has clearly established 
 
         casual connection of the injury to permanent partial impairment.  
 
         The views of the doctors giving opinions in this case are 
 
         uncontroverted.
 
         
 
              II. 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
 
         
 
         
 
         
 
         LAMMER V. FROMMELT INDUSTRIES, INC.
 
         Page 6
 
         
 
         
 
         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).
 
         
 
              Although claimant's medical condition before the work 
 
         injury was not excellent and he had significant functional 
 
         impairment prior to the injury, he was able to fully perform 
 
         physical tasks involving heavy lifting, repetitive lifting, 
 
         bending, twisting and stooping despite three back surgeries.  
 
         Claimant had no physician imposed restrictions prior to the work 
 
         injury.  Therefore, claimant's loss of earning capacity was quite 
 
         minimal despite his permanent partial impairment.
 
         
 
              Following the November 1986 injury, claimant's treating 
 
         physician has given claimant an additional permanent partial 
 
         impairment rating.  However, more importantly from an industrial 
 
         disability standpoint, claimant now has physician imposed 
 
         restrictions against heavy work and claimant expresses difficulty 
 
         with repetitive lifting and bending and stooping.  Claimant's 
 
         medical condition now, unlike before, prevents him from returning 
 
         to his work at Frommelt or any other heavy type of work.  
 
         However, claimant is able to perform medium and light work.  The 
 
         vocational counselor hired by the defense indicates that claimant 
 
         still has 97 percent of the jobs available to him in the labor 
 
         market.  However, this counselor did not perform a local labor 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         market analysis within the commuting distance of claimant's 
 
         residence.  His figures are simply those out of the nation wide 
 
         Dictionary of Occupational Titles published  by the Department of 
 
         Labor.  Therefore, the counselor's views are quite limited when 
 
         we speak of claimant's particular situation.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Apart from his lost earnings during his healing period 
 
         which was compensated by healing period benefits, claimant has 
 
         suffered a significant loss in actual earnings as a result of his 
 
         being off work for almost three years following the injury.  
 
         However, he has been able to acquire a very
 
         
 
         
 
         
 
         LAMMER V. FROMMELT INDUSTRIES, INC.
 
         Page 7
 
         
 
         
 
         good paying job at Deere & Company in the apprenticeship program 
 
         and will recoup his losses should he remain employed at Deere.  A 
 
         showing that claimant had no loss of actual earnings does not 
 
         proclude a finding of industrial disability.  See Michael v. 
 
         Harrison County,.Thirty-Fourth Biennial Report, Iowa Industrial 
 
         Commissioner 218, 220 (Appeal Decision 1979).
 
         
 
              Claimant requests that the undersigned should take into 
 
         consideration the instability of his current employment and the 
 
         plight of claimant should he lose his current job.  The 
 
         undersigned, however, has been reversed on two occasions by the 
 
         current industrial commissioner for taking into consideration 
 
         such matters.  Roach v. Firestone Tire & Rubber Co., Appeal 
 
         Decision filed August 24, 1989.  Umphress v. Armstrong Rubber 
 
         Co., Appeal Decision filed August 27, 1987.  Although Roach is 
 
         currently pending on appeal to the district court, both 
 
         constitute binding agency precedents upon the undersigned deputy 
 
         industrial commissioner.
 
         
 
              On the other hand, claimant is involved in a training or 
 
         apprenticeship program.  The industrial commissioner has also 
 
         held that predicting the success of such retraining or training 
 
         or future employment from such training should such a training be 
 
         completed is speculation and also not a proper factor in 
 
         measuring an injured worker's current industrial disability.   
 
         Stewart v. Crouse Cartage Company, Appeal Decision filed February 
 
         20, 1987.
 
         
 
              Claimant is 40 years of age and should be in the most 
 
         productive years of his life.  His loss of future earnings from 
 
         employment due to his disability is more severe than would be the 
 
         case for a younger or an older individual.
 
         
 
              Claimant has shown considerable motivation to seek 
 
         vocational retraining and remain employed despite ongoing back 
 
         pain.
 
         
 
              After examination of all the factors, it is found as a 
 
         matter of fact that claimant currently suffers from a 25 percent 
 
         loss of his earning capacity from all of his back injuries but 
 
         only five percent was attributable to his prior back injuries 
 
         before November 1986.  Based on such a finding, claimant is 
 
         entitled as a matter of law to weekly benefits for a 20 percent 
 
         industrial disability or 100 weeks of permanent partial 
 
         disability benefits under Iowa Code section 85.34(2)(u) which is 
 
         20 percent of 500 weeks, the maximum allowable number of weeks 
 
         for an injury to the body as a whole in that subsection.  It was 
 
         stipulated that claimant has already been paid 56 5/7 weeks of 
 
         permanent partial dis-
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         LAMMER V. FROMMELT INDUSTRIES, INC.
 
         Page 8
 
         
 
         
 
         ability benefits.  Defendants will therefore be ordered to pay 
 
         the balance from October 3, 1988.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1. The work injury of November 6, 1986 is a cause of a ten 
 
         percent (10%) permanent partial impairment to the body as a whole 
 
         and of permanent restrictions upon claimant's physical activity 
 
         consisting of no heavy work.  Claimant has a 15 percent 
 
         functional impairment prior to the work injury herein due to 
 
         three prior back injuries and surgeries.  However, claimant fully 
 
         recovered from each of these prior injuries and he had no 
 
         physician imposed restrictions on activity before November 6, 
 
         1988.
 
         
 
              2. The work injury of November 6, 1986, and the resulting 
 
         permanent partial impairment, is a cause of a 20 percent loss of 
 
         earning capacity.     Claimant is 40 years of age and has a GED.  
 
         He had only a five percent loss of earning capacity prior to the 
 
         work injury despite his prior physical impairment as he held and 
 
         was able to perform several jobs requiring heavy work.  
 
         Claimant's physicians imposed work/activity restrictions now 
 
         prevents a return to the job he was performing at the time of 
 
         injury and to heavy work generally.  Claimant is also unable to 
 
         return to the heavy manual labor jobs he has held.in the past.  
 
         Claimant's employment in manual labor occupations is the type of 
 
         occupations for which he is best suited given his work history 
 
         and lack of formal education.  Claimant was unemployed for 
 
         approximately three years after the work injury.  Claimant is 
 
         currently earning over twice as much in a new job but this is an 
 
         apprenticeship program which will not be completed until the 
 
         spring of 1991.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established under law entitlement to an 
 
         additional 43 2/7 weeks of permanent partial disability benefits.
 
         
 
                                      ORDER
 
         
 
              1. Defendants shall pay to claimant forty-three and 
 
         two-sevenths (43 2/7) weeks of permanent partial disability 
 
         benefits at the rate of one hundred eighty-four and 20/100 
 
         dollars ($184.20) per week from October 3, 1988.
 
         
 
              2. Defendants shall pay accrued weekly benefits in a lump 
 
         sum.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         LAMMER V. FROMMELT INDUSTRIES, INC.
 
         Page 9
 
         
 
         
 
              3. Defendants shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              4. 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 18th day of June, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                               LARRY P. WALSHIRE
 
                                               DEPUTY INDUSTRIAL 
 
         COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Michael J. Coyle
 
         Attorney at Law
 
         200 Security Bldg
 
         Dubuque IA 52001
 
         
 
         Mr. Roger L. Ferris
 
         Attorney at Law
 
         1900 Hub Tower
 
         Des Moines IA 50309
 
         
 
         Mr. Cecil L. Goettsch
 
         Attorney at Law
 
         1100 Des Moines Bldg
 
         Des Moines IA 50309
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                               5-1803
 
                                               Filed June 18, 1990
 
                                               LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOSEPH M. LAMMER,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                               File No. 841413
 
         FROMMELT INDUSTRIES, INC.,
 
                                               A R B I T R A T I 0 N
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         INTERCONTINENTAL INSURANCE
 
         MANAGERS, INC.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         5-1803 - Nonprecedential
 
         
 
              Extent of permanent partial disability benefits after a 
 
         return to work.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
              BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
            
 
TODD DANKER,     
 
            
 
     Claimant,                        File No. 841609
 
            
 
vs.                                     A P P E A L
 
            
 
IBP, INC.,                            D E C I S I O N
 
            
 
     Employer,   
 
     Self-Insured,    
 
     Defendant.       
 
