Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LAURA CARROLL,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 841922
 
            HALLMARK CARE CENTER,         :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            ALLIED INSURANCE GROUP,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Laura 
 
            Carroll, claimant, against Hallmark Care Center, employer 
 
            (hereinafter referred to as Hallmark), and Allied Insurance 
 
            Group, insurance carrier, defendants, for workers' compensa
 
            tion benefits as a result of an alleged injury on December 
 
            22, 1986.  On August 7, 1990, a hearing was held on 
 
            claimant's petition and the matter was considered fully sub
 
            mitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The testimony and written exhibits received during 
 
            the hearing are set forth in the hearing transcript.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  On December 22, 1986, claimant received an injury 
 
            which arose out of and in the course of her employment with 
 
            Hallmark.
 
            
 
                 2.  Claimant is seeking temporary total disability or 
 
            healing period benefits in this proceeding and has not 
 
            worked since the injury.
 
            
 
                 3.  Claimant's rate of weekly compensation in the event 
 
            of an award of weekly benefits shall be $97.35.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                   I.  The extent of claimant's entitlement to disabil
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            ity benefits; and,
 
            
 
                  II.  The extent of claimant's entitlement to medical 
 
            benefits.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the evi
 
            dence, the deputy industrial commissioner finds as follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants place claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the injury 
 
            and disability.  From her demeanor while testifying, 
 
            claimant is found credible.
 
            
 
                 Claimant worked for Hallmark for approximately seven 
 
            years prior to her injury herein.  The injury consisted of a 
 
            fall on her right wrist.  The diagnosis, as described in the 
 
            x-ray reports, is a comminuted fracture of the distal radius 
 
            bone.  It was noted in the initial x-ray of the wrist and 
 
            hand that advanced degenerative changes were present at the 
 
            base of the thumb.
 
            
 
                 As a result of the injury, claimant was totally dis
 
            abled from work from December 22, 1986 through August 18, 
 
            1987.  Claimant has not returned to work.  Claimant was 
 
            treated by J. L. Wiedemeier, M.D., with medication and a 
 
            cast.  Claimant was released from Dr. Wiedemeier's care on 
 
            August 18, 1987.  At that time Dr. Wiedemeier felt that 
 
            claimant should not have "permanent disability."
 
            
 
                 However, claimant continued to have problems with her 
 
            wrist and arm up to her elbow.  A friend of her son sug
 
            gested that she see a chiropractor, Gary Tapper, D.C.  She 
 
            did so beginning in February 1988 and Dr. Tapper treated 
 
            claimant for over one year with ultrasound therapy to reduce 
 
            the swelling and relieve the pain.  Claimant stated that she 
 
            did receive some relief from this treatment.  In September 
 
            1989, claimant was referred by Dr. Tapper to Cecil 
 
            Cunningham, D.O.  Dr. Cunningham ultimately diagnosed 
 
            claimant's condition in February 1990 as "old compression 
 
            fracture superimposed upon...traumatic arthritis."  He found 
 
            claimant's right wrist to be almost totally restricted in 
 
            movement with extremely weak grip strength and constant 
 
            wrist pain.
 
            
 
                 At hearing, claimant complained that her wrist is con
 
            tinuing to deteriorate.  She stated that originally the mid
 
            dle and ring fingers were "dead" but now the little and 
 
            index fingers are also "dead."  She demonstrated her fingers 
 
            are now involuntarily curling up when she outstretches her 
 
            hand.  She was observed by the undersigned to have a very 
 
            limited range of motion of her wrist and fingers.
 
            
 
                 Claimant was evaluated by an orthopedic surgeon, John 
 
            J. Dougherty, M.D., in November 1987, and found to have a 
 
            20-25 percent permanent partial impairment, apparently 
 
            rejecting Dr. Wiedemeier's prognosis.  The rating was subse
 
            quently changed by Dr. Dougherty on two occasions.  In 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            November 1988, he stated that claimant was improving and at 
 
            that time had only a 17 percent permanent partial impair
 
            ment.  In February 1990, after another examination, Dr. 
 
            Dougherty found that claimant had only a 10 percent perma
 
            nent partial impairment as a result of the fractured wrist.  
 
            He felt that claimant's other problems were due to degenera
 
            tive changes due to old age which would have occurred 
 
            regardless of the fractured wrist.
 
            
 
                 In December 1988, Dr. Tapper opined, using the AMA 
 
            guidelines, that claimant had sustained a 76 percent perma
 
            nent partial impairment to the upper extremity.  A specific 
 
            causal connection opinion was not given but it was clear 
 
            from the wording of Dr. Tapper's report that he felt that 
 
            the impairment was due to the fall of December 22, 1986.  
 
            Dr. Cunningham rated claimant as suffering from an 80 per
 
            cent permanent partial impairment to the upper extremity.  
 
            Dr. Cunningham did not state what guidelines, if any, he 
 
            used in this evaluation.  Again, Dr. Cunningham did not pro
 
            vide a specific causal connection opinion but from his diag
 
            nosis of traumatic arthritis, it is clear to the undersigned 
 
            that he felt that the degenerative changes noted by Dr. 
 
            Dougherty were, in his opinion, caused by the fracture and 
 
            not independent of the fracture.
 
            
 
                 It is found that the work injury of December 22, 1986, 
 
            was a cause of the larger functional impairment as rated by 
 
            Dr. Tapper.  Everyone appears to reject the views of Dr. 
 
            Wiedemeier as it was only an optimistic prognosis which 
 
            later proved to be incorrect.  Admittedly, the undersigned 
 
            would usually give greater weight to the views of the ortho
 
            pedic specialist, Dr. Dougherty, when determining issues 
 
            when in the field of orthopedics.  However, Dr. Dougherty's 
 
            reports are not convincing in two respects.  First, he found 
 
            that claimant's range of motion was improving at a time when 
 
            two other medical practitioners found that the range of 
 
            motion had decreased quite significantly.  This was also 
 
            contrary to claimant's credible testimony and to the under
 
            signed's observations at hearing.  Second, Dr. Dougherty's 
 
            causal connection views appear to be affected by his view of 
 
            claimant's credibility.  His last report contained the fol
 
            lowing statement:  "[S]he is difficult to evaluate.  I 
 
            really don't think she is having that much trouble....She 
 
            certainly has problems with her fingers and elbow because 
 
            she is old....She is hard to examine, because I don't think 
 
            she really tries...."
 
            
 
                 It appears to the undersigned from such statements that 
 
            Dr. Dougherty felt claimant was at least partly a malingerer 
 
            and was attempting to somehow profit from the physical prob
 
            lems caused by her old age.  This is simply not the case for 
 
            Laura Carroll.  Prior to the injury, claimant was unusually 
 
            active and healthy for her age.  Claimant began working for 
 
            defendant performing manual labor when she was in her late 
 
            seventies, at a time when many elderly persons enter nursing 
 
            homes, not begin new employment.  According to the credible 
 
            testimony of claimant and her daughter, claimant would be 
 
            working today but for the injury.  Claimant had no old age 
 
            problems with her right wrist until December 22, 1986.  To 
 
            suggest otherwise is contrary to the facts.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 On the other hand, the views of Drs. Tapper and 
 
            Cunningham are consistent with the credible testimony 
 
            offered by claimant and a witness.  Dr. Cunningham clearly 
 
            diagnosed traumatic arthritis as a cause of her continuing 
 
            wrist problems.  According to the original x-rays after the 
 
            injury, claimant had degenerative changes only in the thumb, 
 
            not the other fingers or bones of the wrist.  The criticism 
 
            of Dr. Cunningham by defense counsel in the doctor's label
 
            ing of claimant's fracture as a compression fracture rather 
 
            than a comminuted fracture is not convincing.  It is clear 
 
            from Dr. Cunningham's records that he knew, full well, which 
 
            bone on the wrist had been fractured and how it had been 
 
            fractured.  The undersigned chose Dr. Tapper's rating over 
 
            that of Dr. Cunningham because Dr. Tapper testified that he 
 
            used the AMA Guides.
 
            
 
                 According to the prehearing report, claimant is 
 
            requesting the payment of the medical expenses set forth in 
 
            exhibits 14 and 15 which comprise charges for the treatment 
 
            of Drs. Tapper and Cunningham.  In light of the above, these 
 
            expenses are found causally connected to the injury.  These 
 
            expenses have been paid by Medicare and they are found rea
 
            sonable.  The undersigned has had six years experience in 
 
            the review of medical charges for chiropractic care and care 
 
            by family practice physicians.
 
            
 
                                conclusions of law
 
            
 
                   I.  Claimant must establish by a preponderance of the 
 
            evidence the extent of weekly benefits for permanent dis
 
            ability to which claimant is entitled.  Permanent partial 
 
            disabilities are classified as either scheduled or unsched
 
            uled.  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 com
 
            pensation payable is limited to that set forth in the appro
 
            priate 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).
 
            
 
                 In the case sub judice, it is found that claimant suf
 
            fered a six percent permanent partial impairment or loss of 
 
            use to her arm.  Based upon such a finding, claimant is 
 
            entitled as a matter of law to 190 weeks of permanent par
 
            tial disability benefits under Iowa Code section 85.34(2)(m) 
 
            which is 76 percent of 250 weeks, the maximum allowable for 
 
            an injury to the arm in that subsection.
 
            
 
                 As claimant has established entitlement to permanent 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            partial disability, claimant is entitled to weekly benefits 
 
            for healing period under Iowa Code section 85.34(l) from the 
 
            date of injury until she returns to work; until she is medi
 
            cally capable of returning to substantially similar work 
 
            that she was performing at the time of injury; or, until it 
 
            is indicated that significant improvement from the injury is 
 
            not anticipated, whichever occurs first.  Claimant was 
 
            released from the care of Dr. Wiedemeier on August 18, 1987.  
 
            Claimant's care since that time by Dr. Tapper and Dr. 
 
            Cunningham appear maintenance in nature.  Claimant will be 
 
            awarded healing period from the date of injury until the 
 
            release from the care of Dr. Wiedemeier.
 
            
 
                  II.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of a work injury.  In the case at bar, defen
 
            dants claim that the treatment by Drs. Tapper and Cunningham 
 
            were not authorized and claimant is not entitled to reim
 
            bursement for such expenses under Iowa Code section 85.27 
 
            which provides employers with the right to chose care.  
 
            However, section 85.27 applies only to injuries compensable 
 
            under Chapters 85 and 85A and B of the Code and obligates 
 
            the employers to furnish reasonable medical care.  This 
 
            agency has held that it is inconsistent to deny liability 
 
            and the obligation to furnish care on one hand and at the 
 
            same time claim a right to chose the care.  Kindhart v. Fort 
 
            Des Moines Hotel, I Iowa Industrial Commissioner Decision 
 
            No. 3, 611 (Appeal Decision 1985); Barnhart v. MAQ, Inc., I 
 
            Iowa Industrial Commissioner Report 16 (Appeal Decision 
 
            1981).  Defendants in this proceeding have denied the causal 
 
            connection of claimant's continuing problems that were 
 
            treated by Drs. Tapper and Cunningham to the work injury.  
 
            They claim that this is degenerative arthritis caused by old 
 
            age.  Therefore, defendants had no right to chose the care.
 
            
 
                 The care by Drs. Tapper and Cunningham appear more 
 
            treatment oriented than evaluation oriented and the expenses 
 
            will be awarded in full under Iowa Code section 85.27.  
 
            According to the prehearing report, claimant is not seeking 
 
            reimbursement for the $75 charge of Dr. Tapper for making a 
 
            permanency evaluation.  As the expenses were paid, utilizing 
 
            agency expertise, they are found reasonable.  See Lawson v. 
 
            Fordyce, 237 Iowa 28, 50-51 and cases cited therein.
 
            
 
                 Claimant also seeks an order regarding future treat
 
            ment.  Such an order will be given but not for continued 
 
            care by Drs. Tapper and Cunningham which has only had 
 
            limited success.  It is time for another orthopedic surgeon, 
 
            one not associated with Dr. Dougherty, to evaluate claimant 
 
            and make recommendations as to further treatment.  The 
 
            choice of such other orthopedic surgeon will be left to 
 
            defendants at this time.  They will be ordered to provide 
 
            whatever treatment that is then recommended.
 
            
 
                                      order
 
            
 
                 1.  Defendants shall pay to claimant one hundred ninety 
 
            (190) weeks of permanent partial disability benefits at the 
 
            rate of ninety-seven and 35/l00 dollars ($97.35) per week 
 
            from August 19, 1987.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 2.  Defendants shall pay to claimant healing period 
 
            benefits from December 22, 1986 through August 18, 1987 at 
 
            the rate of ninety-seven and 35/l00 ($97.35) per week.
 
            
 
                 3.  Defendants shall pay the medical expenses set forth 
 
            in exhibits 14 and 15 as set forth in the prehearing report.  
 
            The claimant shall be reimburse for any of those expenses 
 
            paid by her.  Otherwise, defendants shall reimburse Medicare 
 
            for these expenses.
 
            
 
                 4.  Defendants are ordered to provide future medical 
 
            treatment of claimant's wrist and lower arm problems.  
 
            Specifically, defendants shall provide an evaluation by an 
 
            orthopedic surgeon, not connected with or associated with 
 
            Dr. Dougherty, and shall provide whatever treatment that is 
 
            subsequently recommended.
 
            
 
                 5.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for 
 
            benefits previously paid.
 
            
 
                 6.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 7.  Defendants shall pay the costs of this action pur
 
            suant to Division of Industrial Services Rule 343-4.33, 
 
            including reimbursement to claimant for any filing fees paid 
 
            in this matter.
 
            
 
                 8.  Defendants shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            Division of Industrial Services Rule 343-3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of November, 1990.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. J. Allen Orr
 
            Attorney at Law
 
            803 Frances Bldg
 
            Sioux City  IA  51101
 
            
 
            Ms. Judith Ann Higgs
 
            Attorney at Law
 
            701 Pierce St  STE 200
 
            P O Box 3086
 
            Sioux City  IA  51102
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803
 
                           Filed November 19, 1990
 
                           LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LAURA CARROLL,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 841922
 
            HALLMARK CARE CENTER,         :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            ALLIED INSURANCE GROUP,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-1803
 
            Extent of disability.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LAURA CARROLL,
 
                                                    File No. 841922
 
              Claimant,
 
                                                        N U N C
 
         vs.
 
                                                         P R 0
 
         HALLMARK CARE CENTER,
 
                                                        T U N C
 
              Employer,
 
                                                       0 R D E R
 
         and
 
                                                      F I L E D
 
         ALLIED INSURANCE GROUP,
 
                                                      DEC 05 1990
 
         
 
              Insurance Carrier,             IOWA INDUSTRIAL COMMISSIONER
 
              Defendants.
 
         
 
         
 
              The first sentence of the first full unnumbered paragraph on 
 
         page 5 of the arbitration decision filed November 19, 1990, is 
 
         amended to read as follows:
 
         
 
              ...it was found that the claimant suffered a 76 percent 
 
              permanent partial impairment or loss of use to her arm.
 
         
 
              This is a typographical error only.  The balance of the 
 
         decision and award remains unchanged.
 
         
 
         
 
              Signed and filed this 5th day of December, 1990.
 
         
 
         
 
         
 
         
 
         
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. J. Allen Orr
 
         Attorney at Law
 
         803 Frances Bldg
 
         Sioux City, IA  51101
 
         
 
         Ms. Judith Ann Higgs
 
         Attorney at Law
 
         701 Pierce St  STE 200
 
         P 0 Box 3086
 
         Sioux City, IA  51102
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KEVIN HACKNEY,
 
         
 
              Claimant,
 
         
 
         VS.                                  File  Nos.  842000
 
                                                         842493 
 
         MARVIN TESKE,
 
                                         A R B I T R A T I 0 N 
 
              Employer,
 
                                            D E C I S I 0 N 
 
         and
 
         
 
         FARM BUREAU MUTUAL INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This decision concerns two proceedings in arbitration 
 
         brought by Kevin Hackney against Marvin Teske, his former 
 
         employer, and Farm Bureau Mutual Insurance Company, the 
 
         employer's insurance carrier.  The case was heard and fully 
 
         submitted at Des Moines, Iowa on July 27, 1989.  The record in 
 
         the proceeding consists of joint exhibits 1 and 2, claimant's 
 
         exhibit A, and testimony from Kevin Hackney and Peggy Hackney.
 
         
 
                                      ISSUES
 
         
 
              The employer stipulated that claimant sustained injuries on 
 
         December 5, 1986 and December 24,, 1986 which arose out of and in 
 
         the course of his employment.  It was stipulated that with regard 
 
         to the injury to claimant's back, his entitlement to compensation 
 
         for temporary total disability or healing period runs from 
 
         December 24, 1986 through June 24, 1987.  A dispute exists with 
 
         regard to.whether either of the injuries produced any 
 
         psychological injury and any resulting psychological disability.  
 
         It was stipulated that the rate of compensation for the December 
 
         5, 1986 injury is $164.71 per week and that for the December 24, 
 
         1986 injury it is $156.03 per week.  Claimant also seeks to 
 
         recover expenses under Iowa Code section 85.27.
 
         Defendants have paid 91 2/7 weeks of weekly compensation at the 
 
         rate of $156.03 per week.
 
         
 
         
 
         
 
         HACKNEY v. MARVIN TESKE
 
         Page 2
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                               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.
 