_________________________________________________________________
 
 
 
The record, including the transcript of the hearing before the deputy 
 
and all exhibits admitted into the record, has been reviewed de novo on 
 
appeal.  The decision of the deputy filed July 22, 1994 is affirmed and 
 
is adopted as the final agency action in this case.
 
 
 
Defendant shall pay the costs of the appeal, including the preparation 
 
of the hearing transcript.
 
 
 
Signed and filed this ____ day of February, 1995.      
 
                              ________________________________                 
 
                              BYRON K. ORTON           
 
                              INDUSTRIAL COMMISSIONER
 
 
 
Copies To:
 
 
 
Mr. Paul T. Kirchner
 
Attorney at Law
 
P.O. Box 515, Dept. 41
 
Dakota City, Nebraska  68731
 
 
 
Mr. Sheldon Gallner
 
Attorney at Law
 
803 3rd Avenue
 
P.O. Box 1588
 
Council Bluffs, Iowa  51502
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                  5-1803
 
                                  Filed February 27, 1995
 
                                  Byron K. Orton
 
                    
 
           BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
________________________________________________________________
 
          
 
TODD DANKER,  
 
                                     File No. 841609
 
     Claimant, 
 
          
 
vs.               
 
          
 
IBP INC.,                              A P P E A L
 
          
 
     Employer,                      D E C I S I O N
 
     Self-Insured,  
 
     Defendant.     
 
          
 
________________________________________________________________
 
5-1803
 
Claimant sustained a crush injury to his left hand.  He entered into an 
 
agreement for settlement in 1992.
 
 
 
Claimant sought to reopen the settlement pursuant to Mortimer v. 
 
Fruehauf Corp., 502 N.W.2d 12 (Iowa 1993).
 
 
 
Claimant found permanently and totally disabled.  At the time of the 
 
AGFS, claimant had been diagnosed with major depressive disorder.  
 
Defendant's physician predicted a full recovery, and return to work, 
 
provided claimant was afforded appropriate psychiatric care.
 
 
 
Claimant was not afforded the same.  Held that a change of condition 
 
had occurred and claimant's disability would not be analyzed on an 
 
industrial disability basis under Mortimer.
 
 
 
 
            
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            TODD DANKER,                  :
 
                                          :       File No. 841609
 
                 Claimant,                :
 
                                          :
 
            vs.                           :        R E V I E W -
 
                                          :
 
            IBP INC.,                     :      R E O P E N I N G
 
                                          :
 
                 Employer,                :       D E C I S I O N
 
                 Self-Insured,            :
 
                 Defendant.               :
 
                                          :
 
            ------------------------------------------------------------
 
                           STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in review-reopening brought by 
 
            claimant, Todd Danker, against his former employer, IBP, 
 
            inc.  
 
            
 
                 Mr. Danker sustained an injury on December 24, 1986, 
 
            which arose out of and in the course of his employment.  
 
            Claimant entered into an agreement for settlement with the 
 
            employer on June 4, 1992.  
 
            
 
                 Claimant filed his petition (initially as an 
 
            arbitration proceeding) on July 14, 1993.  He later amended 
 
            the petition to a review-reopening proceeding. 
 
            
 
                 The case came on for a hearing before the undersigned 
 
            deputy industrial commissioner on May 23, 1994.  The 
 
            evidence consists of testimony from the claimant and Sheila 
 
            Danker (claimant's sister); and, joint exhibits I and II.  
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for 
 
            resolution:
 
            
 
                 1.  Whether claimant is entitled to additional 
 
            permanent partial disability benefits; and, 
 
            
 
                 2.  Whether claimant is entitled to alternate medical 
 
            treatment, as provided by Iowa Code section 85.27. 
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Claimant, Todd Danker, was born on October 5, 1961.  At 
 
            the time of the hearing, he was 32 years of age.  Currently, 
 
            he resides in Council Bluffs, Iowa. 
 
            
 
                 Claimant is a high school graduate, and attended 
 
            William Penn College in Oskaloosa, Iowa for two years.  
 
            Apparently, his long-term goal was to acquire a degree in 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            industrial engineering, a job claimant envisioned as working 
 
            with bearings, sprockets, and calipers; monitoring 
 
            equipment; and, formatting manufacturing plants for optimum 
 
            efficiency and productivity.  Claimant explained that in 
 
            1983, he quit college due to the high cost of tuition.
 
            
 
                 Claimant's work history includes a position with 
 
            Precision Bearing, and a position as an "instrument man" 
 
            with the defendant employer.  As an instrument man, claimant 
 
            worked with various machines at the plant.  On December 24, 
 
            1986, claimant was repairing a chain on a machine.  In order 
 
            to access the chain, he took off the guard.  As claimant was 
 
            working on the machine, another employee turned on the 
 
            machine, and claimant's left hand was severely injured.  
 
            Claimant testified that he has undergone six or seven 
 
            surgeries to repair the hand.  Additionally, claimant has 
 
            undergone extensive programs of physical and occupational 
 
            therapy, and numerous evaluations regarding the condition of 
 
            the left hand.  (Joint exhibits 6-13)   
 
            
 
                 In addition to medical treatment rendered for the hand 
 
            injury, claimant has also received treatment for mental 
 
            depression.  According to the evidence, he initially 
 
            received psychiatric treatment from Robert Muffly, M.D., in 
 
            July of 1989.  At that time, the diagnosis was that of 
 
            adjustment reaction with anxious mood, with symptoms of 
 
            "generalized anxiety, insomnia, weight loss, increase in 
 
            smoking and alterations in interpersonal relationships."  
 
            (Jt. Ex. 5)  Dr. Muffly indicated that there were no 
 
            significant restrictions of the activities of daily living; 
 
            claimant had difficulties in maintaining social functioning; 
 
            claimant's symptoms were chronic; claimant was able to 
 
            sustain concentration and attention needed for task 
 
            completion; claimant possessed the ability to understand, 
 
            remember, and carry out short and simple instructions; and, 
 
            claimant was able to adapt to changes in his environment, 
 
            with some impairment.  (Jt. ex. 5a)  Dr. Muffly also 
 
            supplied the following opinion in July of 1989:
 
            
 
                   As you are aware, I have been seeing Mr. Todd 
 
                 Danker.  You probably are aware of the history of 
 
                 his injuries and the multiple surgeries that are a 
 
                 result
 
            there of [sic].
 
            
 
                    The post traumatic stress disorder is a 
 
                 specific condition with specific manifestations 
 
                 that occurs in some individuals following an 
 
                 exposure to a severe trauma situation.  This is 
 
                 not to say however, that other sequela of an 
 
                 emotional illness cannot occur following trauma 
 
                 and this would apply to Mr. Danker.  He has an 
 
                 anxiety disorder manifested by sleep disturbance, 
 
                 problems in re-adjusting his body schema to 
 
                 accommodate the loss of function of his left hand, 
 
                 and problems in accepting the distorted appearance 
 
                 of his left hand.  It would seem that there has 
 
                 been some overall change in his reaction to daily 
 
                 living as well.  Quite distinctly, there is a 
 
                 connection between the injuries he suffered and 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 his current emotional state; some of which are 
 
                 quite overt and others that appear to be more 
 
                 subtle.  It is too early to ascertain any 
 
                 permanency of the psychiatric distress however, 
 
                 the body image problems and anxiety distress as 
 
                 related to the injuries are likely to have some 
 
                 permanency.
 
            
 
            (Jt. Ex. 5b)
 
            
 
                 Subsequently, claimant was treated by Michael Taylor, 
 
            M.D., a psychiatrist located in Des Moines, Iowa.  In 
 
            December of 1990, he diagnosed claimant's condition as one 
 
            of major depressive disorder related to the industrial 
 
            injury, and believed claimant had a "good prognosis, if Mr. 
 
            Danker cooperates with recommended treatment and if he gets 
 
            care for other medical problems...not causedly [sic] related 
 
            to his industrial injury."  (Jt. Ex. 2a) Apparently, Dr. 
 