         
 
              Kevin Hackney is a 30-year-old married man who is a 1977 
 
         graduate of Eldora High School.  He attended Ellsworth Community 
 
         College briefly, but dropped out after approximately nine weeks.  
 
         He attended Kirkwood Community College and obtained a one-year 
 
         degree in production agriculture.
 
         
 
              Hackney grew up in a farming family and has worked in 
 
         agriculture throughout his life.  While in high school, he was in 
 
         a work study program in a swine farrowing operation. .Hackney 
 
         showed cattle while he was in high school and had built up a 
 
         small herd of Simmental cows.  He has been employed showing 
 
         cattle and as a cow-calf operation herdsman.  Hackney operated a 
 
         chicken production business for approximately two years.  He has 
 
         worked at a farm supply and equipment store as a clerk.
 
         
 
              Hackney commenced employment with Marvin Teske in August of 
 
         1985.  His main job was operation of a beef feedlot with 
 
         approximately 300-700 head of cattle.  He also performed other 
 
         farm work as needed by the employer including driving trucks and 
 
         tractors and baling hay.
 
         
 
              Kevin Hackney has a history of back trouble.  He has 
 
         obtained chiropractic treatments since high school.  He injured 
 
         his back and was hospitalized for approximately one week in 1981 
 
         as a result of lifting a sow.  Hackney stated that he recovered 
 
         from that injury. claimant again injured his back in 1983 when a 
 
         show bull fell, knocked him down, and landed with its knee on his 
 
         back.  Claimant stated that he was not hospitalized for that 
 
         incident and recovered.
 
         
 
              Hackney was injured on December 5, 1986.  He stated that he 
 
         was scooping protein into a loader when he experienced a sharp 
 
         pain in his back and fell to his knees.  Hackney reported the 
 
         event to his employer and obtained treatment from Ronald C. 
 
         Neuerburg, D.C. He was taken off work for approximately two 
 
         weeks, but was maintained in a pay status while off.  He then 
 
         returned to work in a light-duty status, but reinjured his back 
 
         on December 24, 1986
 
         
 
         
 
         
 
         HACKNEY v. MARVIN TESKE
 
         Page 3
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         when he bent over to pick up a pill which was being administered 
 
         to livestock.
 
         
 
              Claimant continued treating with Dr. Neuerburg throughout 
 
         the remainder of the month of December, but was referred to Raul 
 
         Ruiz, M.D. Claimant was in turn then referred to Allen G. Lang, 
 
         M.D., an Ames, Iowa orthopaedic surgeon.  Dr. Lang has continued 
 
         to be claimant's primary treating orthopaedic surgeon.
 
         
 
              On March 30, 1987, Dr. Lang reported that claimant had 
 
         experienced a thoracolumbar strain which was superimposed on 
 
         degenerative disc disease.  He recommended that claimant obtain 
 
         retraining in order to obtain a different type of job rather than 
 
         resume work as a farmhand (exhibit D, page 40).  On July 3, 1987, 
 
         Dr. Lang reported that claimant could not return to his previous 
 
         work or similar work and provided a permanent impairment rating 
 
         of 18 percent (exhibit D, page 42).  On July 29, 1988, Dr. Lang 
 
         explained that of the 18 percent impairment rating, 7 percent was 
 
         due to the recent injury and that the balance had been 
 
         preexisting.  Dr. Lang also expressed the opinion that claimant's 
 
         headaches were not directly related to his back, but that they 
 
         appeared to be vascular headaches which can be brought on by 
 
         stress from many sources, including stress from pain, financial 
 
         difficulties or depression, all of which claimant had experienced 
 
         since the injury (exhibit D, page 44).
 
         
 
              On June 2, 1987, Dr. Ruiz reported that claimant had 
 
         degenerative arthritis of the lumbosacral spine and a possible 
 
         disc problem.  He stated that claimant's condition was disabling 
 
         and that claimant should seek a different type of job rather than 
 
         return to farm work (exhibit C, pages 32 and 33).
 
         
 
              Claimant has been evaluated by Des Moines, Iowa neurosurgeon 
 
         Thomas A. Carlstrom, M.D. On September 15, 1987, Dr. Carlstrom 
 
         reported that claimant exhibited symptoms of a myofacial low back 
 
         strain.  He recommended that claimant reduce his weight by 40-50 
 
         pounds.  Dr. Carlstrom also opined that claimant's symptoms were 
 
         permanent and that he should follow activity restrictions of 
 
         avoiding all lifting in excess of 40 or 50 pounds, that he avoid 
 
         repetitive lifting in excess of 20 or 30 pounds, and that he 
 
         avoid working in cramped positions and driving tractors.  Dr. 
 
         Carlstrom assigned a seven percent permanent impairment rating 
 
         (exhibit F, page 52).  On January 8, 1988, Dr. Carlstrom reduced 
 
         his impairment rating to four percent, but did not change the 
 
         activity restrictions (exhibit F, page 58).  On June 14, 1988, 
 
         Dr. Carlstrom opined that claimant's headaches are not related to 
 
         his back problem.
 
         
 
         
 
         
 
         HACKNEY v. MARVIN TESKE 
 
         Page 4
 
         
 
         
 
         He went on to state that claimant would likely experience a 
 
         decrease in his symptoms if he would lose weight.  He then again 
 
         assigned a seven percent permanent impairment rating as being 
 
         related to the recent injury (exhibit E, page 51).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant was recently evaluated by D. E. Fisher, M.D., a 
 
         Mason City, Iowa orthopdedic surgeon.  Dr. Fisher concluded that 
 
         claimant has advanced degenerative arthritis in the lumbar spine, 
 
         narrowing of the foramina at L5-Sl, advanced facet joint 
 
         arthritis, degenerative joint disease and spinal stenosis, all of 
 
         which had developed at a relatively young age.  Dr. Fisher 
 
         recommended that claimant lose 50 pounds in order to get his 
 
         weight down to 220 pounds and that he would then be a candidate 
 
         for spinal fusion surgery.  Dr. Fisher recommended that claimant 
 
         limit his working at the present time to 20 hours per week and 
 
         that he avoid all heavy lifting, bending, stooping or shoveling 
 
         (exhibit J, pages 83 and 84).
 
         
 
              Claimant also has a history of psychological treatment.  He 
 
         had been hospitalized for mental problems in 1976 and 1977.  He 
 
         was being seen in April and May, 1986 at which time reference was 
 
         made to a history of back problems (exhibit B, page 14).  
 
         Claimant stated that the treatment was for a disturbance which 
 
         had resulted from an injury where he narrowly escaped serious 
 
         injury in a power take-off accident.  The notes of that 
 
         psychological treatment make reference to money being claimant's 
 
         number one concern, the bank talking about selling the cattle 
 
         with which he is emotionally involved, interpersonal relationship 
 
         problems with his father, and that he cannot see himself as ever 
 
         being able to find a job elsewhere due to his back condition.  
 
         Claimant also consulted with a psychologist in 1987 (exhibit B, 
 
         pages 15 and 16).
 
         
 
              Claimant testified that he was paid workers' compensation 
 
         benefits until July or August of 1988.  He explained that he has 
 
         psychological difficulties and has felt a lot of depression which 
 
         evolved into suicidal thoughts.  He stated that he loved his 
 
         cattle and had to sell them because he was unable to take care of 
 
         them properly. claimant stated that his suicidal thoughts started 
 
         in October, 1988.
 
         
 
              Claimant testified that he consulted Michael Taylor, M.D., a 
 
         Des Moines psychiatrist, on October 18, 1988 through an 
 
         arrangement made by legal counsel.  Dr. Taylor reported that 
 
         claimant had no diagnosable psychiatric disorder which would in 
 
         any way impair his ability to find or maintain employment.  He 
 
         did recommend, however, that claimant would benefit from 
 
         counseling (exhibit G, page 60).
 
         
 
         
 
         
 
         HACKNEY v. MARVIN TESKE
 
         Page 5
 
         
 
         
 
              Claimant was then hospitalized at the Ellsworth Municipal 
 
         Hospital Mental Health Unit from November 9, 1988 to December 5, 
 
         1988.  He was diagnosed as having major depression and a 
 
         passive-aggressive personality (exhibit H, page 68).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant had been administered an MMPI psychological test on 
 
         October 26, 1988, but the test profiles were determined to be 
 
         invalid (exhibit G, page 59).  The same test was subsequently 
 
         administered on November 10, 1988.  The results were noted to be 
 
         of doubtful validity and to indicate confusion, malingering or 
 
         fabrication (exhibit I, page 74).
 
         
 
              Psychiatrist N. K. Saini, M.D., has treated claimant through 
 
         the Mental Health Center of Mid-Iowa, Inc., at 
 
         Marshalltown,.Iowa.  On January 23, 1989, Dr. Saini made the 
 
         diagnosis that claimant had major depression, a 
 
         passive-aggressive personality and severe back problems.  
 
         Stressors which were identified included serious financial 
 
         problems, expectation of a child in July, 1989, personality 
 
         problems this pending workers' compensation claim, headaches and 
 
         interpersonal problems.  Dr. Saini provided prescription 
 
         medication and recommended continued counseling (exhibit B, pages 
 
         20-22).  The counseling was provided by Lawrence M. Stewart, 
 
         M.S., and Cindy Starr, M.S.W. (exhibit B, pages 23-26).
 
         
 
              Claimant was again seen by Dr. Saini on May 22, 1989 at 
 
         which time the doctor reported:
 
         
 
              This patient was initially seen by me for psychiatric 
 
              assessment on January 23, 1989.  At that time it was 
 
              mentioned that this patient has been suffering from mild 
 
              depression even before he sustained his low back injury on 
 
              December 5, 1986.  Today according to the patient he is more 
 
              worried about his Workmen's Compensation than receiving 
 
              treatment from the Mental Health Center.  At times he has 
 
              not been compliant with psychotropic medication.  According 
 
              to him he has sustained middle back injury in 1981, then two 
 
              injuries at the same area which is lower book on 12-5-86 and 
 
              12-24-86 and this Workmen's Compensation has been going on 
 
              for two and a half years.  According to the patient he has 
 
              been having financial problems, doctors' bills, etc. and he 
 
              continues to have low self-esteem, pessimism but no active 
 
              suicidal ideation.  It appears that this therapy from the 
 
              Mental Health center is being taken by this patient in order 
 
              to substantiate his case rather
 
         
 
         
 
         
 
         HACKNEY v. MARVIN TESKE 
 
         Page 6
 
         
 
         
 
              than for real genuine purpose.  He seems to have personality 
 
              problems and he shows a lot of discontentment during the 
 
              therapy.  He lacks motivation and drive and seems like he 
 
              does not want to work or at least does not want to give a 
 
              try and always blames for his lower back injury.  Even 
 
              though this case is more for orthopaedic surgeon to handle 
 
              rather than for a psychiatrist and Dr. Lang from McFarland 
 
              Clinic has been taking care of his orthopaedic problems, 
 
              individual counseling from the Mental Health Center might 
 
              help to minimize his discomfort and unease.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
         (Exhibit B, page 27)
 
         
 
              Claimant was again hospitalized at the Ellsworth Municipal 
 
         Hospital Mental Health Unit from June 5, 1989 until June 26, 
 
         1989.  The impression from B. R. Kaza, M.D., the treating 
 
         psychiatrist, was depression, passive-aggressive personality, 
 
         dependent personality and mild obesity with a history of low back 
 
         injury (claimant's exhibit A).
 
         
 
              Dr. Taylor's deposition was taken July 24, 1989.  Dr. Taylor 
 
         confirmed that when he had initially evaluated claimant on 
 
         October 18, 1988, he found no psychiatric disorder which was 
 
         severe enough to interfere with claimant's ability to work.  He 
 
         made the same finding at the time of a subsequent evaluation on 
 
         May 9, 1989 (exhibit 2, pages 3, 4 and 7).  Dr. Taylor stated 
 
         that the MMPI results indicated that claimant is intentionally 
 
         trying to make himself appear to be more ill than he actually is 
 
         (exhibit 2, page 6).  Dr. Taylor agreed with the observations 
 
         made by Dr. Saini in his May 22, 1989 report (exhibit 2, pages 8 
 
         and 9)   Dr. Taylor agreed that claimant has chronic personality 
 
         problems, but stated that they are not causally connected to the 
 
         back injury (exhibit 2, pages 10-14).
 
         
 
              Claimant testified that prior to December 5, 1986 he had 
 
         been able to recover from his back injuries within a few days, 
 
         but that his back has remained sore constantly since December 5, 
 
         1986.  Claimant stated that his back is always stiff and sore and 
 
         that there is always some pain present.  Claimant related that he 
 
         has lost 17 pounds since seeing Dr. Fisher approximately a month 
 
         ago.  He stated that he would like to have the surgery performed 
 
         if it will be beneficial, but that he wants a second opinion from 
 
         Dr. Lang.
 
         
 
              Claimant stated that he has started his own woodworking 
 
         business with assistance from Resource Opportunities, Inc.  He 
 
         stated that the venture has not been particularly
 
         
 
         
 
         
 
         HACKNEY v. MARVIN TESKE 
 
         Page 7
 
         
 
         
 
         profitable.  Claimant has also sought employment.  He stated that 
 
         he has sought work in the Marshalltown, Eldora, Ames and Iowa 
 
         Falls areas.  Claimant stated that the only jobs which he has 
 
         found have been part-time, far away from home, or paid at the 
 
         minimum wage level.
 
         
 
              Claimant testified at hearing that he has been married to 
 
         his wife, Peggy, for seven years, that they have one child who is 
 
         two years of age.  Peggy was presently pregnant and six days 
 
         overdue with their second child on the date of hearing.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Peggy Hackney, claimant's spouse, stated that claimant's 
 
         personality changed in September or October, 1988 from a good 
 
         natured, friendly person to one who did not want to do anything, 
 
         help around the home or leave the home.  She stated that he 
 
         started to sleep all day.
 
         
 
              Peggy testified that claimant has genuinely tried to find a 
 
         job, but has been unsuccessful.  She stated that the 
 
         hospitalizations which have occurred were beneficial to him.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              This decision concerns two files and two injury dates.  Upon 
 
         considering all the evidence, it appears that the most 
 
         significant injury is the one which occurred on December 5, 1986.  
 
         Claimant never resumed full, unrestricted employment following 
 
         that injury.  Further, the injury of December 24, 1986 occurred 
 
         with very little in the way of trauma.  It is perceived by the 
 
         undersigned to have been more in the nature of a manifestation of 
 
         the disability caused by the December 5, 1986 injury rather than 
 
         a separate injury-producing event of its own.  It is therefore 
 
         determined that the permanent disability which afflicts Kevin 
 
         Hackney resulted from the December 5, 1986 injury, rather than 
 
         the December 24, 1986 injury.  The appropriate rate of 
 
         compensation is therefore $164.71 per week for all healing period 
 
         and permanent partial disability.
 
         
 
              With regard to claimant's back, the physicians seem to agree 
 
         that he had a preexisting degenerative condition prior to 
 
         December of 1986.  Both Drs.  Lang and Carlstrom, the only ones 
 
         who have provided impairment ratings, seem to be in substantial 
 
         agreement regarding the existence of a seven percent permanent 
 
         impairment which resulted from the December, 1986 incidents.  
 
         They agree that he should not return to farming types of work and 
 
         that he should practice activity restrictions.  Their assessments 
 
         are not contradictory and are accepted as being correct.  The 
 
         assessment made by Dr. Fisher is likewise not in substantial
 
         
 
         
 
         
 
         HACKNEY v. MARVIN TESKE 
 
         Page 8
 
         
 
         
 
         disagreement with either Dr. Lang or Dr. Carlstrom.  The events 
 
         which occurred in December of 1986 were not major traumas.  
 
         Nevertheless, the physicians have now recommended that claimant 
 
         cease performing the type of work in which he had obtained 
 
         training at the Kirkwood Community College and in which he had 
 
         been employed throughout all of his working life.
 
         
 
              .Claimant clearly has a long-standing personality disorder.  
 
         There is some disagreement among the psychiatrists with regard to 
 
         whether claimant actually had a medically-diagnosed depression.  
 
         None of the psychiatrists, however, have issued an opinion which 
 
         causally connects the possible depressive episode to the 
 
         December, 1986 injuries.  The sale of the cow herd was apparently 
 
         a major trauma for claimant.  He developed tears at hearing when 
 
         discussing it.  It was, however, a situation which was apparently 
 
         underway when he received counseling in April and May of 1986.  
 
         Essentially all of the stressors, except for the pending 
 
         litigation and the arrival of a second child, were present in 
 
         April and May of 1986.  The assessment of this case as made by 
 
         Dr. Saini on May 22, 1989 is accepted by the undersigned as being 
 
         correct.  It is corroborated by the assessment made by Dr. 
 
         Taylor.  It is therefore determined that Kevin Hackney has failed 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         to prove by a preponderance of the evidence that he sustained any 
 
         emotional or psychological injury which is disabling on either a 
 
         temporary or permanent basis as a result of the December, 1986 
 
         injuries.  His preexisting personality disorder is, however, a 
 
         factor in his overall makeup as an individual.  It makes the 
 
         physical injury which he sustained more disabling, from a loss of 
 
         earning capacity standpoint, than what it would have been for a 
 
         similar person who did not have a psychological disorder.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              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-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
 
         
 
         
 
         
 
         HACKNEY v. MARVIN TESKE
 
         Page 9
 
         
 
         
 
         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 has been medically advised to refrain from 
 
         returning to farm work.  In order to resume gainful employment, 
 
         he will either require retraining or be compelled to accept some 
 
         type of light, unskilled work, the type of work which typically 
 
         provides a very low rate of pay.  When all of the appropriate 
 
         factors of industrial disability are considered, it is determined 
 
         that Kevin Hackney has sustained a 25 percent permanent partial 
 
         disability as a result of the December 5, 1986 injury.
 
         
 
              In view of the findings previously made herein, it is 
 
         determined that defendants are not responsible for payment of the 
 
         costs of any of claimant's psychological treatment.  They are, 
 
         however, responsible for the treatment of claimant's back.  The 
 
         charges found in exhibit 7 at pages 177, 178, 179, 180, 181, 182 
 
         and 185 are determined to have been incurred for treatment of the 
 
         back condition, rather than the alleged psychological condition.  
 
         Defendants are therefore responsible for their payment as 
 
         follows:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
          McFarland Clinic, P.C.         $ 86.50
 
          Iowa Methodist Medical Center    54.60
 
          Eldora Pharmacy                  97.12
 
          Mary Greeley Hospital           380.00
 
          Total                          $618.22
 
         
 
         Defendants are, of course, entitled to credit for any amounts 
 
         which they have previously paid toward satisfying the listed 
 
         obligations.
 
         
 
         
 
         
 
         HACKNEY v. MARVIN TESKE
 
         Page 10
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1. The injury which Kevin Hackney sustained on December 5, 
 
         1986 is a substantial factor in producing the disability which 
 
         currently afflicts him.
 
         
 
              2. The injury was an aggravation of a preexisting 
 
         degenerative condition in his spine.
 
         
 
              3. The injury has become permanent.
 
         
 
              4. The assessment of the orthopaedic injury as made by Drs. 
 
         Lang and Carlstrom is correct.  It is necessary for Hackney to 
 
         enter a field of work other than farming.
 
         
 
              5. The injury which Hackney sustained on December 24, 1986 
 
         was a manifestation of the disability produced by the December 5, 
 
         1986 injury.  It was only an aggravation of the disability caused 
 
         by the December 5, 1986 injury.  The primary injury-producing 
 
         event was the one which occurred on December 5, 1986.
 
         
 
              6. The evidence in the case fails to show it to be probable 
 
         that either of the December injuries was a substantial factor in 
 
         producing any temporary or permanent psychological or emotional 
 
         disability affecting Kevin Hackney.
 
         
 
              7. Kevin Hackney has a quite substantial preexisting 
 
         personality disorder which was active and manifested prior to 
 
         December of 1986.  It is that disorder, rather than the injury, 
 
         which is primarily responsible for any valid psychological 
 
         symptoms which he may have.
 
         
 
              8. Kevin Hackney's credibility as a witness is severely 
 
         impaired by his apparent lack of motivation and MMPI test 
 
         results.
 
         
 
                                CONCLUSIONS OF LAW
 
                                        
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              1. This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2. Claimant has proven by a preponderance of the evidence 
 
         that he sustained a seven percent permanent impairment of the 
 
         body as a whole as a result of the December 5, 1986 injury, but 
 
         he has not proven by a preponderance of the evidence that either 
 
         December injury produced any psychological or emotional 
 
         disability.
 
         
 
         
 
         
 
         HACKNEY v. MARVIN TESKE
 
         Page 11
 
         
 
         
 
              3. The injury to claimant's back is compensable as a 
 
         permanent aggravation of a preexisting condition, but the 
 
         evidence has failed to prove, by a preponderance of the evidence, 
 
         that the back injury, either directly or indirectly, was a 
 
         proximate cause of any emotional or psychological disability 
 
         which afflicts Kevin Hackney.
 
         
 
              4. Kevin Hackney has a 25 percent permanent partial 
 
         disability due to his back condition which entitles him to 
 
         receive 125 weeks of compensation under the provisions of Iowa 
 
         Code section 85.34(2)(u).
 
         
 
              5. Kevin Hackney is entitled to recover the medical expenses 
 
         incurred in obtaining treatment for the back injury, but not for 
 
         any expenses incurred in treating his psychological condition.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant one 
 
         hundred twenty-five (125) weeks of compensation for permanent 
 
         partial disability at the rate of one hundred sixty-four and 
 
         71/100 dollars ($164.71) per week payable commencing June 25, 
 
         1987.
 
         
 
              IT IS FURTHER ORDERED that defendants receive credit in the 
 
         amount of nine thousand six hundred eighty-nine and 82/100 
 
         dollars ($9,689.82) for the permanent partial disability 
 
         compensation previously paid.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant 
 
         twenty-nine and one-sevenths (29 1/7) weeks of compensation for 
 
         healing period at the rate of one hundred sixty-four and 71/100 
 
         dollars ($164.71) per week payable commencing December 24, 1986.  
 
         Defendants are entitled to credit in the amount of four thousand 
 
         five hundred forty-seven and 18/100 dollars ($4,547.18) for 
 
         healing period compensation which was previously paid.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the following 
 
         medical expenses:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
          McFarland Clinic,  P.C.        $ 86.50
 
          Iowa Methodist  Medical Center   54.60
 
          Eldora Pharmacy                  97.12
 
          Mary Greeley Hospital           380.00
 
          Total                          $618.22
 
         
 
         Defendants are entitled to credit for any amounts previously paid 
 
         against the foregoing expenses.
 
         
 
         
 
         
 
         HACKNEY v. MARVIN TESKE
 
         Page 12
 
         
 
         
 
              IT IS FURTHER ORDERED that defendants pay interest on all 
 
         amounts of weekly compensation which were not paid at the time 
 
         the same became due from the date each payment came due until the 
 
         date of actual payment pursuant to Iowa Code section 85.30.
 
         
 
              IT IS FURTHER ORDERED that the costs of this proceeding are 
 
         assessed against defendants pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file claim activity 
 
         reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 9th day of February, 1990.
 
         
 
         
 
         
 
                                         MICHAEL G. TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Theodore R. Hoglan
 
         Attorney at Law
 
         34 South First Avenue
 
         Marshalltown, Iowa 50158
 
         
 
         Mr. William D. Scherle 
 
         Attorney at Law 
 
         8th Floor, Fleming Building 
 
         Des Moines, Iowa 50309
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1108.20, 1402.30, 1402.40
 
                                         1803, 2204, 2206
 
                                         Filed February 9, 1990
 
                                         MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KEVIN HACKNEY,
 
         
 
              Claimant,
 
         
 
         VS.                               File Nos. 842000
 
                                                    842493
 
         MARVIN TESKE,
 
                                         A R B I T R A T I 0 N
 
              Employer,
 
                                             D E C I S I 0 N
 
         and
 
         
 
         FARM BUREAU MUTUAL INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1108.20, 1402.30, 1402.40, 1803, 2204, 2206
 
         
 
              Claimant, with preexisting degenerative condition in his 
 
         back, sustained a permanent aggravation of that condition.  He 
 
         was awarded 25 percent permanent partial disability where the 
 
         injury required him to change the line of work in which he had 
 
         been trained and employed.
 
         
 
              Claimant also had a preexisting psychological disorder which 
 
         was not shown by a preponderance of the evidence to have been 
 
         aggravated by the back injury or to have produced any temporary 
 
         or permanent disability.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1803
 
                           Filed January 31, 1991
 
                           DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            NANCY SIMONSON,     :
 
                      :
 
                 Claimant, :         File Nos. 798628
 
                      :                   842007
 
            vs.       :                   851960
 
                      :
 
            SNAP-ON TOOLS, :       A R B I T R A T I O N
 
                      :
 
                 Employer, :          D E C I S I O N
 
                      :
 
            and       :
 
                      :
 
            ROYAL INSURANCE COMPANY, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            1803
 
            Claimant's industrial disability was calculated as a 
 
            percentage of 500 weeks, not as a percentage of anticipated 
 
            life expectancy.
 
            
 
 
        
 
 
 
 
 
        
 
                                                
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        LAWRENCE BERRY,
 
        
 
             Claimant,
 
             
 
        vs.                                               File No. 
 
        842107
 
        
 
        ANDERSON ERICKSON DAIRY CO.,                      A R B I T R A 
 
        T I O N
 
        
 
            Employer,                                    D E C I S I O 
 
        N
 
        
 
        and                                            F I L E D
 
        
 
        EMPLOYER MUTUAL COMPANIES,                    JUN 26 1989
 
        
 
             Insurance Carrier,                   INDUSTRIAL SERVICES
 
             Defendants.
 
             
 
             
 
                                      INTRODUCTION
 
        
 
             This is a proceeding in arbitration brought by Lawrence 
 
             Berry against Anderson Erickson Dairy Company and Employers 
 
             Mutual Companies, the employer's insurance carrier.
 
        
 
            The case was heard and fully submitted at Fort Dodge, Iowa 
 
        on October 31, 1988. The record in this proceeding consists of 
 
        testimony from Lawrence Berry, Ronald Santema, Thomas Davidson 
 
        and William Sharp. The record also contains claimant's exhibits 
 
        1, 2 and 3 and defendants' exhibits A and B.
 
        
 
                                      ISSUES
 
        
 
             The only issue to be determined is the nature and extent of 
 
             claimant's permanent disability which resulted from a stipulated 
 
             injury that occurred on December 17, 1986.
 
        
 
                                 SUMMARY OF EVIDENCE
 
        
 
             The following is a summary of evidence presented in this 
 
             case. Of all the evidence received at the hearing, only that 
 
             considered most pertinent to this decision is discussed. 
 
             Conclusions about what the evidence showed are inevitable with 
 
             any summarization. The conclusions in the following summary 
 
             should be considered to be preliminary findings of fact.
 
        
 
            Lawrence Berry is a 60-year-old man who was employed by 
 
        Anderson Erickson Dairy as a route delivery driver for 16 years. 
 
        His previous employment had been as a route delivery driver for 
 
        Lang Dairy for 16 years.
 
                       
 
             On December 17, 1986, claimant was injured when a pile of 
 
             boxes fell over on him. The injury consisted of a torn rotator 
 
             cuff in his right shoulder. Claimant underwent surgical repair 
 
             of the torn rotator cuff which was performed by E. M. Mumford, 
 
             M.D., a Sioux City, Iowa orthopaedic surgeon. Following 
 

 
        
 
 
 
 
 
             recuperation from the surgery, claimant has experienced residual 
 
             restriction of motion, weakness and discomfort. Dr. Mumford 
 
             rated claimant as having a 35 percent permanent impairment of his 
 
             right upper extremity (exhibit 2, page 2). Claimant has an 
 
             ongoing prescription for pain relief medication.
 
             
 
             Claimant stated that he felt he was unable to perform the 
 
             full range of duties required for a route delivery driver so he 
 
             retired effective May 31, 1987. Claimant testified that he would 
 
             have liked to continue working until age 62 if he had not been 
 
             injured and that if he had done so, his pension would be $100 
 
             greater. Claimant had sought preliminary approval for his 
 
             pension on December 10, 1986.
 
                  
 
             Since retiring, claimant has not returned to any type of 
 
             employment or self-employment. Claimant's nonwork activities and 
 
             leisure activities have been restricted since the injury 
 
             occurred.
 
             
 
             William Sharp, the Anderson Erickson supervisor for 
 
             northwest Iowa, stated that claimant could have returned to work 
 
             whenever he chose to do so and that retirement was claimant's 
 
             choice rather than mandated by the company. Sharp stated that 
 
             the type of equipment used by route delivery drivers has changed 
 
             so that the work is less strenuous at the present time than it 
 
             was when claimant was injured. Sharp stated that he and claimant 
 
             had discussed claimant's retirement prior to December 17, 1986 
 
             and that claimant had indicated he planned to retire in the 
 
             spring of 1987. Sharp stated that claimant never expressed an 
 
             intent to retire at age 62.
 
                  
 
                            APPLICABLE LAW AND ANALYSIS
 
                  
 
             It was stipulated by the parties that claimant's entitlement 
 
             to compensation for permanent partial disability commenced July 
 
             22, 1987. Claimant has been paid 97 weeks of compensation at the 
 
             stipulated rate of $261.60 per week. Of that total, 31 weeks are 
 
             attributable to healing period and the remaining 66 weeks are 
 
             attributable to permanent partial disability compensation.
 
             
 
             The first issue to be determined is whether the disability 
 
             should be evaluated as a disability to a scheduled member or 
 
             industrially. The physical abnormality was a torn rotator cuff. 
 
             The rotator cuff is the socket portion of the shoulder joint and 
 
             is on the body side of the shoulder joint. While most of the 
 
             manifestation of the disability involves the claimant's ability 
 
             to use his arm, the actual point of origin of that disability is 
 
             not located in claimant's arm. Accordingly, the disability is to 
 
             the body as a whole and should be evaluated industrially. 
 
             Lauhoff Grain Co. v. McIntosh, 395 N.W.2d 834 (Iowa 1986); Dailey 
 
             v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943).
 
        
 
             As claimant has an impairment to the body as a whole, an 
 
             industrial disability has been sustained. Industrial disability 
 
             was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
             593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain 
 
             that the legislature intended the term 'disability' to mean 
 
             'industrial disability' or loss of earning capacity and not a 
 
             mere 'functional disability' to be computed in the terms of 
 
             percentages of the total physical and mental ability of a normal 
 
             man."
 
        
 
            Functional impairment is an element to be considered in 
 
        determining industrial disability which is the reduction of 
 
        earning capacity, but consideration must also be given to the 
 
        injured employee's age, education, qualifications, experience and 
 

 
        
 
 
 
 
 
        inability to engage in employment for which he is fitted. Olson 
 
        v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 
 
        257 (1963).
 
        
 
            Compensation benefits are geared to weekly wage loss. It is 
 
        permissible to consider an injured employee's proximity to normal 
 
        retirement age when assessing permanent disability. Becke v. 
 
        Turner-Busch, Inc., 34th Biennial Report of the Industrial 
 
        Commissioner, 34 (App. Decn. 1979); Cruz vs. Chevrolet Grey Iron 
 
        Div. of Gen. Motors, 247 N.W.2d 764, 775 (Mich. 1976).
 
        
 
            Retirement from long-term employment as occurred in this 
 
        case does not always mean the end of an employee's work life. It 
 
        is not uncommon for individuals to move on to part-time work or 
 
        seasonal work of some type after they begin drawing a pension 
 
        from a long-term employer. Claimant has a severe loss of his 
 
        ability to use his right arm. He has no demonstrated aptitude 
 
        for intellectual pursuits. His retirement occurred at a 
 
        relatively young age. While claimant may have actually chosen to 
 
        retire in 1987 even if he had not been injured, he would have had 
 
        the physical capacity to engage in other types of employment. 
 
        Due to claimant's physical restrictions and the result obtained 
 
        form his surgery, he is foreclosed from work as a route delivery 
 
        driver, the only type of work he has performed in the last 30 
 
        years. This is a very important factor.
 
        
 
             When all the material factors of industrial disability are 
 
             considered, it is determined that claimant sustained a 40 percent 
 
             permanent partial disability as a result of the injury he 
 
             sustained on December 17, 1986. He is therefore entitled to 
 
             receive 200 weeks of compensation for permanent partial 
 
             disability.
 
        
 
                                 FINDINGS OF FACT
 
        
 
             1. The assessment of claimant's case as made by Dr. Mumford 
 
             is correct.
 
        
 
            2. Claimant is not physically capable of performing the 
 
        normal duties of a route delivery driver as a result of the 
 
        injuries he sustained on December 17, 1986.
 
        
 
            3. Claimant was considering retirement at the time of the 
 
        injury, but the injury denied claimant the option to continue 
 
        working.
 
        
 
            4. The injury foreclosed claimant from most types of 
 
        employment which he could have otherwise performed in a 
 
        semi-retired status even if he had chosen to retire from Anderson 
 
        Erickson Dairy.
 
        
 
            5. Claimant has a 40 percent loss of earning capacity that 
 
        was proximately caused by the torn rotator cuff which he 
 
        sustained on December 17, 1986.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
             1. This agency has jurisdiction of the subject matter of 
 
             this proceeding and its parties.
 
        
 
            2. Claimant sustained a 40 percent permanent partial 
 
        disability of the body as a whole as a result of the injuries he 
 
        sustained on December 17, 1986 which arose out of and in the 
 
        course of his employment with Anderson Erickson Dairy Company.
 
        
 
            3. Claimant is entitled to receive 200 weeks of 
 

 
        
 
 
 
 
 
        compensation for permanent partial disability under the 
 
        provisions of Iowa Code section 85.34(2)(u).
 
        
 
            4. The employer is entitled to credit for the 66 weeks of 
 
        permanent partial disability compensation previously paid.
 
        
 
                                      ORDER
 
        
 
             IT IS THEREFORE ORDERED that defendants pay claimant two 
 
             hundred (200) weeks of compensation for permanent partial 
 
             disability at the stipulated rate of two hundred sixty-one and 
 
             60/100 dollars ($261.60) per week payable commencing July 22, 
 
             1987.
 
        
 
            IT IS FURTHER ORDERED that defendants shall receive credit 
 
        for the sixty-six (66) weeks of permanent partial disability 
 
        compensation previously paid and shall pay all accrued unpaid 
 
        amounts in a lump sum together with interest pursuant to Code 
 
        section 85.30 computed from the date each payment came due until 
 
        the date of actual payment.
 
        
 
             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 26th day of June, 1989.
 