            Taylor believed claimant suffered from episodic alcohol and 
 
            prescription drug abuse.  (Jt. Ex. 2d, p. 3)  In any event, 
 
            Dr. Taylor recommended claimant seek treatment from the 
 
            University of Iowa Hospitals and Clinics.  (Jt. Ex. 2a).
 
            
 
                 In March of 1991, claimant was evaluated by Douglas 
 
            Langbehn, M.D., and Linda Merchant, M.D., both of whom were 
 
            with the psychiatric outpatient clinic at the University of 
 
            Iowa.  Both diagnosed claimant's condition as major 
 
            depressive disorder, with cognitive focus on the accident 
 
            and subsequent physical and financial disability.  It was 
 
            recommended claimant continue with antidepressants, despite 
 
            his reluctance to do so.  Likewise, psychotherapy was 
 
            recommended.  Drs. Langbehn and Merchant indicated the need 
 
            for claimant to travel a total of 480 miles per visit was an 
 
            unrealistic arrangement, and they recommended referral to a 
 
            local psychiatrist.  (Jt. Ex. 3b)
 
            
 
                 Claimant returned to Dr. Taylor, and in September of 
 
            1991 was hospitalized for treatment of multiple depressive 
 
            symptoms.  After a six-week stay, claimant was discharged 
 
            with prescriptions for Ludiomil and Xanax to treat his major 
 
            depressive disorder.  He was to receive follow-up treatment 
 
            with Dr. Taylor, but apparently missed several appointments 
 
            due to lack of transportation from Council Bluffs to Des 
 
            Moines.  The record indicates that these missed appointments 
 
            fostered some animosity.  It is noted that the employer 
 
            offered to advance claimant travel money.  (Jt. Exs. 4a-i 
 
            and 18).
 
            
 
                 In his deposition, taken January 29, 1992, Dr. Taylor 
 
            opined that claimant's depression was related to his 
 
            industrial accident, but that claimant had not sustained any 
 
            permanent impairment due to the psychiatric condition.  (Jt. 
 
            Ex. 14, pp. 13-16)
 
            
 
                 In March of 1992, claimant was evaluated by James 
 
            Severa, M.D., a psychiatrist in Omaha, Nebraska.  After a 
 
            review of some of the medical records, and an examination, 
 
            Dr. Severa diagnosed claimant as having significant major 
 
            depression with complication anxiety.  Post traumatic stress 
 
            disorder was also a contemplated diagnosis.  Dr. Severa 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            recommended prescription medication therapy and counseling 
 
            with a rehabilitation specialist.  Dr. Severa treated 
 
            claimant for several months, but the defendant allowed only 
 
            Dr. Taylor as the authorized treating physician.  (Jt. Ex. 
 
            1d-g).  The record indicates that claimant did not return to 
 
            Dr. Taylor, for a variety of reasons, including the 
 
            inability to secure reliable transportation to travel from 
 
            Council Bluffs to Des Moines, and a breakdown in 
 
            communication between Dr. Taylor and claimant.    
 
            
 
                 Eventually, claimant applied for and received social 
 
            security disability benefits.  As a result, he was 
 
            financially able to seek treatment, and returned to Dr. 
 
            Severa.  In February of 1994, Dr. Severa and Joyce Sasse, 
 
            R.N., provided two reports addressing claimant's condition.   
 
            Diagnostically, he continued to suffer from major 
 
            depression, and both practitioners recommended further 
 
            counseling, additional drug therapy and a battery of tests.  
 
            (Jt. Ex. 1a-b)
 
            
 
                 Currently, claimant attests to no career goals, and 
 
            other than fishing, participates in no social activities.  
 
            It seems his only contact with people outside of his family 
 
            is with Dr. Severa and Ms. Sasse.  He is self-conscious 
 
            about the appearance of his left hand, and views himself 
 
            differently because of the loss of use of the hand.  He 
 
            finds it difficult to concentrate and sleep, due to 
 
            nightmares about the industrial accident, and he is 
 
            unmotivated.  
 
            
 
                          ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 The first issue to address is whether claimant is 
 
            entitled to additional permanent partial disability 
 
            benefits. 
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. App. P. 14(f).
 
            
 
                 Upon review-reopening, claimant has the burden to show 
 
            a change in condition related to the original injury since 
 
            the original award or settlement was made.  The change may 
 
            be either economic or physical.  Blacksmith v. All-American, 
 
            Inc., 290 N.W.2d 348 (Iowa 1980); Henderson v. Iles, 250 
 
            Iowa 787, 96 N.W.2d 321 (1959).  A mere difference of 
 
            opinion of experts as to the percentage of disability 
 
            arising from an original injury is not sufficient to justify 
 
            a different determination on a petition for 
 
            review-reopening.  Rather, claimant's condition must have 
 
            worsened or deteriorated in a manner not contemplated at the 
 
            time of the initial award or settlement before an award on 
 
            review-reopening is appropriate.  Bousfield v. Sisters of 
 
            Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957).  A failure of a 
 
            condition to improve to the extent anticipated originally 
 
            may also constitute a change of condition.  Meyers v. 
 
            Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa Ct. 
 
            App. 1978).
 
            
 
                 Defendant argues that the only change present in this 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            case is a change in the law, and that a change in the law is 
 
            not sufficient to reopen a previous workers' compensation 
 
            award.  Defendant is referring to the recent Iowa Supreme 
 
            Court case, Mortimer v. Fruehauf Corp., 502 N.W.2d 12 (Iowa 
 
            1993).  
 
            
 
                 In Mortimer, the court determined that claimants who 
 
            sustain injuries to scheduled members may be entitled to an 
 
            award of industrial disability if it is shown that due to 
 
            the injury, they suffer a psychological condition.  Mortimer 
 
            at 17.
 
            
 
                 Defendant also argues that claimant's condition has not 
 
            worsened so as to warrant a review and reopening of his 
 
            claim.  To support the argument, IBP states that claimant's 
 
            condition and symptomatology are the same today as in May of 
 
            1992, when the parties entered into the agreement for 
 
            settlement.  The defendant points out that, at least in 
 
            1991, Dr. Taylor did not believe claimant had sustained any 
 
            permanent psychological condition.  While recognizing that 
 
            in 1994 Dr. Severa opined that claimant had sustained a 30 
 
            percent impairment (due to physiological symptomatology, 
 
            depression and G.I. distress), the defendant argues that 
 
            comparing Dr. Taylor's assessment to Dr. Severa's assessment 
 
            "is attempting to compare apples and oranges," and states 
 
            that Dr. Severa told the social security administration in 
 
            1992 that claimant had a substantial disability.  (It should 
 
            be noted that Dr. Severa's report to the disability 
 
            determinations service bureau was made on July 28, 1992).
 
            
 
                 It would be difficult to conclude that claimant's 
 
            condition has not changed since June 4, 1992, the date the 
 
            agreement for settlement was approved by this agency.  Up 
 
            until that point, the record suggests that claimant would be 
 
            able to secure gainful employment, and, with the correct 
 
            medical treatment, he would be able to overcome his bout 
 
            with depression.  The record clearly shows that the 
 
            defendant failed to supply the medical attention 
 
            necessitated by the work-related injury.  Requiring claimant 
 
            to travel from Council Bluffs to Des Moines on a regular 
 
            basis is unreasonable.  Not only are there many qualified 
 
            psychiatrists in the Council Bluffs-Omaha area, but 
 
            defendant was aware that claimant did not have reliable 
 
            transportation.  If claimant had received the necessary 
 
            medical treatment he deserved, perhaps he would not be in 
 
            the mental state he is in presently.  
 
            
 
                 In 1990, defendant's own authorized treating 
 
            psychiatrist, Dr. Taylor, emphasized claimant's need for 
 
            continued treatment.
 
            
 
                 Claimant has shown by a prove by a preponderance of the 
 
            evidence that his economical condition has changed since the 
 
            agreement for settlement was entered into by the parties and 
 
            approved by the agency.  Dr. Taylor's assessment that 
 
            claimant would return to gainful employment, has not come to 
 
            fruition.  See, Hart v. French & Hecht, (App Dec. File No. 
 