        
 
        
 
        
 
        
 
        
 
        
 
                                       MICHAEL G. TRIER
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
        
 
        Copies To:
 
        
 
        Mr. Colin J. McCullough
 
        Attorney at Law
 
        701 West Main Street
 
        Sac City, Iowa 50583
 
        
 
        Mr. Claire F. Carlson
 
        Attorney at Law
 
        7th Floor, Snell Building
 
        P.O. Box 957
 
        Fort Dodge, Iowa 50501
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            5-1803
 
            Filed February 28, 1990
 
            David E. Linquist
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LAWRENCE BERRY,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 842107
 
            ANDERSON ERICKSON DAIRY CO.,  :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYER MUTUAL COMPANIES,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Deputy's award of 40 percent industrial disability to milk 
 
            truck driver with back injury affirmed on appeal.
 
            
 
 
        
 
 
 
 
 
        
 
        
 
                                            51803, 51803.1
 
                                            Filed June 26, 1989
 
                                            MICHAEL G. TRIER
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        LAWRENCE BERRY,
 
        
 
            Claimant,
 
        
 
        vs.                                               File No. 
 
        842107
 
        
 
        ANDERSON ERICKSON DAIRY CO.,                      A R B I T R A 
 
        T I O N
 
        
 
            Employer,                                    D E C I S I O 
 
        N
 
        
 
        and
 
        
 
        EMPLOYER MUTUAL COMPANIES,
 
        
 
            Insurance Carrier,
 
             Defendants.
 
             
 
             
 
        51803
 
             
 
             Claimant, who was approaching retirement age, was awarded 40 
 
             percent permanent partial disability where the result from 
 
             surgery was not particularly good and he was afflicted with 
 
             severe residual restriction of motion of his arm and continuing 
 
             pain.
 
        
 
        51803.1
 
        
 
             Claimant's injury was a torn rotator cuff which was held to 
 
             be an injury to the body a a whole, rather than a scheduled 
 
             member injury to the arm.
 
             
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed June 28, 1991
 
            Clair R. Cramer
 
            BJO
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            DENNIS HILL,   :
 
                      :   
 
                 Claimant, :   
 
                      :   File Nos. 881074/842646
 
            vs.       :
 
                      :         A P P E A L
 
            OSCAR MAYER FOODS CORP., :
 
                      :       D E C I S I O N
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ___________________________________________________________
 
            
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed September 
 
            12, 1989.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CHARLES E. STILLIAN,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 File No. 842919
 
         ATLANTIC STEEL ERECTORS, LTD.,:
 
                                                A R B I T R A T I 0 N
 
         
 
              Employer,                             D E C I S I 0 N
 
         and
 
         
 
              HARTFORD INSURANCE GROUP,
 
                                        
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
                                        
 
              This is a proceeding in arbitration brought by Charles E. 
 
         Stillian, claimant, against Atlantic Steel Erectors, Ltd., 
 
         employer, and its insurance carrier, Hartford Insurance Company, 
 
         defendants.  The case was heard by the undersigned in Council 
 
         Bluffs, Iowa on April 6, 1989.
 
         
 
              The record consists of the testimony of claimant.  The 
 
         record also consists of the testimony of claimant's wife, Anne 
 
         Marie Stillian.  Finally, the record consists of joint exhibits 1 
 
         through 6.
 
         
 
                                      ISSUES
 
                                        
 
              As a result of the prehearing report and order submitted and 
 
         approved on April 6, 1989, the issues presented by.the parties 
 
         are:
 
         
 
              1. Whether there is a causal relationship between the 
 
         alleged injuries and the disability; and
 
         
 
              2. Whether claimant is entitled to temporary 
 
         disability/healing period benefits or permanent partial or total 
 
         disability benefits;
 
         
 
         
 
         
 
         STILLIAN V. ATLANTIC STEEL ERECTORS, LTD.
 
         Page 2
 
         
 
         
 
                                   STIPULATIONS
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Prior to the hearing, the parties entered into a number of 
 
         stipulations.  The stipulations are as follows:
 
         
 
              1. The existence,of an employer-employee relationship 
 
         between claimant and employer at the time of the alleged injury;
 
         
 
              2. That claimant sustained an injury on January 12, 1987 
 
         which arose out of and in the course of employment with employer;
 
         
 
              3. That the alleged injury is a cause of temporary 
 
         disability during a.period of recovery; that the work injury is a 
 
         cause of permanent disability;
 
         
 
              4. That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is stipulated to be 
 
         a scheduled member disability to the left leg, section 85.34 (2) 
 
         (o) ; and
 
         
 
              5. That in the event of an award of weekly benefits, the 
 
         rate of weekly compensation is stipulated to be $161.17 per week.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant, on January 12, 1987, fell from a roof.  The injury 
 
         took place in Illinois, where claimant was first treated.
 
         
 
              Medical records for claimant indicate he had an open 
 
         reduction/internal reduction of the left ankle.  Claimant was 
 
         then discharged from the hospital.
 
         
 
              Claimant's records next indicate he was treated by Thomas J. 
 
         Payne, M.D. As of May 22, 1987, Dr. Payne wrote:
 
         
 
              The prognosis for Charles Stillian is still undetermined.  
 
              He continues to walk with the aid of crutches.  Therefore, I 
 
              am unable to determine the permanency of the injury.
 
         
 
         (Joint Exhibit 2)
 
         
 
              Claimant testified he saw Scott Neff, D.O., on July 20, 
 
         1987.  In his deposition, Dr. Neff testified that claimant was 
 
         diagnosed as having:
 
         
 
              A.  He had had a bimalleolar fracture, and both of the bones 
 
              in the left ankle and the tibia or the bone on the inside of 
 
              the leg and the fibula or the bone on the outside of the leg 
 
              had been broken.  He had been taken
 
         
 
         
 
         
 
         STILLIAN V. ATLANTIC STEEL ERECTORS, LTD.
 
         Page 3
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              to surgery where the bones had been put back in proper 
 
              position and held with screws and plate.
 
              
 
              Q.  Were you able to ascertain from your examination of Mr. 
 
              Stillian and the x-rays as to how the healing process was 
 
              going in his ankle following the surgery?
 
              
 
              A.  Well, I told him that the fractures themselves had 
 
              healed but that an ankle injury of this type was associated 
 
              many times with an arthritic condition that develops in the 
 
              ankle as well as loss of motion.  He said he was obviously 
 
              aware that motion was lost because he didn't have very good 
 
              motion.  And we talked about surgery down the road if the 
 
              arthritis in his ankle would worsen.  I told him we would 
 
              try to remove the symptoms by removing the hardware, and 
 
              this was a relatively simple outpatient operation.  But that 
 
              if that didn't work and arthritis worsened, there was some 
 
              possibility that he would have to have further surgery in 
 
              the future up to and even including ankle fusion. 
 
              
 
              (Jt. Ex. 6, p. 9, 11. 3-9, 13-25; p. 10, 11. 1-6)
 
         
 
              Dr. Neff, in his deposition, determined that as of January 
 
         1989, claimant had a 26 percent impairment to the lower 
 
         extremity.  Dr. Neff opined claimant could perform "ground work."
 
         
 
              Claimant also testified he saw Oscar Jardon, M.D. at the 
 
         University of Nebraska Medical Center.  Claimant reported he only 
 
         saw Dr. Jardon on one occasion.
 
         
 
              Dr. Jardon testified by way of deposition.  He stated 
 
         claimant was first seen by him on July 12, 1988.  Dr. Jardon 
 
         opined it took approximately eighteen months before there was 
 
         total healing of an ankle injury similar to claimant's.  However, 
 
         with respect to claimant's situation, Dr. Jardon indicated he was 
 
         not able to state when claimant reached maximum recovery.  Dr. 
 
         Jardon determined claimant had a 40 percent functional impairment 
 
         rating to the lower extremity.
 
         
 
              During the hearing, claimant testified he returned to work 
 
         in September 1988.  However, claimant stated he went to work as a 
 
         machine operator.  He indicated he was unable to return to his 
 
         position as a steelworker.
 
         
 
              Ann Marie Stillian, wife of claimant, testified at the 
 
         hearing.  She reported claimant returned to work in September of 
 
         1988.  She also stated that based upon her observations, claimant 
 
         could not return to work until that time.
 
         
 
         
 
         
 
         STILLIAN V. ATLANTIC STEEL ERECTORS, LTD.
 
         Page 4
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                  APPLICABLE LAW
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on January 12, 1987 which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.. Section 85.3(l).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it."  Cedar Rapids Comm. Sch.  Dist. v. 
 
         Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283; 
 
         Musselman, 261 Iowa 352, 154 N.W.2d 128.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of January 12, 1987 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. 0. 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
 
         
 
         
 
         
 
         STILLIAN V. ATLANTIC STEEL ERECTORS, LTD.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 5
 
         
 
         
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and Other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
         N.W.2d 128.
 
         
 
              The right of a worker to receive compensation for injuries 
 
         sustained which arose out of and in the course of employment is 
 
         statutory.  The statute conferring this right can also fix the 
 
         amount of compensation to be paid for different specific 
 
         injuries, and the employee is not entitled to compensation except 
 
         as provided by the statute.  Soukup v. Shores Co., 222 Iowa 272, 
 
         268 N.W. 598 (1936).
 
         
 
                                     ANALYSIS
 
                                        
 
              The first issue to address is the date on which claimant's 
 
         healing period ended.. Healing period is defined in section 
 
         85.34(l) of the Iowa Code.  It reads:
 
         
 
              If an employee has suffered a personal injury causing 
 
              permanent partial disability for which compensation is 
 
              payable as provided in subsection 2 of this section, the 
 
              employer shall pay to the employee compensation for a 
 
              healing period, as provided in section 85.37, beginning on 
 
              the date of injury, and until the employee has returned to 
 
              work or it is medically indicated that significant 
 
              improvement from the injury is not anticipated or until the 
 
              employee is medically capable of returning to employment 
 
              substantially similar to the employment in which the 
 
              employee was engaged at the time of injury, whichever occurs 
 
              first.
 
         
 
              The parties stipulated the date of claimant's return to work 
 
         was immaterial.
 
         
 
              Dr.  Neff, the treating physician, is an orthopedic surgeon.  
 
         He opined that a normal healing period of six months was 
 
         customary in injuries similar to claimant's.  Dr. Neff also 
 
         testified with respect to claimant's injury:
 
         
 
              Q.  It would be your opinion, within a reasonable degree of 
 
              medical certainty, that Mr. Stillian was as good as he was 
 
              going to get approximately six months post injury?
 
              
 
              A.  As good as he was going to get following his initial 
 
              injury without anything else occurring which, as I 
 
              understand it, is the definition of end-of-healing period 
 
              from an event.
 
         
 
         
 
         STILLIAN V. ATLANTIC STEEL ERECTORS, LTD.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 6
 
         
 
         
 
              Q.  And that's in spite of the fact that the report of Mr. 
 
              Bower upon which you rely for your range of motion studies 
 
              indicates that he had had improved range of motion as of 
 
              January 11, 1989?
 
              
 
              A.  But that's the whole point.  Where have you been these 
 
              past two hours?.  The purpose of the initial study was after 
 
              one thing occurred and something else occurred which 
 
              entirely sets up a different scenario.  The whole reason to 
 
              remove the hardware was to try and improve the range of 
 
              motion.
 
              
 
              Q.  So his range of motion had improved following the 
 
              removal of that?
 
              
 
              A.  That's correct.
 
              
 
              Q.  Can you tell me how long after that?
 
              
 
              A.  Thirty-four days and six hours.
 
              
 
         (Neff Deposition, pp. 44-45)
 
         
 
              Dr. Neff's letter of May 16, 1988 also states:
 
         
 
                 This is always a difficult problem.  A fracture such as 
 
              this commonly heals if it is going to, in a maximum of six 
 
              months.  The x-rays then show healing, and that could be 
 
              described as the end of the healing process.  The changes 
 
              that occur in the joint following this type of trauma, 
 
              however, commonly take place over a period of 2-3 years.  I 
 
              believe his fractures has [sic] healed to their maximum at 6 
 
              months from injury.  Hardware was then later removed, and 
 
              the healing period from the hardware removal should be a 
 
              period of one month.  That does not mean that his condition 
 
              has improved or stabilized.  The ankle will, in my opinion, 
 
              continue to degenerate.
 
              
 
              He has lost a significant amount of motion.  He has some 
 
              permanent impairment to the ankle.
 
         
 
         (Neff Dep.  Ex. 5)
 
         
 
              Dr. Neff stated the hardware was removed on July 29, 1987.
 
         
 
              Dr. Jardon opined the healing period lasted eighteen months.  
 
         However, Dr. Jardon did not know when claimant had achieved 
 
         maximum use of his ankle.
 
         
 
         
 
         STILLIAN V. ATLANTIC STEEL ERECTORS, LTD.
 
         Page 7
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
              It is the determination of the undersigned that claimant's 
 
         healing period was from January 12, 1987 through September 2 
 
         1987.  The ending date was thirty-four days and six hours after 
 
         claimant.'s hardware was removed.  That was the time frame Dr. 
 
         Neff gave as the proper recovery period for claimant.  Greater 
 
         weight is accorded to Dr. Neff's testimony since he treated 
 
         claimant.  Dr. Neff saw claimant on eight occasions and he 
 
         performed the hardware removal procedure.  Dr. Jardon, on the 
 
         other hand, could not state when claimant had received maximum 
 
         recovery.  Dr. Jardon only saw claimant on one occasion.  Dr. 
 
         Jardon did not follow claimant's progress.  Therefore, it is the 
 
         determination of the undersigned that claimant is entitled to 
 
         28.857 weeks of healing period benefits.
 
         
 
              The next issue to address.is the nature and extent of 
 
         claimant's permanent partial disability to the lower extremity.  
 
         Dr. Neff assesses a 26 percent impairment factor to the lower 
 
         extremity.  Dr. Jardon assesses a 40 percent impairment figure.  
 
         Five percent of his figure is attributable to claimant's 
 
         subjective expressions of pain.  Both physicians are board 
 
         certified in orthopedic surgery.  Their qualifications are very 
 
         similar.  It is the determination of the undersigned after 
 
         reviewing the medical testimony, after hearing claimant's 
 
         testimony, and after observing claimant, that claimant has 
 
         sustained a 30 percent permanent partial disability to the left 
 
         lower extremity.
 
         
 
              Under section 85.34(2)(o) a 30 percent permanent partial 
 
         disability results in 66 weeks of benefits at the stipulated rate 
 
         of $161.17 per week.
 
         
 
                     FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
                                        
 
              FINDING 1. Claimant sustained an injury to his left lower 
 
         extremity as a result of his work injury on January 12, 1987.
 
         
 
              FINDING 2. Claimant was off work from January 12, 1987 
 
         through September 2, 1987.
 
         
 
              FINDING 3. Claimant did not return to work as a steelworker.
 
         
 
              FINDING 4.  claimant is working as a welder.
 
         
 
              FINDING 5. On September 2, 1987, claimant reached maximum 
 
         recovery.
 
         
 
              CONCLUSION A. Claimant was in the healing  period from 
 
         January 12, 1987 through September 2, 1987.
 
         
 
              FINDING 6. Claimant sustained a functional  impairment to 
 
         his left lower extremity of 26 to 40 percent.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         STILLIAN V. ATLANTIC STEEL ERECTORS, LTD.
 
         Page 8
 
         
 
         
 
              CONCLUSION B. Claimant sustained a permanent partial 
 
         disability of 30 percent to his left lower extremity.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, defendants are to pay unto claimant sixty-six 
 
         (66) weeks of permanent partial disability benefits at the 
 
         stipulated rate of one hundred sixty-one and 17/100 dollars 
 
         ($161.17) per week as a result of the injury on January 12, 1987.
 
         
 
              Defendants are to pay unto claimant thirty-three point four 
 
         two nine (33.429) weeks of healing period benefits at the rate of 
 
         one hundred sixty-one and 17/100 dollars ($161.17) per week as a 
 
         result of the injury on January 12, 1987.
 
         
 
              Payments that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         
 
              Defendants are to be given credit for all benefits 
 
         previously paid to claimant.
 
         
 
              Costs of this action are assessed against defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendants shall file a claim activity-report upon payment 
 
         of this award.
 
         
 
              Signed and filed this 29th day of December, 1989.
 
         
 
         
 
         
 
                                         MICHELLE A. McGOVERN
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies to:
 
         
 
         Mr Stephen A Rubes
 
         Attorney at Law
 
         222 S 6th St
 
         Council Bluffs IA 51501
 
         
 
         Mr George W Capps
 
         Attorney at Law
 
         P 0 Box 971
 
         Des Moines IA 50304
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                                  5-2209
 
                                                 Filed December 29, 1989
 
                                                 MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         .CHARLES E. STILLIAN,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 File No. 842919
 
         ATLANTIC STEEL ERECTORS, LTD.,:
 
                                                  A R B I T R A T I 0 N
 
              Employer,
 
                                                 D E C I S I 0 N
 
         
 
         and
 
         
 
         HARTFORD INSURANCE GROUP,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                        
 
         5-2209
 
         
 
              Claimant sustained a permanent partial disability to the 
 
         left lower extremity of 66 weeks.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                   
 
 
 
 
 
 
 
 
 
 
 
                   
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GEORGE CARSTENS,
 
         
 
              Claimant,                              File No. 842920
 
         
 
         vs.                                      A R B I T R A T I O N
 
                                                 
 
         ARMOUR FOOD COMPANY,                        D E C I S I O N
 
                                                 
 
              Employer,
 
                                                       F I L E D
 
         and
 
                                                       MAY 23 1990
 
         HARTFORD INSURANCE GROUP,
 
                                                   INDUSTRIAL SERVICES
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by George 
 
         Carstens against his former employer, Armour Food Company, and 
 
         its insurance carrier, Hartford Insurance Group, based upon an 
 
         injury that occurred on January 13, 1987.  This decision concerns 
 
         only the injury claim for January 13, 1987.  It does not address 
 
         the injury claim 1986, file number 851251.
 
         
 
              The case was heard and fully submitted at Mason City, Iowa 
 
         on December 11, 1989.  The evidence in the proceeding consists of 
 
         joint exhibit 1, which contains 39 subparts, and exhibit O.  It 
 
         should be noted that subpart 38 of exhibit 1 is the deposition of 
 
         Thomas Carlstrom, M.D., taken November 13, 1989 which is also 
 
         marked as defendants' exhibit K.  Subpart 39 of exhibit 1 is a 
 
         report from Kathryn Bennett dated October 31, 1989 which is also 
 
         marked as exhibit J.  The record also contains testimony from 
 
         George Carstens and Kathryn Bennett.
 
         
 
                                      ISSUES
 
         
 
              Claimant seeks weekly compensation for temporary total 
 
         disability, healing period and permanent partial disability.  The 
 
         employer does not dispute that claimant was injured and has paid 
 
         weekly compensation for temporary total disability totalling 
 
         three and one-seventh weeks, with six-sevenths weeks thereof 
 
         having been paid for the period January 13, 1987 through January 
 
         18, 1987 and the remainder having been paid commencing January 
 
         24, 1987, all as shown by claim activity reports.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              George A. Carstens is a 51-year-old gentleman who, on 
 
         January 13, 1987, strained his lumbar spine while lifting loins.  
 
         He was then off work until returning on January 19, but again 
 
         left work from January 24 through February 8, 1987 when he was 
 
         released to resume employment by his treating orthopaedic 
 
         surgeon, Michael W. Crane, M.D.
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Shortly thereafter, Carstens expressed complaints of pain in 
 
         the thoracic region of his spine.  Those complaints eventually 
 
         led to a diagnosis of discitis which produced disc space 
 
         destruction. He was seen by a number of physicians, none of whom 
 
         felt that the January, 1987 incident had produced the disc 
 
         problem.  Dr. Crane, in a report dated March 21, 1989, indicated 
 
         that the January 13, 1987 injury was a lumbar strain that 
 
         resolved (exhibit 34).  The assessment of the January 13, 1987 
 
         injury made by Dr. Crane is not contradicted by other evidence in 
 
         the record.  It is therefore found to be correct.  It is 
 
         specifically found that George A. Carstens did not develop any 
 
         degree of permanent disability as a result of the January 13, 
 
         1987 injury.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              It is therefore concluded that George A. Carstens is 
 
         entitled to recover three and one-seventh weeks of compensation 
 
         for temporary total disability under the provisions of Iowa Code 
 
         section 85.33.  Six-sevenths weeks thereof are payable commencing 
 
         January 13, 1987 and the remaining two and two-sevenths weeks are 
 
         payable commencing January 24, 1987.  The weekly benefits are 
 
         payable at the stipulated rate of $207.31 per week.  The entire 
 
         amount has been previously paid.
 
         
 
              Claimant is not entitled to recover any compensation for 
 
         permanent partial disability as a result of the January 13, 1987 
 
         injury.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that claimant take nothing from this 
 
         proceeding.
 
         
 
              IT IS FURTHER ORDERED that the costs of this action are 
 
         assessed against the claimant pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file a claim activity 
 
         report consistent with the provisions of this ruling pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 23rd day of May, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
                                            
 
         Copies To:
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Mr. Robert W. Pratt
 
         Attorney at Law
 
         1913 Ingersoll Avenue
 
         Des Moines, Iowa  50309
 
         
 
         Mr. Marvin E. Duckworth
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa  50312
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GEORGE CARSTENS,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 842920
 
            ARMOUR FOOD COMPANY,          :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            HARTFORD INSURANCE GROUP,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration brought by George 
 
            Carstens against his former employer, Armour Food Company, 
 
            and its insurance carrier, Hartford Insurance Group, based 
 
            upon an injury that occurred on January 13, 1987.  This 
 
            decision concerns only the injury claim for January 13, 
 
            1987.  It does not address the injury claim for December 22, 
 
            1986, file number 851251.
 
            
 
                 The case was heard and fully submitted at Mason City, 
 
            Iowa on December 11, 1989.  The evidence in the proceeding 
 
            consists of joint exhibit 1, which contains 39 subparts, and 
 
            exhibit O.  It should be noted that subpart 38 of exhibit 1 
 
            is the deposition of Thomas Carlstrom, M.D., taken November 
 
            13, 1989 which is also marked as defendants' exhibit K.  
 
            Subpart 39 of exhibit 1 is a report from Kathryn Bennett 
 
            dated October 31, 1989 which is also marked as exhibit J.  
 
            The record also contains testimony from George Carstens and 
 
            Kathryn Bennett.
 
            
 
                                      issues
 
            
 
                 Claimant seeks weekly compensation for temporary total 
 
            disability, healing period and permanent partial disability.  
 
            The employer does not dispute that claimant was injured and 
 
            has paid weekly compensation for temporary total disability 
 
            totalling three and one-seventh weeks, with six-sevenths 
 
            weeks thereof having been paid for the period January 13, 
 
            1987 through January 18, 1987 and the remainder having been 
 
            paid commencing January 24, 1987, all as shown by claim 
 
            activity reports.
 
            
 
                                 findings of fact
 
            
 
                 George A. Carstens is a 51-year-old gentleman who, on 
 
            January 13, 1987, strained his lumbar spine while lifting 
 
            loins.  He was then off work until returning on January 19, 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            but again left work from January 24 through February 8, 1987 
 
            when he was released to resume employment by his treating 
 
            orthopaedic surgeon, Michael W. Crane, M.D.
 
            
 
                 Shortly thereafter, Carstens expressed complaints of 
 
            pain in the thoracic region of his spine.  Those complaints 
 
            eventually led to a diagnosis of discitis which produced 
 
            disc space destruction.  He was seen by a number of 
 
            physicians, none of whom felt that the January, 1987 
 
            incident had produced the disc problem.  Dr. Crane, in a 
 
            report dated March 21, 1989, indicated that the January 13, 
 
            1987 injury was a lumbar strain that resolved (exhibit 34).  
 
            The assessment of the January 13, 1987 injury made by Dr. 
 
            Crane is not contradicted by other evidence in the record.  
 
            It is therefore found to be correct.  It is specifically 
 
            found that George A. Carstens did not develop any degree of 
 
            permanent disability as a result of the January 13, 1987 
 
            injury.
 
            
 
                                conclusions of law
 
            
 
                 It is therefore concluded that George A. Carstens is 
 
            entitled to recover three and one-seventh weeks of 
 
            compensation for temporary total disability under the 
 
            provisions of Iowa Code section 85.33.  Six-sevenths weeks 
 
            thereof are payable commencing January 13, 1987 and the 
 
            remaining two and two-sevenths weeks are payable commencing 
 
            January 24, 1987.  The weekly benefits are payable at the 
 
            stipulated rate of $207.31 per week.  The entire amount has 
 
            been previously paid.
 
            
 
                 Claimant is not entitled to recover any compensation 
 
            for permanent partial disability as a result of the January 
 
            13, 1987 injury.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that claimant take nothing from 
 
            this proceeding.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against the claimant pursuant to Division of 
 
            Industrial Services Rule 343-4.33.
 
            
 
                 IT IS FURTHER ORDERED that defendants file a claim 
 
            activity report consistent with the provisions of this 
 
            ruling pursuant to Division of Industrial Services Rule 
 
            343-3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            Mr. Robert W. Pratt
 
            Attorney at Law
 
            1913 Ingersoll Avenue
 
            Des Moines, Iowa  50309
 
            
 
            Mr. Marvin E. Duckworth
 
            Attorney at Law
 
            Suite 111, Terrace Center
 
            2700 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
            
 
            
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1402.40, 5-2907
 
                                            Filed May 23, 1990
 
                                            MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         GEORGE CARSTENS,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                 File No. 842920
 
         ARMOUR FOOD COMPANY,
 
                                              A R B I T R A T I 0 N 
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         HARTFORD INSURANCE GROUP,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         5-1402.40
 
         
 
              Claimant failed to prove that he sustained any disability, 
 
         other than the temporary total disability which had been 
 
         previously paid, based upon the injury which the employer had 
 
         admitted.
 
         
 
         5-2907
 
         
 
              Costs were assessed against unsuccessful claimant.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1402.40, 5-2907
 
                                               Filed May 23, 1990
 
                                               MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GEORGE CARSTENS,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 842920
 
            ARMOUR FOOD COMPANY,          :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            HARTFORD INSURANCE GROUP,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            5-1402.40
 
            Claimant failed to prove that he sustained any disability, 
 
            other than the temporary total disability which had been 
 
            previously paid, based upon the injury which the employer 
 
            had admitted.
 
            
 
            5-2907
 
            Costs were assessed against unsuccessful claimant.
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         CLINT MORRISON,               :
 
                                       :
 
              Claimant,                : File Nos. 843176 
 
                                       :           979253
 
                                       :           979254
 
         vs.                           :
 
                                       :    A R B I T R A T I O N
 
                                       :
 
         CITY OF AMES,                 :      D E C I S I O N
 
                                       :
 
              Employer,                :
 
              Self-Insured,            :
 
              Defendant.               :
 
         ___________________________________________________________
 
         
 
                                   introduction
 
         
 
              This is a proceeding in arbitration filed by Clint Morrison, 
 
         claimant, against the City of Ames, employer and self-insured 
 
         defendant for benefits as a result of an injury which occurred on 
 
         September 23, 1986.  Claimant was represented by Dennis L. 
 
         Hanssen.  Defendant was represented by Harry W. Dahl.  A hearing 
 
         was held in Des Moines, Iowa, on November 9, 1989, and the case 
 
         was fully submitted at the close of the hearing.  The record con
 
         sists of the testimony of Clint Morrison, claimant; Clark 
 
         Borland, vocational rehabilitation consultant; Mary Haselton, 
 
         claim service branch manager; Margaret Cecelia Blaskovich, voca
 
         tional rehabilitation consultant; and joint exhibits 1 through 
 
         19.  The deputy ordered a transcript of the proceedings.  Both 
 
         attorneys submitted outstanding posthearing briefs.
 
         
 
                               preliminary matters
 
         
 
              Defendant filed a motion to reopen the record on February 
 
         20, 1991.  The motion was resisted on February 21, 1991, by 
 
         claimant.  The motion to reopen the record was denied by the 
 
         deputy on February 27, 1991, for the reason that no evidence 
 
         shall be taken after the hearing and because once a case is fully 
 
         submitted the proper method to present new evidence is a 
 
         review-reopening proceeding after the fully submitted case has 
 
         been decided.
 
         
 
              After the ruling on February 27, 1991, Mr. Jon-Scott 
 
         Johnson, risk manager for employer, wrote a letter to the deputy 
 
         on March 13, 1991, which constitutes an ex parte communication in 
 
         violation of Iowa Code section 17A.17(2).  Claimant's counsel 
 
         protested this ex parte communication by letter dated March 26, 
 
         1991, and suggested an appropriate sanction or censure was 
 
         warranted in this case.  It is the determination of the deputy 
 
         that no sanction or censure against the defendant will be 
 
         ordered.
 
         
 
              As a result of the two foregoing letters, defendant's coun
 
         sel wrote to the deputy on March 29, 1991, suggesting that the 
 
         deputy recuse himself from deciding this case.  It is the deter
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         mination of the deputy at this time that he will not recuse him
 
         self from the determination of the issues in this case.  Defen
 
         dant should not be allowed to make ex parte communication and 
 
         then ask the deputy to recuse himself based on defendant's own 
 
         misconduct.
 
         
 
              At the hearing, claimant moved to amend the petition to 
 
         conform to the proof and by way of alternative pleading, include 
 
         an injury incident which occurred on September 27, 1986 and 
 
         another injury incident which occurred on October 26, 1986, in 
 
         addition of the injury date of September 23, 1986, shown on the 
 
         original notice and petition.  On all three of these dates 
 
         claimant reported to employer that he injured his back while 
 
         lifting a patient in three different lifting incidents.  (exhibit 
 
         1, pages 47, 52 & 55; ex. 7, pp. 1-3)  Claimant maintained that 
 
         defendant had treated the latter two incidents as a continuation 
 
         of the first incident and had paid all medical benefits, healing 
 
         period benefits, and permanent partial disability benefits based 
 
         on the injury date of September 23, 1986.  (transcript p. 13)  
 
         Defendant resisted the motion on the ground that it was not 
 
         timely because the latter two incident dates were barred by the 
 
         two year statute of limitations.  Defendant also asserted there 
 
         was no mutual mistake of fact and that granting the motion would 
 
         change the issues in the case which defendant was not prepared to 
 
         defend.  (tr. pp. 4-6, 10; defendant's brief pp. 1 & 2)  Defen
 
         dant did notify claimant by interrogatory 21, filed on March 15, 
 
         1989, that "claimant had a new injury on October 26, 1986, which 
 
         is now barred by the statute of limitations."  (ex. 4, p. 23)  
 
         The real significance of the statute of limitations defense first 
 
         comes to light in the evidence in the deposition of Mark 
 
         Brodersen, M.D., an orthopedic surgeon, and the sole treating 
 
         physician, in his deposition given on October 31, 1989, just nine 
 
         days prior to hearing.  At that time, Dr. Brodersen testified, 
 
         "My opinion would be that the episode in which the disk ruptured 
 
         was probably on October 26th or so. . . . and that this was a 
 
         series of a great progression of the problem."  (ex. 17, p. 17)  
 
         Dr. Brodersen went on to explain that the disc probably tore as a 
 
         result of the lifting incident of September 23, 1986, then devel
 
         oped a bulge as a result of the September 27, 1986, lifting 
 
         incident and finally herniated as a result of the October 26, 
 
         1986, lifting incident (ex. 17, pp. 17-18).  
 
         
 
              Mary Haselton, the branch manager for Gallagher-Bassett 
 
         Services, Inc., the claim handler for defendant, testified that 
 
         Linda Van Natta was the responsible claim representative at the 
 
         time of the injury(s).  Haselton took over the file in May of 
 
         1989 (tr. pp. 171-173).  Haselton further testified:
 
         
 
                 A.  The file was set up with the injury date of 
 
              September 23, '86, and that was the only injury date 
 
              listed on the file.
 
         
 
                 ....
 
         
 
                 A.  There was some mention of some other lifting 
 
              incidents, yes.
 
         
 
                 ....
 
         
 
                 A.  The file was set up as a September 23, 1986, 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
              file, and there was really no notation made by the 
 
              other adjustors as far as what their intentions were 
 
              for the handling.
 
         
 
         (transcript page 173)
 
         
 
              The witness added that she had just one claim file for these 
 
         injury dates.  (tr. p. 174).  This colloquy then transpired 
 
         between claimant's counsel and Haselton:
 
         
 
                 Q.  Would it be correct that the medical bills that 
 
              were incurred for September 23, 1986, September 27, 
 
              1986, and October 26, 1986, were all paid from the file 
 
              that was set up for the September 23, '86, incident?
 
         
 
                 A.  They were placed in that file, and paid under 
 
              that claim number that went with that file.
 
         
 
                 Q.  Is it also correct that all time off work for 
 
              the September 27, 1986, incident and for the October 
 
              26, 1986, incident following those two incidents, were 
 
              paid as part of the September 23, 1986?
 
         
 
                 A.  Disability benefits.  Any benefits that were 
 
              paid were paid under that claim file.
 
         
 
         (transcript page 174)
 
         
 
              Thus, if it was not a mutual mistake of fact then it would 
 
         appear that the defendant voluntarily, knowingly and consciously 
 
         (if not intentionally) chose to treat all three lifting incidents 
 
         as one claim transaction.
 
         
 
              Technical forms of pleading have been abolished.  (Iowa Rule 
 
         of Civil Procedure 67).  Pleadings can be corrected or recast.  
 
         (Iowa R. Civ. P. 81).  Leave to amend, including leave to amend 
 
         to conform to the proof, shall be freely given when justice so 
 
         requires.  (Iowa R. Civ. P. 88)  Supplemental pleadings are 
 
         allowed even though the original pleading is defective in its 
 
         statement of claim for relief or defense.  (Iowa R. Civ. P. 90)  
 
         Amendments to conform the pleadings to the evidence can be per
 
         mitted.  (Iowa R. Civ. P. 106)  The Rules of Civil Procedure 
 
         require only that fair notice of a claim be given.  There is no 
 
         longer a strict requirement that a specific cause of action be 
 
         pleaded.  Parties are allowed to plead in the alternative.  Iowa 
 
         R. Civ. P. 69b.  Shill v. Careage Corp., 353 N.W.2d 416 (Iowa 
 
         1984).  The key to pleading in an administrative matter is noth
 
         ing more than or less than the opportunity to prepare and defend.  
 
         Hoenig v. Mason & Hanger, Inc., 162 N.W.2d 188, 192 (Iowa 1968).
 
         
 
              Furthermore, workers' compensation practice does not require 
 
         the parties to observe technical rules of pleading.  Alm v. 
 