            816126, November 30, 1993)
 
            
 
                 As a result, it is found that claimant has sustained 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            his burden of proof, and has shown by a preponderance of the 
 
            evidence that he has had a change of condition to warrant a 
 
            reopening of his award.  
 
            
 
                 Therefore, an analysis of his industrial disability is 
 
            warranted. 
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            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).
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 Claimant has not worked in eight years.  While he may 
 
            be able to physically perform a myriad of jobs with various 
 
            duties and requirements, it is unlikely he would assimilate 
 
            into any work place with ease, or without a great amount of 
 
            assistance.  
 
            
 
                 Claimant is young, and appeared to be of average to 
 
            above average intelligence.  His potential for job training, 
 
            technical training or further education is good.  However, 
 
            to accomplish any realistic, long-term goals for 
 
            reemployment, it appears claimant needs extensive, 
 
            consistent, psychiatric treatment.  
 
            
 
                 Presently, it appears claimant is incapable of working.  
 
            As a result, he is permanently, totally disabled.  
 
            
 
                 Finally, the parties have submitted whether claimant is 
 
            entitled to alternate medical treatment. 
 
            
 
                 Iowa Code section 85.27 provides, in relevant part:
 
            
 
                    The employer, for all injuries compensable 
 
                 under this chapter or chapter 85A, shall furnish 
 
                 reasonable surgical, medical, dental, osteopathic, 
 
                 chiropractic, podiatric, physical rehabilitation, 
 
                 nursing, ambulance and hospital services and 
 
                 supplies therefor and shall allow reasonably 
 
                 necessary transportation expense incurred for such 
 
                 services.
 
            
 
                    ....
 
            
 
                 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.
 
            
 
                 As stated previously, defendant's choice of Dr. Taylor 
 
            as the authorized treating physician is unreasonable and 
 
            unacceptable.  Round trip, claimant would have to travel at 
 
            last 240 miles for each appointment.  They are ordered to 
 
            authorize a psychiatrist in the Council Bluffs-Omaha area.  
 
            It is highly recommended that defendant provide claimant 
 
            with treatment from Dr. Severe.
 
            
 
                                       
 

 
            
 
            Page   8
 
            
 
            
 
                                     ORDER
 
            
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendant shall pay claimant permanent partial 
 
            disability benefits at the rate of one hundred eighty-three 
 
            and 27/100 dollars ($183.27) per week commencing December 1, 
 
            1993.
 
            
 
                 That defendant shall pay accrued weekly benefits in a 
 
            lump sum, and shall receive credit for benefits previously 
 
            paid.
 
            
 
                 That defendant shall pay for medical expenses incurred 
 
            by claimant, as provided for under Iowa Code section 85.27.
 
            
 
                 That defendant shall pay interest on the award, as 
 
            governed by Iowa Code section 85.30.
 
            
 
                 That defendant shall pay the costs of this action.
 
            
 
                 That defendant shall file a claims activity report as 
 
            required by the agency.
 
            
 
                 Signed and filed this ____ day of July, 1994.
 
            
 
            
 
                                          
 
                                           ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Sheldon Gallner
 
            Attorney at Law
 
            803 Third Ave
 
            P O Box 1588
 
            Council Bluffs IA 51502
 
            
 
            Mr John M Comer
 
            Attorney at Law
 
            P O Box 515  Mail #41
 
            Dakota City NE 68731
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 5-1803
 
                                                 Filed July 22, 1994
 
                                                 Patricia J. Lantz
 
            
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            TODD DANKER,                  :
 
                                          :       File No. 841609
 
                 Claimant,                :
 
                                          :
 
            vs.                           :        R E V I E W -
 
                                          :
 
            IBP INC.,                     :      R E O P E N I N G
 
                                          :
 
                 Employer,                :       D E C I S I O N
 
                 Self-Insured,            :
 
                 Defendant.               :
 
                                          :
 
            ------------------------------------------------------------
 
            5-1803
 
            
 
            Claimant sustained a crush injury to his left hand.  He 
 
            entered into an agreement for settlement in 1992.
 
            Claimant sought to reopen the settlement pursuant to 
 
            Mortimer v. Fruehauf Corp., 502 N.W.2d 12 (Iowa 1993).
 
            Claimant found permanently and totally disabled.  At the 
 
            time of the AGFS, claimant had been diagnosed with major 
 
            depressive disorder.  Defendant's physician predicted a full 
 
            recovery, and return to work, provided claimant was afforded 
 
            appropriate psychiatric care.
 
            
 
            Claimant was not afforded the same.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOHN SULLIVAN,
 
         
 
              Claimant,                               File No. 841627
 
         
 
         vs.                                       A R B I T R A T I O N
 
         
 
         DIVERSIFIED INDUSTRIAL                       D E C I S I O N
 
         SERVICES,
 
         
 
              Employer,                                  F I L E D
 
         
 
         and                                            JAN 16 1990
 
         
 
         CIGNA,                                     INDUSTRIAL SERVICES
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by John Sullivan 
 
         against Diversified Industrial Services, his former employer, and 
 
         its insurance carrier, Cigna.  The case was heard and fully 
 
         submitted at Cedar Rapids, Iowa, on April 21, 1989.  The record 
 
         in the proceeding consists of testimony from John Sullivan and 
 
         Kent Jayne.  The record also contains claimant's exhibits 1, 2, 
 
         3, 4 and 6 and defendants' exhibits A, B, G, H, I, J, L, M, N, 0 
 
         and Q. The last page of claimant's exhibit 3 is with the record 
 
         as an offer of proof.
 
         
 
                                      ISSUES
 
         
 
              Claimant seeks compensation for healing period and permanent 
 
         partial disability as a result of an injury which occurred on 
 
         November 7, 1986.  The issues to be determined as shown by the 
 
         prehearing report and as limited by the hearing assignment order 
 
         are:  Whether there is a causal connection between the injury and 
 
         any disability which claimant has experienced; determination of 
 
         claimant's entitlement to weekly compensation for healing period 
 
         and permanent partial disability.  The hearing assignment order 
 
         did not indicate that the rate of compensation was disputed, but 
 
         at the time of hearing, the prehearing report disclosed a dispute 
 
         regarding the rate.
 
         
 
                               SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Only the evidence most pertinent to this decision is 
 
         discussed, but all of the evidence received at the hearing was 
 
         considered in arriving at this decision.  Conclusions about what 
 
         the evidence showed are inevitable with any summarization.  The 
 
         conclusions in the following summary should be considered to be 
 
         preliminary findings of fact.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              John Sullivan is a 41-year-old married man who lives at 
 
         Cedar Rapids, Iowa.  Sullivan dropped out of formal schooling 
 
         during the tenth grade, but has obtained a high school diploma 
 
         through the Kirkwood Community College Adult Education Program.  
 
         Sullivan studied liberal arts at the Kirkwood Community College 
 
         for approximately two years, majoring in art, but did not receive 
 
         a degree or certificate.
 
         
 
              Claimant's work experience includes working as a 
 
         construction laborer and working at a gas station.  In 1973 he 
 
         entered the ironworker apprentice program.  In 1976 he became a 
 
         journeyman ironworker.  Sullivan testified that he performed 
 
         ironwork in the Cedar Rapids, Iowa area for approximately one 
 
         year and then moved to California where he initially worked as a 
 
         carpenter and then entered the ironwork trade.
 
         
 
              Sullivan testified that in 1980, while working in 
 
         California, he fell and injured a kidney, for which he was off 
 
         work for approximately one to one and one-half months.  He stated 
 
         that he returned to work without restrictions and worked steadily 
 
         for approximately a year until another accident in late 1981 
 
         which caused trouble with his right knee.  Claimant stated that 
 
         while recovering from knee surgery, his legs began to go to 
 
         sleep.  He stated that he was treated with traction for his back.  
 
         Claimant stated that he made a workers' compensation claim in 
 
         California for his knee and back and received a lump sum 
 
         settlement.  Claimant testified that when he returned to Iowa in 
 
         mid-1983, he had no known medically imposed restrictions upon his 
 
         activities and was not aware of.any permanent loss of range of 
 
         motion or loss of strength affecting his body.
 
         
 
              Sullivan stated that when he returned to Iowa, his knee was 
 
         healed and he was not having any problems with his legs.  He 
 
         completed a one and one-half year welding course at the Kirkwood 
 
         Community College and received a welding specialist degree. 
 
         Claimant stated that he can perform all common forms of welding.
 
         
 
              Sullivan testified that in 1984 he resumed ironwork where 
 
         his primary activity was welding.  He stated that welding was not 
 
         as strenuous as structural ironwork, but that it could be very 
 
         strenuous at times.  He stated that work could be performed at 
 
         heights of 300 feet.  He stated that the work required bending, 
 
         stooping and a lot of twisting.  Sullivan stated that at times he 
 
         would have a backache and fatigue, but that he recalled no 
 
         injuries to his knee or back from 1984 until November 7, 1986 
 
         when the incident which is the subject of this case occurred.
 
         
 
              Sullivan testified that he had started welding reinforcing 
 
         steel on trusses at the John Deere Engine Works in Waterloo in 
 
         October 1986.  Claimant stated that on November 7, 1986, he fell 
 
         8-10 feet from the scaffold on which he was working, landing on 
 
         his stomach on the bottom core of the truss where he had been 
 
         welding. He stated that he landed with his feet on one side of 
 
         the truss and his upper body on the other side.  Claimant stated 
 
         that his elbow was bleeding and that he hurt all over, in 
 
         particular his stomach and back.  Claimant sought medical 
 
         treatment and was seen and released from the Covenant Medical 
 
         Center Emergency Room (exhibit M).  Claimant was found to have 
 
         blood in his urine and was referred to Dennis L. Boatman, M.D.  
 
         Dr. Boatman diagnosed claimant as having suffered a left renal 
 
         contusion in the fall.  When he discharged claimant, he found 
 
         claimant to have no urological restrictions.  Dr. Boatman stated 
 
         that claimant had recovered significantly to be able to return to 
 
         full work on January 9, 1987 as far as the kidney injury was 
 
         concerned (exhibit 2, pages 12 and 13).  He stated that claimant 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         had no permanent disability resulting from the kidney injury 
 
         (exhibit 2, page 9)
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              As claimant recovered from the kidney injury, he made 
 
         complaint of back pain.  He sought treatment from W. John Robb, 
 
         M.D., a Cedar Rapids orthopaedic surgeon.  Dr. Robb diagnosed 
 
         claimant as having a lumbosacral strain (exhibit 1, pages 1 and 
 
         2).  Dr. Robb entered claimant into an extended course of 
 
         physical therapy and work hardening, but claimant's symptoms did 
 
         not improve.  Dr. Robb finally diagnosed claimant as having 
 
         chronic recurrent lumbosacral strain.  He indicated that claimant 
 
         would be unable to return to his previous occupation of ironwork.  
 
         He recommended that claimant perform only limited bending and 
 
         stooping and that his lifting be restricted to 35 pounds maximum 
 
         and 20 pounds on a repetitive basis.  Dr. Robb indicated that 
 
         claimant had achieved maximum healing from the injury on 
 
         September 30, 1987 (exhibit 1, pages 3 and 4).
 
         
 
              Claimant then entered into a course of treatment under the 
 
         direction of Iowa City neurologist Richard F. Neiman, M.D.  On 
 
         October 6, 1987 claimant underwent diagnostic tests which showed 
 
         claimant to have what Dr. Neiman considered to be a congenital 
 
         malformation in the nature of sacralization of a vertebra 
 
         (exhibit 3, pages 21, 22 and 24).  Dr. Neiman placed claimant 
 
         into further therapy.  On January 14, 1988 Dr. Neiman indicated 
 
         that claimant was feeling better and increased his lifting 
 
         restrictions from 25 pounds to 35 pounds frequently and from 35 
 
         to 50 pounds maximum (exhibit 3, page 25).  On April 20, 1988 he 
 
         rated claimant as having a ten percent impairment and opined that 
 
         claimant had reached maximum healing (exhibit 3, page 27).  On 
 
         August 18, 1988 Dr. Neiman ratified his prior impairment rating 
 
         and activity restrictions (exhibit 3, page 29).  Dr. Neiman 
 
         stated that claimant needed to change occupations (exhibit 3, 
 
         pages 18-20).
 
         
 
              After the injury, claimant resumed training at the Kirkwood 
 
         Community College.  He attempted to enter the "construction 
 
         technology program," but was denied economic assistance due to 
 
         what were perceived to be inadequate math skills (exhibit 4).
 
         
 
              Candice W. Kaelber, a vocational consultant, became involved 
 
         in claimant's case commencing with a letter to claimant on July 
 
         28, 1987.  Kaelber monitored claimant's activities at the 
 
         Kirkwood Community College, found some job leads and monitored 
 
         claimant's own job seeking activities.  She closed the file on 
 
         February 29, 1988 without finding work for claimant (exhibit A).
 
         
 
              Kent Jayne, a certified rehabilitation consultant, testified 
 
         that the average median wage for Iowa welders is approximately 
 
         $10.00 per hour according to the Division of Job Service survey. 
 
         Jayne stated that.union shops generally pay higher wages than 
 
         non-union shops.  He did not investigate the job market or pay 
 
         scale for welders in the Cedar Rapids area.
 
         
 
              Claimant stated that while his back has improved, it still 
 
         hurts and that he experiences burning in his low back, belt line, 
 
         arms and legs.  He rated his level of pain as 7 on a scale of 1 
 
         to 10 with 10 being the worst.  Sullivan stated that the pain is 
 
         increased by long periods of driving a car or if he lifts 
 
         anything heavy.  He estimated that he could sit or stand for 
 
         approximately one-half hour before the pain became bad, but that 
 
         the pain could be relieved by changing position.  Sullivan stated 
 
         that bending at the waist is the most painful.  He expressed 
 
         problems with sleeping at night.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Sullivan testified that he would be unable to return to 
 
         ironworking due to the requirements for climbing, lifting and 
 
         working in awkward positions.
 
         
 
              Sullivan testified that he finally found a job approximately 
 
         one and one-half months after Candice Kaelber closed his file. 
 
         Claimant stated that he currently works at Product Design & 
 
         Fabrication.  He works as a welder fabricating tractor parts. 
 
         Claimant stated that he is currently paid $6.50 per hour, but 
 
         receives no fringe benefits.  Claimant related that he gets tired 
 
         and fatigued, but is free to sit or stand as he deems 
 
         appropriate. He stated that he has continued to seek other 
 
         employment, but has been unsuccessful.
 
         
 
              Sullivan testified that he was paid approximately $13.00 per 
 
         hour and enjoyed a liberal fringe benefit package when he was 
 
         employed by Diversified Industrial Services.  He stated that he 
 
         had worked fairly steadily during 1985 and 1986 and had been off 
 
         work for only approximately two weeks prior to the accident that 
 
         occurred in 1986.  Claimant stated that ironwork in the Cedar 
 
         Rapids area is primarily, though not exclusively, seasonal.  He 
 
         stated that he had worked during the winter months of 1984 
 
         through 1986.  Sullivan stated that the current rate of pay for a 
 
         union ironworker welder is approximately $18.00 per hour and that 
 
         ample work is available.  Sullivan also testified that in 1986 
 
         the total income earned by both himself and his wife was 
 
         approximately $30,000 and that in 1987 his wife's earnings wore 
 
         approximately $17,000.  Claimant stated that his wife was 
 
         employed at the same job during all of calendar years 1986 and 
 
         1987.
 
         
 
              When testifying, claimant was questioned concerning answers 
 
         to interrogatories.  Claimant had not disclosed any history of 
 
         back injuries or back problems prior to the November 7, 1986 
 
         incident.  Claimant disclosed the existence of a prior back 
 
         injury when he was deposed eight days prior to the date of the 
 
         hearing in this case.  The records from Drs. Robb and Neiman do 
 
         not contain any history of a prior back injury, though claimant 
 
         testified that he told Dr. Neiman of his prior back problems.  
 
         The vocational consultant reports do not contain any history of 
 
         prior back problems.
 