         Morris Barick Cattle Co., 240 Iowa 1174, 1177 38 N.W.2d 161, 163 
 
         (1949); Cross v. Hermanson Brothers, 235 Iowa 739 16 N.W.2d 616 
 
         (1944).  Moreover, an application for arbitration is not a formal 
 
         pleading subject to technical rules of pleading.  There is no 
 
         requirement for the same conformity to proof to pleading as an 
 
         ordinary actions.  Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 373 112 N.W.2d 299 (1961).  An arbitration petition may 
 
         state the claim in a general manner.  Technical rules are not 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         observed and defendant need only be generally informed as to the 
 
         basic material facts upon which the employee relies as a basis 
 
         for compensation.  Iowa Workers' Compensation Law and Practice, 
 
         Lawyer and Higgs, Section 21-5.  This major Iowa workers' compen
 
         sation textbook further states that the key to pleading in an 
 
         administrative process is nothing more nor less than the opportu
 
         nity to prepare and defend.  The employer is to be offered a sub
 
         stantive right to be at least generally informed as to the basic 
 
         material facts upon which the employee relies as a basis for 
 
         compensation.  
 
         
 
              Based on the testimony of Haselton and the evidence submit
 
         ted by both claimant and defendant it is determined that both 
 
         parties were fully appraised that all issues about all three 
 
         injury incidents were to be determined by the decision in this 
 
         case.  Employer did not establish that it was misled to its prej
 
         udice in preparing or maintaining its defense of the issues in 
 
         this case.  Yeager, 253 Iowa 369, 373 112 N.W.2d 299.  The joint 
 
         exhibits include the evidence about all three injuries involved.  
 
         Moreover, defendant did not make a motion for continuance based 
 
         on the grounds of prejudice or inability to prepare or defend 
 
         against all of the issues claimant has requested to be determined 
 
         in this decision (Iowa R. Civ. P. 106).
 
         
 
              The industrial commissioner and deputies are required to 
 
         make decisions based on the facts presented even if they are 
 
         different or contrary to the theory pled.  Johnson v. Geo. A. 
 
         Hormel & Co., file numbers 782796 & 792733 (Appeal Decision 
 
         1988); McCoy v. Donaldson Company, Inc., IAWC Decisions of the 
 
         Iowa Industrial Commissioner 400 (1989); Shank v. Mercy Hospital 
 
         Medical Center, file number 719627 (Appeal Decision 1989).  Any 
 
         variance between pleading and proof is immaterial unless it mis
 
         leads the defendant to his prejudice.  Coghlan v. Quinn Wire & 
 
         Iron Works, 164 N.W.2d 848 (Iowa 1969); Yeager, 253 Iowa 369, 373 
 
         112 N.W.2d 299; Strauss v. Bil Mar Foods, File No. 833243, 
 
         (Arbitration Decision 1991).
 
         
 
              Wherefore, based on the foregoing precedents, it is now 
 
         determined that it is not necessary to grant or deny the motion 
 
         to amend the petition to conform to the proof because it is now 
 
         determined that employer was fairly put on notice of the basic 
 
         facts of this case with respect to all three alleged injury inci
 
         dents.  Employer treated all three injury incidents as one trans
 
         action, and had ample opportunity to prepare and defend all of 
 
         the issues in this case.  Employer was not prejudiced by the dis
 
         closure on October 31, 1989, that the permanent disability in 
 
         this case, in the opinion of the treating physician, might have 
 
         been caused in the lifting incident on October 26, 1986.
 
         
 
              Furthermore, if defendant first discovered that the incident 
 
         of October 26, 1986, was the cause of the permanent disability 
 
         for the first time on October 31, 1989, then claimant also 
 
         discovered it at the same time and may be entitled to the 
 
         discovery rule.
 
         
 
              Moreover, since employer made payments on all three 
 
         injuries, the two-year statute of limitations would not apply, 
 
         but rather, the three-year statute of limitations from the date 
 
         of the last payment of weekly compensation benefits would apply 
 
         and extend the filing period to prevent the running of the 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         statute of limitations for the latter two injuries.  The exact 
 
         date cannot be determined with certainty for the reason that 
 
         employer did not file any form 2's or form 2A's, claim activity 
 
         reports, as required by the rules of the industrial commissioner 
 
         to show the payments made to claimant prior to hearing.  Rule 343 
 
         IAC 3.1.
 
         
 
              In addition, a search of the industrial commissioner's files 
 
         did not provide any evidence that separate reports of injury were 
 
         filed for the lifting incident injuries on September 27, 1986 and 
 
         October 26, 1986, which confirms the fact that defendant treated 
 
         this as one claim transaction rather than three separate and 
 
         distinct injuries.
 
         
 
              Defendant knew of three separate injuries and made three 
 
         separate internal accident reports, but failed to file three 
 
         separate reports of injury as required by the workers' compensa
 
         tion law (Iowa Code section 86.11).
 
         
 
                                      issues
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether claimant is entitled to temporary disability bene
 
         fits, and if so, the nature and extent of benefits to which he is 
 
         entitled.
 
         
 
              Whether the injury was the cause of permanent disability.
 
         
 
              Whether claimant is entitled to permanent disability bene
 
         fits, and if so, the extent of benefits to which he is entitled.
 
         
 
              Whether claimant is entitled to penalty benefits under Iowa 
 
         Code section 86.13(4).
 
         
 
                                 findings of fact
 
         
 
                               temporary disability
 
         
 
              It is determined that claimant is not entitled to any tempo
 
         rary disability benefits for the injury arising out of the lift
 
         ing incident on September 23, 1986, for the reason that claimant 
 
         only lost three days from work (ex. 1, p. 14; ex. 1, p. 55; ex. 
 
         7, p. 1).  The workers' compensation law provides, "compensation 
 
         shall begin on the fourth day of disability after the injury."  
 
         Iowa Code section 85.32(1).  
 
         
 
              With respect to the lifting incident which occurred on 
 
         September 27, 1986, it is determined that claimant is entitled to 
 
         2.571 weeks of temporary disability benefits for the period from 
 
         September 28, 1986 through October 15, 1986.  Timothy C. Lowry, 
 
         M.D., saw claimant in the emergency room on September 27, 1986, 
 
         and ordered claimant to stay off work and to stay in bed for five 
 
         days (ex. 1, pp. 53 & 54).  Claimant was off work from September 
 
         28, 1986 through October 15, 1986, (ex. 1, p. 55; ex. 7, p. 2) 
 
         and claims benefits for that period of time (ex. 4, p. 20; ex. 
 
         10, p. 1; Claimant's brief p. 4).
 
         
 
              With respect to the lifting incident which occurred on 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         October 26, 1986, it is determined that claimant is entitled to 
 
         49.571 weeks of temporary disability benefits for the period from 
 
         October 26, 1986 through October 7, 1987.  Claimant was taken off 
 
         work on the date of this lifting incident, October 26, 1986, (ex. 
 
         1, p. 47; ex. 7, p. 3), and continued to be off work while he 
 
         treated with Dr. Brodersen (ex. 1, pp. 18-20).
 
         
 
              Claimant was not able to return to his same employment nor 
 
         was he able to return to substantially similar employment (ex. 1, 
 
         p. 15).  Therefore, the healing period ended when Dr. Brodersen 
 
         gave claimant a permanent impairment rating on October 7, 1987  
 
         (ex. 1, p. 17).  Dr. Brodersen testified that when he saw 
 
         claimant in October of 1987 he determined that claimant's condi
 
         tion was stable at that time and claimant had reached the point 
 
         where he would not expect substantial improvement or deteriora
 
         tion (ex. 17, pp. 24 & 25).  Healing period generally terminates 
 
         at the time that the attending physician determines that the 
 
         employee has recovered as far as possible from the effects of the 
 
         injury.  Armstrong Tire & Rubber v. Kubli, Iowa App. 312 N.W.2d 
 
         60, 65 (Iowa 1981).  Stated another way, it is only at the point 
 
         at which a permanent disability can be determined that a perma
 
         nent disability award can be made.  Until such time, healing 
 
         period benefits are awarded to the injured worker.  Thomas v. 
 
         Williams Knudson & Son, Inc., 349 N.W.2d 124, 126 (Iowa App. 
 
         1984).  Iowa Code section 85.34(1).
 
         
 
                                        
 
         
 
                      causal connection-permanent disability
 
         
 
              It is determined that the injuries of September 23, 1986; 
 
         September 27, 1986 and October 26, 1986, were the cause of perma
 
         nent disability.
 
         
 
              On September 23, 1986, claimant injured his back lifting a 
 
         fireman who had collapsed during a physical agility test.  On 
 
         September 27, 1986, he injured his back lifting a woman onto an 
 
         ambulance cot.  On October 26, 1986, he injured his back while 
 
         attempting to lift a patient from a wheelchair onto an examina
 
         tion table in the emergency room (tr. pp. 69-76).
 
         
 
              Claimant did not believe that he had completely recovered 
 
         from the injury of September 23, 1986, before he was injured on 
 
         September 27, 1986, because he still had continuing discomfort in 
 
         his back and leg in the interval between the two injuries (tr. p. 
 
         74).
 
         
 
              Again, after he returned to work on October 16, 1986, after 
 
         the second injury, and before the third injury on October 26, 
 
         1986, claimant continued to have pain in his back and pain radi
 
         ating to his left buttock (tr. pp. 77 & 78). 
 
         
 
              This dialogue transpired between claimant's counsel and Dr. 
 
         Brodersen at the time of his deposition on October 31, 1989:
 
         
 
                 Q.  Would it be correct that the first incident that 
 
              he reported on September 23rd of 1986 set him up for 
 
              the subsequent incidents that occurred on September 
 
              27th and October 26th of 1986 while lifting patients?
 
         
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
                 A.  Probably.
 
         
 
                 Q.  Based upon the history that was given to you by 
 
              Mr. Morrison, do you have an opinion within a 
 
              reasonable degree of medical certainty as to whether or 
 
              not the treatment and surgeries performed by you are 
 
              causally connected to the injuries mentioned by Mr. 
 
              Morrison?
 
         
 
                 A.  Yes, I have an opinion.
 
         
 
                 Q.  What is your opinion?
 
         
 
                 A.  I believe that the injuries that were sustained 
 
              by him resulted in the ruptured disk which then was 
 
              treated by me surgically.
 
         
 
         (joint exhibit 17, pages 33 and 34)
 
         
 
              On July 19, 1989, Dr. Brodersen wrote that claimant contin
 
         ued to have pain and progressive loss in the disc space height at 
 
         the level of his lumbar laminectomy (ex. 1, p. 2).  In his depo
 
         sition Dr. Brodersen was asked:
 
         
 
                 Q.  The disk collapse that you noticed with x-rays, 
 
              is that a complication that results from the surgery or 
 
              part of the sequelae that follows surgery?
 
         
 
                 A.  It would be a sequela of the surgery, yes.
 
         
 
         (joint exhibit 17, page 33)
 
         
 
              Thus, it is determined that although the injury of October 
 
         26, 1986, was the primary cause of claimant's permanent disabil
 
         ity, nevertheless, the injuries of September 23, 1986 and 
 
         September 27, 1986, also contributed to claimant's permanent 
 
         disability.
 
         
 
                         entitlement-permanent disability
 
         
 
              It is determined that claimant is entitled to 275 weeks of 
 
         permanent partial disability benefits based upon a 55 percent 
 
         industrial disability to the body as a whole.
 
         
 
              The parties stipulated that the type of permanent disabil
 
         ity, if the injury was found to be a cause of permanent disabil
 
         ity, was industrial disability to the body as a whole.
 
         
 
              On October 7, 1987, Dr. Brodersen assessed a 12 percent 
 
         permanent impairment rating.  He stated:
 
         
 
              At this point in time I feel that on the basis of the 
 
              limitation of motion previously described that he has a 
 
              7% impairment of the person as a whole and on the basis 
 
              of surgery he has a 5% impairment.  This would be a 
 
              total of a 12% impairment of the person as a whole at 
 
              the present time.
 
         (joint exhibit 1, page 17)
 
         
 
              Dr. Brodersen stated that he used the Guides to Evaluation 
 

 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
         of Permanent Impairment, published by the American Medical 
 
         Association, to determine his permanent impairment rating and 
 
         gave a detailed explanation of how he arrived at 12 percent (ex. 
 
         17, pp. 25 & 26; ex. 1, p. 6A).
 
         
 
              In December of 1988, claimant returned to Dr. Brodersen with 
 
         numbness and pain in his right leg, and pain in his back and his 
 
         left leg.  His left leg was tired and heavy and felt like it 
 
         lacked some coordination.  Claimant described other complaints to 
 
         both legs.  The doctor stated that he thought claimant was having 
 
         a mechanical type of problem.  An x-ray disclosed that the disk 
 
         space had started to collapse.  Because of the lack of a pad in 
 
         between the vertebrae, there was some rubbing of those bones 
 
         together causing irritation down in the back and the leg (ex. 17, 
 
         p. 26).  Exercises and a back brace had provided some relief on 
 
         March 15, 1989 (ex. 17, p. 28).  
 
         
 
              On June 7, 1989, claimant complained of flare-ups of back 
 
         pain activily related to raking to his lawn, leaning over to bag 
 
         grass, and carrying his book bags at school (ex. 17, p. 29).  Dr. 
 
         Brodersen put claimant in a body cast from July 5, 1989 to July 
 
         26, 1989.  This relieved his back pain and leg pain.  Dr. 
 
         Brodersen then gave claimant the option of either having a body 
 
         brace custom made to fit him like the body cast which he could 
 
         take off and put on or to have a back fusion.  Claimant chose the 
 
         custom made, form fitting back brace.  However, claimant's wife 
 
         told Dr. Brodersen that as soon as he came out of the back brace 
 
         his pain returned and he was just as bad as he was before he was 
 
         in the brace.  Dr. Brodersen believed that claimant had seen the 
 
         brace maker to have a brace fabricated to do the same thing that 
 
         the body cast did for him and claimant had not contacted him 
 
         requesting the fusion (ex. 17, pp. 30 & 31).
 
         
 
              On June 7, 1989 Dr. Brodersen increased his permanent 
 
         physical impairment rating to 19 percent because of increased 
 
         restriction of motion (ex. 17, p. 31).  The doctor's calculations 
 
         appear on his notes for June 7, 1989 as follows: flexion 7 per
 
         cent, extension 1 percent, right side bending 1 percent, left 
 
         side bending 1 percent, right rotation 2 percent, left rotation 2 
 
         percent, total 14 percent.  To this the doctor added 5 percent 
 
         for the surgery making a total of 19 percent (ex. 1, pp. 4 & 5).
 
         
 
              Dr. Brodersen testified that the same restrictions applied 
 
         that he issued on October 23, 1987 (ex. 17, p. 31; ex. 1, p. 15). 
 
         The doctor stated claimant should not lift heavy objects over 50 
 
         pounds in weight.  He restricted claimant from repetitive lifting 
 
         of objects or repetitive bending or twisting.  He said claimant 
 
         would benefit from a job where he could change positions occa
 
         sionally from standing to sitting or vice versa.  He permitted 
 
         occasional lifting of light objects and occasional bending and 
 
         twisting, but prohibited them on a regular basis.  Dr. Brodersen 
 
         foreclosed claimant from returning to his former employment as a 
 
         paramedic in these words, "I would ordinarily not recommend that 
 
         he return to a job situation such as he was involved in before as 
 
         a paramedic, as this involves heavy lifting and awkward 
 
         positions."  (ex. 1, p. 15).
 
         
 
              In addition to the many and varied technical medical proce
 
         dures, the educational and experience requirement, and the 
 
         licensing requirement, claimant's job description as a paramedic 
 

 
         
 
         Page   9
 
         
 
         
 
         
 
         
 
         included the following:
 
         
 
              Working Conditions/Physical Demands:  Requires good 
 
              physical and mental health.  The environment includes 
 
              intermittent possible exposure to hazards, fumes, 
 
              extremes of temperature and inclement weather.  
 
              Physical effort involves frequent manhandling of heavy 
 
              equipment and people, frequent work in awkward 
 
              positions.
 
         
 
         (Jt ex. 6, p. 3)
 
         
 
              The mobile intensive care services physical agility test 
 
         administered on January 27, 1982 showed that among other things 
 
         claimant was required to carry 200 pounds on a scoop stretcher 
 
         using a partner down the stairs, drag 200 pounds for a distance 
 
         of 50 feet, and lift 200 pounds on a standard stretcher into an 
 
         ambulance and back out onto the ground again (ex. 6, p. 7).
 
         
 
              Thus, it is clear that claimant is foreclosed from perform
 
         ing a highly skilled and well paid duties of a paramedic.  
 
         Claimant's service record showed that at the time of the injury 
 
         he was earning $10.99 per hour.  A merit increase on January 4, 
 
         1987, brought his hourly wage to $11.40 per hour and a cost of 
 
         living on January 5, 1987, brought his hourly wage to $11.86 per 
 
         hour (ex. 6, p. 4).
 
         
 
              Claimant's employment evaluations indicate that claimant was 
 
         an exemplary employee.  This deputy would classify them between 
 
         excellent and outstanding evaluations (ex. 6, pp. 35-67; cl. br. 
 
         pp. 2 & 3).  On November 13, 1986, claimant received a glowing 
 
         evaluation from his superior which could be synopsized with the 
 
         last two sentences of the report:
 
         
 
              Clint quietly goes about his job performing profession
 
              ally according to his own rigorous perfectionist stan
 
              dards.  While he does not draw attention to his ef
 
              forts, they are recognized and appreciated.  He is a 
 
              fine paramedic and a model employee.
 