         
 
              Exhibit H indicates that claimant was examined by W. Gordon 
 
         Smith, M.D., on July 20, 1982 for low back problems.  At that 
 
         time claimant voiced complaints of pain in his lumbosacral spine 
 
         which radiated both to the right and left.  He described the pain 
 
         as being constant and aggravated by lifting in excess of 40 
 
         pounds, bending, or prolonged standing or sitting.  He reported 
 
         that occasionally he experienced a shooting pain and numbness 
 
         which ran down his legs to the bottoms of his feet.  Dr. Smith 
 
         indicated that claimant had a congenital sacralization at the 
 
         lumbosacral junction.  He felt that the injury which claimant had 
 
         suffered in a fall that occurred in 1980 had aggravated that 
 
         preexisting condition.  Dr. Smith recommended that claimant 
 
         perform no heavy lifting and that he seek vocational 
 
         rehabilitation.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant was treated by Jean E. Michels, M.D., during parts 
 
         of 1981 and 1982.  Dr. Michels performed arthroscopic surgery on 
 
         claimant's right knee and also noted a congenital vertebral 
 
         abnormality.  Dr. Michels diagnosed claimant as having a 
 
         lumbosacral sprain and recommended that he seek rehabilitation 
 
         and not return to ironwork.  Dr. Michels stated that claimant had 
 
         a disability which prevented him from resuming his customary 
 
         occupation and that 50 percent of the disability was due to the 
 
         condition of his back while the other 50 percent was due to the 
 
         condition of his knee.  No permanent impairment rating for the 
 
         back or knee was provided (exhibit I).
 
         
 
              Vocational rehabilitation counselor James C. Ellis 
 
         considered claimant's situation in late 1982.  Ellis concluded 
 
         that claimant was physically unable to resume his usual and 
 
         customary occupation of an ironworker.  Ellis recommended that 
 
         claimant seek rehabilitation (exhibit J).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The dispute in the case centers upon whether claimant 
 
         injured his back when he fell on November 7, 1986.  He clearly 
 
         suffered an injury to his elbow and an injury to a kidney.  
 
         Claimant clearly had a preexisting condition affecting his low 
 
         back.  It could reasonably be expected that a fall of the type 
 
         that claimant described would aggravate a preexisting condition 
 
         such as the one which was found in 1982 by the physicians in 
 
         California.
 
         
 
              The record clearly establishes that claimant failed to 
 
         disclose his prior back problems when appropriate interrogatories 
 
         were propounded to him.  The records of claimant's treating 
 
         physicians following the 1986 injury do not contain any reference 
 
         to prior low back problems.  The failure to disclose the 
 
         preexisting condition or the existence of any prior workers' 
 
         compensation claims for the back problem in his discovery 
 
         responses effectively impeaches claimant and impairs the 
 
         credibility of his testimony.
 
         
 
              Claimant was treated by W. John Robb, M.D., a qualified 
 
         orthopaedic surgeon.  Dr. Robb's assessment of the case is 
 
         accepted as being correct.  In particular, it is determined that 
 
         claimant did suffer a lumbosacral strain when he fell on November 
 
         7, 1986.  It is determined that his maximum healing occurred 
 
         September 30, 1987.  Dr. Robb's assessment that claimant is 
 
         unable to return to his previous occupation as an ironworker is 
 
         likewise accepted as being correct as are the activity 
 
         restrictions.  The ten percent impairment rating of claimant's 
 
         body as a whole as assigned by Dr. Neiman seems reasonable and is 
 
         accepted as being correct.
 
         
 
              The troublesome portion of this case is that claimant had 
 
         voiced the same complaints in 1982 as he voiced at hearing.  The 
 
         congenital abnormality which was identified by Dr. Neiman had 
 
         been found in 1982.  The 1982 injury was also determined to be an 
 
         aggravation of a preexisting condition.  When claimant resumed 
 
         ironwork, he did so contrary to the recommendations of the 
 
         physicians who had treated him in 1982.  Claimant testified that 
 
         he had no significant problems with his back during the timespan 
 
         of 1984 through 1986, until he fell, but his credibility has been 
 
         impaired.  This case presents a situation wherein the claimant 
 
         has experienced two falls when working at heights.  While the 
 
         ironworker wage scale is quite favorable, work is not steadily 
 
         available.  There is an irreconcilable conflict between 
 
         claimant's testimony that he was earning approximately $13.00 per 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         hour and steadily employed during 1986 and his testimony that the 
 
         joint earnings of both himself and his wife in 1986 were $30,000, 
 
         particularly if his wife's income was in the range of $15,000.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              There is no concrete or definitive evidence that the 
 
         condition of claimant's back has changed appreciably from that 
 
         which existed in 1982.  Claimant's testimony that his resumption 
 
         of work in 1984 was without back problems is not convincing.  The 
 
         current complaints which claimant makes are as attributable to 
 
         the congenital condition as to any injury and are no more 
 
         convincing than the testimony regarding lack of complaints during 
 
         the 1984 through 1986 timespan.
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W.2d 899, 902 (1935) as follows:  "It is therefore 
 
         plain that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Industrial disability or loss of earning capacity is a 
 
         concept that is quite similar to impairment of earning capacity, 
 
         an element of damage in a tort case.  Impairment of physical 
 
         capacity creates an inference of lessened earning capacity.  The 
 
         basis element to be determined, however, is the reduction in 
 
         value of the general earning capacity of the person, rather than 
 
         the loss of wages or earnings in a specific occupation.  
 
         Post-injury earnings create a presumption of earning capacity.  
 
         The earnings are not synonymous with earning capacity and the 
 
         presumption may be rebutted by evidence showing the earnings to 
 
         be an unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
         (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
         516 (Iowa App. 1977).A.L.R.3d 143; Michael v. Harrison County, 
 
         34th Biennial Report, 218 (1979); 2 Larson Workmen's Compensation 
 
         Law, sections 57.21 and 57.31.
 
         
 
              Claimant's hourly rate of pay while performing ironwork in 
 
         1986 is not necessarily an accurate indicator of his earning 
 
         capacity at that time.  He was apparently working contrary to the 
 
         recommendations of his physicians.  When such is done, any 
 
         particular level of earnings is not necessarily representative of 
 
         earning capacity.  Further, the nature of ironwork is such that, 
 
         on an annual basis, the worker may be employed for only a 
 
         fraction of the year.  Overall earning capacity must be viewed on 
 
         a long-term basis, not simply upon the hourly rate of pay at a 
 
         particular place and time.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant's credibility has been sufficiently impaired to 
 
         render his testimony regarding the level of his current 
 
         complaints and their onset as unreliable.  Claimant has likewise 
 
         failed to prove by a preponderance of the evidence that there has 
 
         been any substantial change in the overall condition of his 
 
         lumbar spine since 1982, other than a temporary aggravation which 
 
         resulted from the November 7, 1986 fall.  It is therefore 
 
         determined that claimant did injure his back when he fell on 
 
         November 7, 1986, but that the injury was only a temporary 
 
         aggravation of a preexisting condition.  Claimant is therefore 
 
         entitled to recover compensation for temporary total disability 
 
         for the period running November 7, 1986 through September 30, 
 
         1987. 1
 
         
 
              The rate of compensation was not an issue identified on the 
 
         hearing assignment order.  It was raised as an issue at the time 
 
         of hearing by defendants.  Claimant's testimony regarding the 
 
         somewhat, though not exclusively, seasonal nature of ironwork is 
 
         consistent with the construction trade in general and is accepted 
 
         as being correct, despite the impeachment of claimant's 
 
         credibility.  The record does not show claimant to have been a 
 
         part-time worker.  His rate of compensation should therefore be 
 
         determined under the provisions of Iowa Code section 85.36(6). 
 
         Claimant's 13-week earning record was not introduced into 
 
         evidence and the rate of compensation therefore cannot be 
 
         determined in this decision.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  On November 7, 1986, John Sullivan was a resident of the 
 
         state of Iowa employed by Diversified Industrial Services at 
 
         Waterloo, Iowa.
 
         
 
              2.  On November 7, 1986, Sullivan fell from a scaffold, onto 
 
         a truss, injuring his elbow, kidney and back.
 