         
 
         (joint exhibit 6, page 43; claimant's brief p. 5)
 
         
 
              Claimant had excellent references from prior employers when 
 
         he started this job as a full-time paramedic on February 1, 1982  
 
         (ex. 6, p. 4, 71, 74).  Claimant passed a preemployment physical 
 
         examination on March 23, 1982, (ex. 6, p. 68; tr. p. 67), and he 
 
         told Dr. Brodersen, his only treating physician, that he did not 
 
         have any previous problems with his back (ex. 17, p. 11).  Nor is 
 
         there any evidence in the record elsewhere that claimant had any 
 
         preexisting back problems.
 
         
 
              A brief summary of claimant's medical treatment is as 
 
         follows: A CT scan on November 17, 1986, disclosed a herniation 
 
         of the L5-S1 nucleus pulposus on the left side (ex. 1, pp. 12, 
 
         46).  An epideral steroid injection performed on December 3, 
 
         1986, worsened claimant's pain.  An epideral steroid injection on 
 
         December 10, 1986, was ineffective (ex. 1, pp. 42 & 44).  
 
         Claimant was hospitalized on December 29, 1986, for gravity 
 
         lumbar traction and this too, increased his complaints of 
 
         numbness and pain (ex. 1, p. 40).  A myelogram on January 10, 
 

 
         
 
         Page  10
 
         
 
         
 
         
 
         
 
         1986, disclosed a bulging disc at L5-S1.  Home gravity lumbar 
 
         traction was not effective (ex. 1, pp. 38, 40 & 41).  A lumbar 
 
         laminectomy and disc excision was performed on January 13, 1987 
 
         (ex. 1, pp. 36 & 37).  Claimant's condition worsened and on May 
 
         27, 1987, Dr. Brodersen recommended a myelogram, a laminectomy 
 
         and that consideration be given to a fusion (ex. 1, p. 8).  The 
 
         repeat laminectomy was performed at the same level of L5-S1 on 
 
         the left again on June 5, 1987 (ex. 1, pp. 28-31).  Subsequent to 
 
         this, claimant experienced problems with his back and legs for 
 
         which he performed exercises and wore a back brace as well as the 
 
         body cast in July of 1989.  At the time of the hearing he was 
 
         wearing a custom made body brace that was removeable as an 
 
         optional method of treatment to a spinal fusion. 
 
         
 
              Claimant was evaluated by Peter D. Wirtz, M.D., a board 
 
         certified orthopedic surgeon, on October 25, 1989 (ex. 18, pp. 
 
         1-6).  Dr. Wirtz gave a deposition on October 30, 1989, in which 
 
         he stated:
 
         
 
              A.  Based on his diagnosis of disk disease, one level, 
 
              surgery, one level, and residual neurologic in 
 
              correlation with that disk surgery, one level, he would 
 
              have an impairment of a body as a whole relating to 5 
 
              percent because of the laminectomy and 5 percent 
 
              because of the continued neurologic residuals resulting 
 
              in a 10 percent impairment of the body as a whole.
 
         
 
         (Joint Exhibit 18, page 9)
 
         
 
              With respect to restrictions, Dr. Wirtz stated:
 
         
 
              A.  Based on the fact that he has had disk surgery at 
 
              one level and a degenerate disk at that level, that 
 
              condition will relate to restrictions of back bending, 
 
              twisting, lifting, pushing and pulling at a weight 
 
              restriction between 20 and 50 pounds depending upon his 
 
              physiologic strength and dexterity.
 
         
 
         (Joint Exhibit 18, page 9 & 10).
 
         
 
              Claimant was wearing the rigid plastic back brace prescribed 
 
         by Dr. Brodersen at the time of Dr. Wirtz's examination.  
 
         Claimant felt it was effective only to a slight degree (ex. 18, 
 
         p. 10).  Dr. Wirtz said that claimant's complaints after the 
 
         second surgery were musculoskeletal strain or a temporary aggra
 
         vation of a condition that had resolved by the time of his exami
 
         nation (ex. 18, p. 11).  Dr. Wirtz agreed that claimant was fore
 
         closed from being a paramedic in these words, "In general there 
 
         would be a percentage of the work as a paramedic that would be 
 
         beyond his physiologic strength and dexterity.  If he had to 
 
         return without restrictions, then he would not be able to do that 
 
         work."  (ex. 18, p. 13).  Dr. Wirtz testified that he evaluates 
 
         many patients for permanent impairment (ex. 18, p. 14).  
 
         
 
              Clark Borland, testified that he is a 15-year employee of 
 
         the Iowa Department of Vocational Rehabilitation as a vocational 
 
         rehabilitation counselor (tr. pp. 31 & 32; ex. A).  He testified 
 
         that claimant was referred to him by Dr. Mark Brodersen in August 
 
         of 1987 (tr. pp. 31-33).  They discussed retraining as a physi
 
         cian's assistant, criminalist, computer engineer and in electron
 

 
         
 
         Page  11
 
         
 
         
 
         
 
         
 
         ics work.  After exploring these positions, including direct 
 
         placement and school training, claimant chose a four-year course 
 
         in the area of industrial education at Iowa State University.  
 
         Borland thought this was an appropriate decision (tr. pp. 34-38).  
 
         Rehabilitation at claimant's age and family status is expensive 
 
         because of the loss of income while attending college combined 
 
         with the added expenses of tuition, books, fees and transporta
 
         tion costs while attending college.  Academically claimant did 
 
         very well.  In his first semester in the fall of 1988 he had a 
 
         grade point average of 3.9 and his spring 1989 grade point 
 
         average was 3.3 (tr. p. 39).  
 
         
 
              Claimant was forced to terminate this educational endeavor 
 
         because of financial reasons and Borland was assisting him with 
 
         direct placement at the time of the hearing.  Borland testified 
 
         that he thought the industrial education course was appropriate 
 
         and other people within the Department of Vocational 
 
         Rehabilitation also thought so because they had approved 
 
         financial assistance for claimant for this program (tr. p. 41).  
 
         Borland believed that if claimant could develop the financial 
 
         resources he would still recommend the four-year course in 
 
         industrial education.  However, claimant was currently actively 
 
         looking for employment with Borland's assistance (tr. p. 52).  He 
 
         felt that claimant should have some advantage with a federal 
 
         employer because of his veteran's preference and federal 
 
         employers are obligated to hire the handicapped (tr. pp. 54-57).  
 
         
 
              Cecelia Blaskovich, a qualified rehabilitation counselor 
 
         with an 18-year background in the field (ex. A), testified that 
 
         she contacted claimant in May of 1988 in conjunction with her 
 
         employee Susan Kult at the office of claimant's attorney.  Defen
 
         dant did not employ Blaskovich until after claimant had been 
 
         admitted to Iowa State University on March 23, 1988 (ex. 3).  It 
 
         was claimant's preference at that time to go ahead with his 
 
         university work at Iowa State University (tr. pp. 178-186).  
 
         Blaskovich testified that her organization was not able to obtain 
 
         an authorization so that they could communicate with claimant 
 
         directly or to obtain information from Borland.  Blaskovich 
 
         acknowledged that she and Kult were instructed not to communicate 
 
         with claimant directly, but nevertheless, she did send him 
 
         several job lists on April 4, 1988; April 11, 1988' April 18, 
 
         1988; April 25, 1988; May 4, 1988; May 9, 1988; May 17, 1988; May 
 
         23, 1988.  They did not contact him on the phone or call him 
 
         personally (tr. pp. 205 & 206).  Blaskovich acknowledged that she 
 
         sent claimant jobs for which he was not qualified in the hope he 
 
         would contact the hospital and some other employment might be 
 
         found for him (tr. p. 209).  
 
         
 
              Claimant did, in fact, apply for three positions with 
 
         employer which were on Blaskovich's lists, (1) medical technolo
 
         gist, (2) medical laboratory technician, and (3) radiologic tech
 
         nologist and was turned down by employer for all three of these 
 
         positions because he did not meet the necessary qualifications 
 
         (ex. 6, pp. 10 & 13).  Nor did employer offer claimant any other 
 
         job within his qualifications as anticipated by Blaskovich.  
 
         
 
              Blaskovich questioned why claimant did not seek active 
 
         employment in the electronics field when he held a two-year 
 
         associate degree in electronics at the time he enrolled in Iowa 
 
         State University.  Borland felt that it was a field where 
 

 
         
 
         Page  12
 
         
 
         
 
         
 
         
 
         claimant's earlier education, which ended in 1980, would have to 
 
         be updated and furthermore, accommodations would have to be made 
 
         for claimant's medical restrictions in order to obtain a job in 
 
         electronics.  Claimant apparently chose the industrial education 
 
         course as a preference over actively seeking employment in the 
 
         electronics field as a matter of personal preference.  Blaskovich 
 
         noted that claimant made $8 an hour in this field in 1980 and 
 
         1981 (ex. 3, pp. 28 & 29).  
 
         
 
              Blaskovich was critical of claimant's enrollment in a 
 
         four-year course of industrial education stating that this plan 
 
         and goal was inappropriate and unrealistic.  It would not 
 
         guarantee claimant increased employability above his present 
 
         level of ability.  She found that occupations for which claimant 
 
         could qualify within his physical abilities were numerous (ex. 3, 
 
         p. 34).  Blaskovich pointed out that employer had offered 
 
         claimant a job from 11 p.m. to 7 a.m. in the EEG/EKG department 
 
         monitoring sleeping patients.  He performed this job for a short 
 
         time, but took a voluntary leave of absence on September 26, 
 
         1987, and voluntarily resigned from the position on November 6, 
 
         1987 (ex. 3, p. 36; ex. 6, pp. 4, 30, 31).  
 
         
 
              Claimant maintained that when Dr. Brodersen said he could 
 
         return to work light duty on April 15, 1987, there were a number 
 
         of jobs he could have done as a paramedic, such as, rotate drug 
 
         stocks and I.V. supply stocks, but the only employment he was 
 
         offered was performing polygraphic examinations on sleeping 
 
         patients in the EEG/EKG department (tr. pp. 82-84).  Claimant 
 
         stated that he did not actually perform the tests, but only 
 
         observed the patients and the nurse on duty actually performed 
 
         the tests.  Claimant said he quit the job after three or four 
 
         nights because he thought it was inappropriate (tr. p. 88).  He 
 
         thought it was numbingly skill-less (tr. p. 86).  He thought 
 
         there were jobs he could do which were more appropriate for his 
 
         skills and training, but he was refused employment in any of 
 
         these jobs.  Claimant testified that the only alternative 
 
         employer offered him other than observing sleeping patients on 
 
         the night shift was buffing floors and doing security rounds and 
 
         things like that (tr. p. 152).  There was evidence that claimant 
 
         quit the job because of the night hours which both he and his 
 
         wife did not like.  However, the stated reason for his resigna
 
         tion on the resignation form was "back injury" (ex. 6, p. 30).  
 
         
 
              Claimant testified that he was forced to quit Iowa State 
 
         University for financial reasons.  He was open to full and 
 
         part-time work, but could not find anything suitable due to 
 
         various conflicts.  Also, he felt it was more important to apply 
 
         himself to his school work than to work part-time.  He testified 
 
         that his attempts to obtain suitable employment were rejected by 
 
         the prospective employers, including one at employer's hospital 
 
         (tr. pp. 100-103).  He said he was working with Clark Borland to 
 
         find employment at the time of the hearing (tr. p. 105).
 
         
 
              Claimant acknowledged that he received a number of job lists 
 
         from Blaskovich (tr. p. 109), but many of the jobs were not 
 
         within his educational qualifications.  Some were beyond his 
 
         physical abilities and some only paid approximately one-half of 
 
         what he was earning at the time of his injury.  Many of the job 
 
         opportunities did not include a prospective salary.  Many of the 
 
         jobs were advertised at $4, $5 and $6 per hour and, in addition, 
 

 
         
 
         Page  13
 
         
 
         
 
         
 
         
 
         involved commuting as well (tr. pp. 110-118).  
 
         
 
              Claimant maintained that he resigned from employer in an 
 
         attempt to collect his termination benefits that had accumulated 
 
         which would enable him to pay off a number of his creditors (tr. 
 
         p. 129).  
 
         
 
              Claimant stated that the custom tailored body brace which he 
 
         wears makes it difficult to get in and out of a car, tie his 
 
         shoes, get up and down from a chair, walk, or vacuum, or mow the 
 
         lawn.  In addition, it accumulates heat.  It causes pressure on 
 
         his stomach which aggravates a preexisting condition of reflux 
 
         esophagitis.  He indicated he would return to college if he had 
 
         the money (tr. p. 133).  Claimant agreed with defendants' counsel 
 
         that he was looking for a career, rather than just a job that 
 
         would put some money in his pocket for right now and might not 
 
         last.  He added that if he didn't get a career very quickly, he 
 
         was going to take any job that he could get because he had 
 
         borrowed $12,000 from his mother (tr. p. 165).
 
         
 
              Claimant, born January 16, 1952, was 34 years old at the 
 
         time of the injury and 37 years old at the time of the hearing 
 
         and 39 years old at the time of this decision.  Claimant's indus
 
         trial disability is more severe because he was entering the peak 
 
         years of his earnings history at the time of this injury.  Thus, 
 
         the industrial disability is more severe than it would be for an 
 
         older or younger employee.  Becke v. Turner-Busch, Inc., 
 
         Thirty-fourth Biennial Report of the Industrial Commissioner 34 
 
         (Appeal Decision  1979); Walton v. B & H Tank Corp., II Iowa 
 
         Industrial Commissioner Report 426 (1981); McCoy v. Donaldson 
 
         Company, Inc., IAWC Decisions of the Iowa Industrial Commissioner 
 
         400 (1989).
 
         
 
              Claimant's industrial disability is also increased for the 
 
         reason that all of the many skilled medical procedures which 
 
         claimant was trained to perform as a paramedic, as well as his 
 
         certification and many physical and education requirements 
 
         invested in that occupation, have for the most part lost their 
 
         value since he is foreclosed from performing paramedic work.  
 
         Michael v. Harrison County, Thirty-fourth Biennial Report of the 
 
         Industrial Commissioner 218, 220 (Appeal Decision January 30, 
 
         1979); Rohrberg v. Griffin Pipe Products Co., I Iowa Industrial 
 
         Commissioner Report 282 (1984).  
 
         
 
              Retraining is one of the considerations in determining 
 
         industrial disability and claimant is clearly retrainable.  
 
         Conrad v. Marquette School, Inc., IV Iowa Industrial 
 
         Commissioner Report 74, 89 (1984).  
 
         
 
              It is true there are a number of employments for which 
 
         claimant qualifies, such as electronic work, and claimant did not 
 
         give any satisfactory explanation why he had not sought employ
 
         ment in this field.  Likewise, claimant's taking a medical leave 
 
         of absence from employer on September 26, 1987, and resigning 
 
         from the job completely on November 6, 1987, is not satisfacto
 
         rily explained.  It is difficult to understand why, if he had 
 
         financial problems, he would quit a job that provided some income 
 
         rather than elect to have no job at all.  There is no evidence as 
 
         to the amount of his termination benefits from his employer that 
 
         would justify quitting an employer who was providing some income 
 

 
         
 
         Page  14
 
         
 
         
 
         
 
         
 
         even though the employment provided was disagreeable to claimant.  
 
         At the same time, there is some indication, according to 
 
         claimant's testimony, that employer had not provided claimant 
 
         with employment for which he was best suited based upon his edu
 
         cation, training and certification as a paramedic.  
 
         
 
              It is difficult to determine the true extent of claimant's 
 
         disability because he has not attempted any kind of work and 
 
         appears that some limited work is possible. Schofield v. Iowa 
 
         Beef Processors, Inc., II Iowa Industrial Commissioner Report 
 
         334, 336 (1981).  Employers are responsible for a reduction in 
 
         earning capacity caused by the injury.  They are not responsible 
 
         for a reduction in actual earnings because the employee resists 
 
         returning to work.  Williams v. Firestone Tire and Rubber Co., 
 
         III Iowa Industrial Commissioner Report 279 (1982).  
 
         
 
              Claimant has a wide variety of skills and training that 
 
         provide a number of transferable skills and in turn would reduce 
 
         his industrial disability.  Claimant graduated from high school 
 
         in 1970.  He attended Scott Community College from 1970 to 1971 
 
         and received a diploma in auto mechanics.  He attended the Scott 
 
         Community College again from 1971 to 1972 and received a diploma 
 
         in auto body repair (tr. p. 59; ex. 6, p. 5).  Claimant served in 
 
         the United States Army from 1972 to 1974 and was trained as a 
 
         unit personnel specialist and received an honorable discharge 
 
         (tr. p. 60).  Claimant was then employed by the Dayco Corporation 
 
         from 1974 until 1978 as a part fabricator and a repairman of 
 
         pneumatic, hydraulic, electrical and mechanical equipment.  
 