         
 
              3.  Following the injury, Sullivan was medically incapable 
 
         of performing work in employment substantially similar to that he 
 
         performed at the time of injury from November 7, 1986 until 
 
         September 30, 1987 when it was medically indicated that further 
 
         significant improvement from the injury was not anticipated and 
 
         claimant became medically as capable of resuming employment 
 
         substantially similar to that in which he was engaged at the time 
 
         of injury as he had been at the time of injury.
 
         
 
              4.  Claimant failed to introduce sufficient evidence showing 
 
         it to be probable that any of the injuries he sustained on 
 
         November 7, 1986 produced any permanent impairment or permanent 
 
         reduction of his ability to engage in gainful employment.
 
         
 
              5.  Claimant's credibility was effectively impeached by 
 
         inconsistent statements.
 
         
 
              6.  Claimant had a preexisting congenital condition in his 
 
         back.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              7.  The injury to claimant's back which occurred on November 
 
         7, 1986 was a temporary aggravation of that preexisting 
 
         condition.
 
         
 
              8.  Claimant's testimony regarding,his symptoms, their onset 
 
         and their severity is not reliable.
 
         
 
              9.  Claimant has failed to introduce evidence showing it to 
 
         be more likely than not that his overall earning capacity was 
 
         impaired in any manner as a result of the injuries which he 
 
         sustained on November 7, 1986.
 
         
 
              10.  Ironwork in Iowa is an occupation which is primarily, 
 
         though not exclusively, seasonal.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
              
 
              2.  Claimant is entitled to recover 46 2/7 weeks of 
 
         compensation for temporary total disability payable commencing 
 
         November 7, 1986.
 
         
 
              3.  Claimant has failed to prove by a preponderance of the 
 
         evidence that any of the injuries he sustained on November 7, 
 
         1986 produced any permanent impairment or any permanent reduction 
 
         of his earning capacity.
 
         
 
              4.  Claimant's rate of compensation should be computed under 
 
         Iowa Code section 85.36(6) as the occupation of an ironworker is 
 
         not exclusively seasonal and the record failed to show that 
 
         claimant earned less wages than the usual weekly earnings of a 
 
         regular full-time adult laborer in the ironworker occupation.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant 
 
         forty-six and two-sevenths (46 2/7) weeks of compensation for 
 
         temporary total disability commencing November 7, 1986.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         action pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file claim activity 
 
         reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 16th day of January, 1990.
 
         
 
         
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Thomas M. Wertz
 
         Attorney at Law
 
         4089 21st Avenue SW
 
         Suite 114
 
         Cedar Rapids, Iowa  52404
 
         
 
         Mr. John M. Bickel
 
         Attorney at Law
 
         500 MNB Building
 
         P.O. Box 2107
 
         Cedar Rapids, Iowa  52406-2107
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            51402.20, 51402.30,
 
                                            51402.40, 1803, 52206
 
                                            3700
 
                                            Filed January 16, 1990
 
                                            MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOHN SULLIVAN,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                      File No. 841627
 
         DIVERSIFIED INDUSTRIAL
 
         SERVICES,                                 A R B I T R A T I 0 N
 
         
 
              Employer,                               D E C I S I 0 N
 
         
 
         and
 
         
 
         CIGNA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         51402.20, 51402.30, 51402.40
 
         
 
              Though claimant's testimony was impaired, there was 
 
         sufficient corroboration from other evidence in the record to 
 
         establish that he was injured in the manner he described, that 
 
         the injury extended to his back, and that he was entitled to 
 
         temporary total disability during a period of recuperation.  The 
 
         evidence was not sufficient, however, to establish any permanent 
 
         disability from the injury.
 
         
 
         1803
 
         
 
              In assessing industrial disability, the hourly rate of 
 
         earnings at the time of injury does not necessarily establish the 
 
         earning capacity which had existed prior to the injury.  Other 
 
         factors to be considered include the employee's long-term earning 
 
         history, any seasonal fluctuations in the availability of work 
 
         and whether the work was being performed in violation of 
 
         previously imposed activity restrictions.
 
         
 
         52206
 
         
 
              Where the evidence showed claimant to have had a preexisting 
 
         back condition, a fall of the type which he described was found 
 
         to be sufficient to have aggravated that preexisting condition.
 
         
 
         3700
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant's credibility was effectively impeached by his 
 
         failure to disclose a prior injury and preexisting condition in 
 
         his discovery responses.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
        
 
 
 
 
 
        
 
                      BEFORE THE IOWA INDUSTRIAL SERVICES
 
        
 
        
 
        PAM ATTERBERG,                            File No. 841741
 
        
 
            Claimant,                              A P P E A L
 
        
 
        vs.                                       D E C I S I O N
 
        
 
        SHELLER-GLOBE CORPORATION,
 
                                                     F I L E D
 
            Employer,
 
            Self-Insured,                          JUL 31 1989
 
            Defendant.
 
                                             IOWA INDUSTRIAL 
 
        COMMISSIONER
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
             Defendant appeals from an arbitration decision awarding 
 
             permanent partial disability benefits as the result of an alleged 
 
             injury on February 19, 1986. The record on appeal consists of 
 
             the transcript of the arbitration hearing; claimant's exhibits 1 
 
             through 18; and defendant's exhibits A through D. Both parties 
 
             filed briefs on appeal.
 
        
 
                                      ISSUES
 
        
 
             Defendant states the following issues on appeal:
 
        
 
                  1. Did the deputy err in finding that the claimant 
 
                      sustained an injury on February 19, 1986 which arose out of 
 
                      and in the course of her employment at [sic] Sheller-Globe?
 
             
 
                 2. Did the deputy err in finding a causal relationship 
 
             between the alleged injury and the claimant's disability?
 
             
 
                 3. Did the deputy err in awarding 75% industrial 
 
             disability?
 
             
 
                                 REVIEW OF THE EVIDENCE
 
        
 
             The arbitration decision adequately and accurately reflects 
 
             the pertinent evidence and it will not be set forth herein.
 
        
 
                                 APPLICABLE LAW
 
        
 
             The citations of law in the arbitration decision are 
 
             appropriate to the issues and the evidence.
 
             
 
                                      ANALYSIS
 
        
 
             Defendant argues on appeal that claimant has failed to 
 
             establish that her work injury of February 19, 1986, arose out of 
 
             and was in the course of her employment. Claimant had a 
 
             congenital back condition and a back injury unrelated to her work 
 
             prior to February 19, 1986. Claimant had also undergone back 
 
             surgery prior to February 19, 1986. Claimant asserted that when 
 
             she returned to work, she was required to perform duties normally 
 
             performed by two persons, and that the additional strain resulted 
 
             in an aggravation of her previous condition. However, the 
 

 
        
 
 
 
 
 
             testimony of Andy Edgar indicates that claimant's job duties were 
 
             not normally performed by two people.
 
        
 
            The medical evidence of James B. Worrell, M.D., indicates 
 
        that claimant's work injury of February 19, 1986, did aggravate 
 
        her prior back condition. Although defendant argues that Dr. 
 
        Worrell did not state that the aggravation was permanent in 
 
        nature, Dr. Worrell did assign claimant a rating of permanent 
 
        partial impairment of 5-8 percent of the body as a whole. 
 
        William R. Pontarelli, M.D., attributed claimant's present 
 
        condition to a "new problem" received "after working." 
 
        Defendant's argument that "after working" does not mean as a 
 
        result of her work activity is rejected as unreasonable. Taking 
 
        Dr. Pontarelli's testimony as a whole, his use of the phrase 
 
        "after working" clearly refers to the fact that claimant's pain 
 
        was the result of her work activity, and not merely a reference 
 
        to the time of day the pain began. Claimant testified that she 
 
        experienced sudden onset of back pain while at work. Claimant's 
 
        back pain after February 19, 1986, was described by claimant as 
 
        originating in an area of the back differing from the location of 
 
        her previous laminectomy. Claimant's description of her condition 
 
        before and after the February 19, 1986 incident was corroborated 
 
        by the testimony of her son and her sister. Claimant met her 
 
        burden in proving her aggravation of her back condition arose out 
 
        of and was in the course of her employment.
 
        
 
            Defendant also asserts that claimant has failed to show that 
 
        her present condition is causally related to her work injury. 
 
        Peter D. Wirtz, M.D., and Keith Riggins, M.D., expressed no 
 
        opinion on causation. Gary M. Crank, D.C., attributed claimant's 
 
        condition to her prior surgery, but conceded that claimant's work 
 
        activity would have an effect on claimant's symptoms. Dr. 
 
        Worrell testified that claimant's condition was caused by an 
 
        aggravation of her previous condition by her work activity. 
 
        Taken as a whole, the medical testimony establishes a causal 
 
        connection between claimant's present condition and her work 
 
        injury of February 19, 1986. The medical testimony is 
 
        corroborated by claimant's description of her condition before 
 
        and after the work injury, and claimant's testimony in this 
 
        regard is corroborated by the testimony of her son and her 
 
        sister.
 
        
 
            Defendant also challenges the deputy's finding that claimant 
 
        was 75 percent industrially disabled. Claimant has a rating of 
 
        permanent partial impairment of 5-8 percent of the body as a 
 
        whole. Defendant refused to rehire claimant, and cited as a 
 
        reason claimant's medical restrictions and seniority rules. 
 
        Claimant states she cannot lift more than 15-25 pounds. Dr. 
 
        Crank noted test results that confirmed a loss of lifting 
 
        ability. Claimant has experienced a substantial loss of earnings, 
 
        in that her prior wages were $10.36 per hour and claimant now 
 
        earns $3.50 per hour. Claimant was 29 years old at the time of 
 
        the hearing, and had recently obtained a GED. Claimant's age 
 
        makes retraining possible. Claimant's prior work experience is 
 
        limited to factory work and waitress work. The vocational 
 
        rehabilitation nurse testified that claimant was employable in 
 
        grocery, restaurant or factory work. Claimant is currently 
 
        employed at a gas station. Claimant is well motivated. Based on 
 
        these and all other appropriate factors for determining 
 
        industrial disability, claimant is determined to have an 
 
        industrial disability of 45 percent.
 
        
 
             Defendant next raises as an issue apportionment for 
 
             claimant's prior disability. While it is true that claimant had 
 
             a good recovery from her earlier surgery, and was able to perform 
 
             various household tasks, claimant nevertheless had a prior 
 

 
        
 
 
 
 
 
             laminectomy. This is an intrusive surgery which necessarily 
 
             causes some degree of impairment. Claimant did not have any 
 
             lifting restrictions or ratings of permanent partial impairment 
 
             prior to her February 19, 1986 injury. The greater weight of the 
 
             evidence indicates that claimant had a five percent disability 
 
             prior to her February 19, 1986 work injury.
 
        
 
                                 FINDINGS OF FACT
 
        
 
             1. Claimant was 29 years old at the time of the hearing.
 
        
 
            2. Claimant obtained an eighth grade education and then 
 
        subsequently obtained a GED.
 
        
 
            3. Claimant has a congenital back condition.
 
        
 
            4. Claimant injured her back at home in 1985.
 
        
 
            5. Claimant underwent a laminectomy as a result of her 1985 
 
        back injury at home.
 
        
 
            6. Claimant was off work from February 7, 1985 through 
 
        January 28, 1986 because of her back injury at home in 1985.
 
        
 
            7. Claimant's 1985 surgery was a success and as a result 
 
        she was able to do her job when she returned to Sheller-Globe 
 
        Corporation on January 29, 1986.
 
        
 
            8. Claimant materially aggravated a preexisting back 
 
        condition on February 19, 1986, while working for Sheller-Globe 
 
        with resulting whole body impairment.
 
        
 
             9. Claimant's current whole body impairment is attributable 
 
             in part to l) her congenital back condition; 2) her 1985 back 
 
             injury at home; and 3) her 1986 work-related injury.
 
        
 
            10. Sheller-Globe currently refuses to allow claimant to do 
 
        a full-time job at its Keokuk plant because of fear of further 
 
        injury to claimant.
 
        
 
            11. Claimant's industrial disability is 45 percent.
 
        
 
            12. Claimant had an industrial disability of five percent 
 
        prior to her February 19, 1986 injury.
 
        
 
            13. Claimant's stipulated weekly rate of compensation is 
 
        $245.36.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
             Claimant has established by a preponderance of the evidence 
 
             that she materially aggravated her preexisting back condition on 
 
             February 19, 1986, while working for Sheller-Globe.
 
        
 
            Claimant has established by a preponderance of the evidence 
 
        that there is a causal connection between her work-related injury 
 
        of February 19, 1986, and some of her whole body impairment.
 
        
 
            Claimant has established by a preponderance of the evidence 
 
        that she is entitled to healing period benefits from February 19, 
 
        1986 through June 15, 1986.
 
        
 
            Claimant has established by a preponderance of the evidence 
 
        that she is entitled to 200 weeks of permanent partial disability 
 
        benefits commencing on June 16, 1986, at a rate of $245.36.
 
        
 

 
        
 
 
 
 
 
            WHEREFORE, the decision of the deputy is affirmed and 
 
        modified.
 
                                     ORDER
 
        
 
             THEREFORE, it is ordered:
 
        
 
            That defendant pay healing period benefits from February 19, 
 
        1986 through June 15, 1986 at a weekly rate of two hundred 
 
        forty-five and 36/100 dollars ($245.36).
 
        
 
            That defendant pay claimant two hundred (200) weeks of 
 
        permanent partial disability benefits commencing on June 16, 1986 
 
        at a weekly rate of two hundred forty-five and 36/100 ($245.36).
 
        
 
            That defendant pay accrued benefits in a lump sum and pay 
 
        interest pursuant to section 85.30, The Code.
 
        
 
        
 
             That defendant be given credit for benefits already paid to 
 
             claimant.
 
             
 
             That defendant pay the costs of this action pursuant to 
 
             Division of Industrial Services Rule 343-4.33.
 
             
 
             That defendant shall file claim activity reports, pursuant 
 
             to Division of Industrial Services rule 343-3.1(2), as requested 
 
             by the agency.
 
             
 
             Signed and filed this 31st day of July, 1989.
 
             
 
        
 
                                                DAVID E. LINQUIST
 
                                             INDUSTRIAL COMMISSIONER
 
        
 
        Copies To:
 
        
 
        Mr. James P. Hoffman
 
        Attorney at Law
 
        P.O. Box 1066
 
        Middle Road
 
        Keokuk, Iowa 52632-1066
 
        
 
        Mr. Harry W. Dahl
 
        Attorney at Law
 
        974 73rd St., Suite 16
 
        Des Moines, Iowa 50312
 
        
 
        
 
 
        
 
 
 
 
 
        
 
                                          1100,1108,51803
 
                                          1702,1806
 
                                          Filed July 31, 1989
 
                                          DAVID E. LINQUIST
 
        
 
                      BEFORE THE IOWA INDUSTRIAL SERVICES
 
        
 
        
 
        PAM ATTERBERG,
 
        
 
            Claimant,                            File No. 841741
 
        
 
        vs.                                         A P P E A L
 
        
 
        SHELLER-GLOBE CORPORATION,                D E C I S I O N
 
        
 
            Employer,
 
            Self-Insured,
 
            Defendant.
 
        
 
        
 
        1100, 1108
 
        
 
             Claimant had a prior congenital back condition, prior back 
 
             surgery, and a non-work related back injury. Claimant then 
 
             injured her back at work. Medical testimony that claimant's 
 
             present condition was an aggravation of her prior condition 
 
             combined with claimant's testimony and that of her son and sister 
 
             relied on to find that claimant's injury arose out of and in the 
 
             course of her employment, and that her present condition was 
 
             causally connected to her work injury.
 
        
 
        
 
        51803
 
        
 
             Claimant with a permanent partial impairment of 5-8 percent 
 
             of the body as a whole, 29 years old, GED, work experience 
 
             limited to factory work, and an inability to lift more than 15-20 
 
             pounds given an award of 45 percent industrial disability. 
 
             Claimant had also lost wages and defendant declined to rehire 
 
             her.
 
        
 
        
 
        1702,1806
 
        
 
             Claimant's prior back conditions, although not directly 
 
             affecting her work, did include a prior laminectomy, an intrusive 
 
             surgery necessarily involving some impairment. Claimant found to 
 
             have had a prior 5 percent industrial disability, which was 
 
             apportioned out of the award.