         
 
              Claimant then attended the Marshalltown Community College 
 
         from 1978 to 1980 and received a degree of associate of arts and 
 
         science in electronics.  He was also employed by the college 
 
         earning $8 an hour repairing electrical equipment, supervising 
 
         the electronics lab, and giving lectures on lab procedures from 
 
         1980 to 1981.  While attending Marshalltown Community College he 
 
         attended night classes to become an emergency medical technician 
 
         (tr. p. 63).  He worked at the Marshalltown Area Community 
 
         Hospital as an ambulance attendant from 1980 until 1982 earning 
 
         $7 per hour.  While performing this job he also attended the 
 
         paramedic program at the University of Iowa and received his 
 
         paramedic certificate (tr. pp. 64-66).  He started to work for 
 
         employer on February 1, 1982, and worked there until he resigned 
 
         on November 6, 1987 (ex. 6, pp. 4-6, 8, 9, 11, 12, 28, 30, 31; 
 
         tr. pp. 61-69).  However, because of the restrictions imposed by 
 
         Dr. Brodersen and those recommended by Dr. Wirtz, many of these 
 
         employments and other employments are no longer available to 
 
         claimant.
 
         
 
              Claimant did not establish a strong motivation to obtain a 
 
         job and go work after this injury.  He did display his zeal for 
 
         higher education and his grades demonstrate a high degree of 
 
         success and application at that endeavor.  Irrespective of 
 
         claimant's possible lack of motivation to engage in actual wage 
 
         paying earnings after this injury, claimant is, nevertheless, 
 
         entitled to a rather substantial award of industrial disability.  
 
         He was permanently disabled at the peak years in his earnings 
 
         history, he received two lumbar laminectomies at the L5-S1 level 
 
         on the left.  He still encounters mechanical back instability 
 
         which requires either a body cast or a custom made brace, and is 
 
         threatened with a possible spinal fusion in the future.  This 
 

 
         
 
         Page  15
 
         
 
         
 
         
 
         
 
         award includes nothing for a possible spinal fusion because that 
 
         is only speculation at this time.  Stewart v. Crouse Cartage, 
 
         file number 738644 (Appeal Decision filed February 20, 1987); 
 
         Umpress v. Armstrong Rubber Co., file number 723184 (Appeal 
 
         Decision filed August 27, 1987).  
 
         
 
              Claimant's treating physician assessed a 19 percent perma
 
         nent physical impairment to his body as a whole.  He is re
 
         stricted from lifting more than 50 pounds and is foreclosed from 
 
         his former occupation which was both interesting to him and remu
 
         nerative.  Claimant testified that his paychecks showed that he 
 
         was earning $11.86 per hour when he resigned (tr. p. 87) and this 
 
         is verified by his service record (ex. 6, p. 4).  If claimant was 
 
         earning $11 or $12 per hour for employer and is now confined to 
 
         earn approximately $5 or $6 per hour, this constitutes an actual 
 
         wage loss of approximately 50 percent, even without taking into 
 
         consideration claimant's physical impairment of 19 percent and 
 
         his reduced marketability in the competitive employment market 
 
         because he has sustained a serious permanent back injury and for 
 
         which he prosecuted a workers' compensation claim.  Claimant did 
 
         investigae employment paying $7.50 per hour, but did not obtain 
 
         it.
 
         
 
              Wherefore, based upon (1) the foregoing factors; (2) all of 
 
         the factors used to determined industrial disability, Peterson v. 
 
         Truck Haven Cafe, Inc., vol. 1, no. 3 State of Iowa Industrial 
 
         Commissioner Decisions 654, 658 (Appeal Decision February 28, 
 
         1985); Christensen v. Hagen, Inc., vol. I, no. 3, State of Iowa 
 
         Industrial Commissioner Decisions 529 (Appeal Decision March 26, 
 
         1985); and (3) applying agency expertise [Iowa Administrative 
 
         Procedure Act 17A.14(5)]; it is determined that claimant has 
 
         sustained a 55 percent industrial disability to the body as a 
 
         whole.
 
         
 
                                 penalty benefits
 
         
 
              It is determined that claimant is entitled to 50 percent 
 
         penalty benefits for 12 weeks for the period from October 30, 
 
         1987 to January 22, 1988.
 
         
 
              Claimant testified, "Then there was a period of four months 
 
         where they told me that the healing period had ended, according 
 
         to Dr. Broderson, and that there wouldn't be any money until a 
 
         settlement was made...I didn't receive anything at all." (tr. p. 
 
         91).
 
         
 
              Haselton testified that the printout sheet shows a payment, 
 
         "...made on October 30, 1987, and then no payments at all of any 
 
         kind made until January 22nd of 1988." (tr. p. 175).  Haselton 
 
         was asked:
 
         
 
              Q.  Was there any indication in your file as to why 
 
              those payments were not made during that period of 
 
              time?
 
         
 
              A.  To be honest, the documentation in the file wasn't 
 
              very good at all.
 
         
 
         (transcript page 175)
 
         
 

 
         
 
         Page  16
 
         
 
         
 
         
 
         
 
              This penalty is for the delay in the commencement of perma
 
         nent partial disability benefits.  Actually, claimant might be 
 
         entitled to penalty benefits from October 7, 1987, but this can
 
         not be determined from the record because defendants did not file 
 
         claim activity reports for temporary disability benefits that 
 
         they paid prior to hearing as required by rule 343 IAC 3.1.  How
 
         ever, the burden of proof is on claimant to prove his case.  The 
 
         best evidence of claimant's entitlement presented by claimant is 
 
         the testimony of Haselton quoted above which gives us this period 
 
         of time.
 
         
 
              Claimant also is entitled to 50 percent penalty benefits for 
 
         an additional 40 weeks, because of the underpayment of permanent 
 
         partial disability benefits.  Defendants paid only the impairment 
 
         rating of Dr. Brodersen in the amount of 12 percent for a total 
 
         of 60 weeks of permanent partial disability benefits (ex. 16, p. 
 
         1).  Haselton was asked why benefits were terminated at the end 
 
         of 60 weeks and she replied, "It was my understanding that it was 
 
         the last payment in connection with a rating given by the 
 
         doctor." (tr. p. 177).
 
         
 
              It is the determination of this deputy that the minimum per
 
         manent partial disability benefits payment should have been 100 
 
         weeks of benefits based upon a 20 percent industrial disability 
 
         to the body as a whole for a 34-year old claimant with two lumbar 
 
         laminectomies with a resulting mechanically unstable back after 
 
         his surgeries who was totally foreclosed from performing his 
 
         highly skilled paramedic job which paid almost $12 per hour.  Dr. 
 
         Brodersen was the sole treating physician and the authorized 
 
         physician by defendants.  His rating was not disputed and no 
 
         other evaluation was requested from any other doctor by 
 
         defendants.
 
         
 
              Claimant testified:
 
         
 
              Q.  When your workers' compensation benefits terminated 
 
              in October of '87, were you given any notification that 
 
              they were going to terminate?
 
         
 
              A.  Yes.  I was talking on the phone to Linda Van 
 
              Natta.  She informed me that the doctor had decided to 
 
              assign me a healing period of three months, and at the 
 
              end of that healing period, the healing period checks 
 
              would stop.
 
         
 
              Q.  Did she indicate whether they would be commencing 
 
              from the partial disability at that time?
 
         
 
              A.  Never mentioned it, no. 
 
         
 
         (transcript page 94)
 
         
 
              Fifty percent of 12 weeks benefits at $293.95 is $1,763.70.  
 
         Fifty percent of 40 weeks benefits at the rate of $293.95 is 
 
         $5,879.  Total penalty benefits then amount to $7,642.70.
 
         
 
                                conclusions of law
 
         
 
              WHEREFORE, based upon the foregoing and following principles 
 
         of law, these conclusions of law are made:
 

 
         
 
         Page  17
 
         
 
         
 
         
 
         
 
         
 
              That claimant is entitled to 2.571 weeks of temporary 
 
         disability benefits for the period from September 28, 1986 
 
         through October 15, 1986 and 49.571 weeks of healing period 
 
         benefits from October 26, 1986 through October 7, 1987.  Iowa 
 
         Code section 85.34(1).
 
         
 
              That the injury was the cause of permanent disability.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); 
 
         Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945).
 
         
 
              That claimant has sustained a 55 percent industrial disabil
 
         ity to the body as a whole.  Diederich v. Tri-City R. Co., 219 
 
         Iowa 587, 593, 258 N.W. 899 (1935); Olson v. Goodyear Service 
 
         Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).
 
         
 
              That claimant is entitled to 275 weeks of permanent partial 
 
         disability benefits.  Iowa Code section 85.34(2)(u).
 
         
 
              That claimant is entitled to 50 percent penalty benefits for 
 
         the 12 weeks from October 30, 1986 to January 22, 1988 when 
 
         defendants terminated temporary disability benefits and failed to 
 
         commence permanent partial disability benefits without reasonable 
 
         or probable cause of excuse and an additional 50 percent penalty 
 
         benefits for 40 weeks for failure to pay reasonable industrial 
 
         disability benefits in excess of the impairment rating without 
 
         reasonable or probable cause of excuse.  Penalty benefits for the 
 

 
         
 
         Page  18
 
         
 
         
 
         
 
         
 
         first period total $1,763.70 and penalty benefits for the second 
 
         period total $5,879 and the total penalty benefits amount to 
 
         $7,642.70.  Iowa Code section 86.13.
 
         
 
                                      order
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant two point five seven one 
 
         (2.571) weeks of temporary disability benefits at the rate of two 
 
         hundred ninety-three and 95/100 dollars ($293.95) in the total 
 
         amount of seven hundred fifty-five and 75/100 dollars ($755.75) 
 
         commencing on September 28, 1986 through October 15, 1986.
 
         
 
              That defendants pay to claimant forty-nine point five seven 
 
         one (49.571) weeks of healing period benefits at the rate of two 
 
         hundred ninety-three and 95/100 dollars ($293.95) in the total 
 
         amount of fourteen thousand five hundred seventy-one and 40/100 
 
         dollars ($14,571.40) for the period from October 26, 1986 through 
 
         October 7, 1987, commencing on October 26, 1986.
 
         
 
              That defendants pay to claimant two hundred seventy-five 
 
         (275) weeks of permanent partial disability benefits at the rate 
 
         of two hundred ninety-three and 95/100 dollars ($293.95) in the 
 
         total amount of eighty-thousand eight hundred thirty-six and 
 
         25/100 dollars ($80,836.25) commencing on October 8, 1987.
 
         
 
              That defendants pay claimant penalty benefits in the amount 
 
         of seven thousand six hundred forty-two and 70/100 dollars 
 
         ($7,642.70) as calculated and shown above.
 
         
 
              That defendants are entitled to a credit for one hundred six 
 
         point eight five seven (106.857) weeks of workers' compensation 
 
         benefits paid to claimant prior to hearing at the rate of two 
 
         hundred eighty and 11/100 dollars ($280.11) per week in the total 
 
         amount of twenty-nine thousand nine hundred thirty-one and 71/100 
 
         dollars ($29,931.71) plus another one hundred eighty-four and 
 
         75/100 dollars ($184.75) in temporary partial disability benefits 
 
         as stipulated to by the parties in the prehearing report.
 
         
 
              That all accrued benefits are to be paid in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30. 
 
         
 
              That the costs of this action, including the cost of the 
 
         attendance of the court reporter at hearing and the cost of the  
 
         transcript, are charged to defendant pursuant to rule 343 IAC 
 
         4.33.
 
         
 
              That defendant file first reports of injury for the injuries 
 
         that occurred on September 26, 1986 and October 26, 1986.
 
         
 
              That defendants file correct claim activity reports showing 
 
         the temporary disability benefits paid to claimant prior to 
 
         hearing and defendants file any other claim activity reports as 
 
         requested by this agency pursuant to rule 343 IAC 3.1.
 
         
 
              That separate files be opened for the injury of September 
 
         27, 1986 and October 26, 1986, for the first reports of injuries 
 

 
         
 
         Page  19
 
         
 
         
 
         
 
         
 
         that are to be filed for these two injuries.
 
         
 
              Signed and filed this ____ day of April, 1991.
 
         
 
         
 
         
 
         
 
                                       ______________________________
 
                                       WALTER R. McMANUS, JR.
 
                                       DEPUTY INDUSTRIAL COMMISSIONER    
 
         
 
         Copies to:
 
         
 
         Mr. Dennis Hanssen
 
         Attorney at Law
 
         2700 Grand Ave STE 111
 
         Des Moines, Iowa  50312
 
         
 
         Mr. Harry Dahl
 
         Attorney at Law
 
         974 - 73rd STE 16
 
         Des Moines, Iowa  50312
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DEBBIE TASLER,                :
 
                                          :      File Nos. 843209
 
                 Claimant,                :                841036
 
                                          :                848406
 
            vs.                           :                888745
 
                                          :
 
            OSCAR MAYER FOODS CORP.,      :        A P P E A L
 
                                          :
 
                 Employer,                :      D E C I S I O N
 
                 Self-Insured,            :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            is affirmed and is adopted as the final agency action in 
 
            this case.
 
            In addition, the following applicable law is noted:
 
            A deputy may find a cumulative injury and establish a 
 
            cumulative injury date even though the claimant has relied 
 
            on a traumatic injury theory and a traumatic injury date in 
 
            his pleadings.  Johnson v. George A. Hormel & company, 
 
            Appeal Decision, June 21, 1988; McCoy v. Donaldson's, Inc., 
 
            Appeal Decision, April 28, 1989.
 
            Where a claimant with a cumulative injury chooses to retire 
 
            because of the injury, the last day of work is the date of 
 
            the injury.  Koehler v. Morrison, Lloyd and McConnel, 
 
            Arbitration Decision, February 28, 1990.
 
            Signed and filed this ______ day of April, 1990.
 
            
 
            
 
            
 
            
 
                                         _____________________________
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Robert E. McKinney
 
            Mr. Wayne H. McKinney, Jr.
 
            Attorneys at Law
 
            480 6th Street
 
            P.O. Box 209
 
            Waukee, Iowa 50263
 
            
 
            Mr. Harry Dahl
 
            Attorney at Law
 
            974 73rd St., Ste. 16
 
            Des Moines, Iowa 50312
 
            
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-9999
 
                                          Filed April 19, 1990
 
                                          DAVID E. LINQUIST
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DEBBIE TASLER,                :
 
                                          :      File No. 843209
 
                 Claimant,                :               841036
 
                                          :               848406
 
            vs.                           :               888745
 
                                          :
 
            OSCAR MAYER FOODS CORP.,      :        A P P E A L
 
                                          :
 
                 Employer,                :      D E C I S I O N
 
                 Self-Insured,            :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-9999
 
            Deputy's decision summarily affirmed on appeal, with only 
 
            minor additional analysis.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DEBBIE TASLER,
 
          
 
              Claimant,                      File Nos.843209
 
                                                      841036
 
          VS.                                         848406
 
                                                      851714
 
          OSCAR MAYER FOODS CORP,                     888745
 
          
 
              Employer,                      A R B I T R A T I 0 N
 
              Self-Insured,
 
              Defendant.
 
                                                 D E C I S I 0 N
 
         
 
         
 
                                   INTRODUCTION
 
                                        
 
              This is a proceeding in arbitration brought by Debbie 
 
         Tasler, claimant, against Oscar Mayer Foods Corporation, 
 
         employer, and self-insured defendant, for benefits as a result of 
 
         five alleged injuries on the following dates:
 
         
 
              (1)  April 30, 1985        File no. 843209
 
              (2)  August 24, 1986       File no. 841036
 
              (3)  April 11, 1987        File no. 848406
 
              (4)  July 26, 1987         File no. 851714
 
              (5)  February 16, 1988     File no. 888745
 
         
 
              A hearing :was held in Des Moines, Iowa, on June 12, 1989, 
 
         and the case was fully submitted at the close of the hearing.  
 
         Claimant was represented by Wayne H. McKinney, Jr. and Robert E. 
 
         McKinney.  Defendant was represented by Harry W. Dahl.  The 
 
         record consists of the testimony of Debbie Tasler, claimant, 
 
         David Tasler, claimant's husband, joint exhibit I with subparts A 
 
         through P and joint exhibit II pages 1 through 45.
 
              The attorneys for both parties submitted excellent briefs.  
 
         Defendant ordered a transcript and supplied a copy for the 
 
         industrial commissioner's file.
 
         
 
                             STIPULATIONS AND ISSUES
 
                                        
 
                         Alleged Injury of April 30, 1985
 
                                        
 
                                   Stipulations
 
                                        
 
              The parties stipulated to employee-employer relationship; 
 
         that no claim is made for temporary disability benefits; that the 
 
         rate of compensation is $187.58 per week; that the provider of 
 
         medical services and supplies would testify that the medical 
 
         expenses are fair and reasonable and were for reasonable and 
 
         necessary medical treatment; that defendant makes no claim for 
 
         credit for either employee nonoccupational group health
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         TASLER VS. OSCAR MAYER FOODS CORP.
 
         Page 2
 
         
 
         
 
         plan benefits or workers' compensation benefits paid prior to 
 
         hearing; that there are no bifurcated claims.
 
         
 
                                      Issues
 
         
 
              The parties submitted the following issues for 
 
         determination.
 
         
 
              Whether claimant sustained an injury on April 30, 1985, 
 
         which arose out of and in the course of employment with employer.
 
         
 
              Whether the alleged injury was the cause of permanent 
 
         disability.
 
         
 
              Whether claimant is entitled to permanent disability 
 
         benefits, and if so, the nature and extent of benefits to which 
 
         she is entitled.
 
         
 
              Whether claimant is entitled to medical benefits.
 
         
 
                        Alleged Injury of August 24, 1986 
 
                                        
 
                                   Stipulations
 
                                        
 
              The parties stipulated to an employee-employer relationship; 
 
         that no claim is made for temporary disability benefits; that the 
 
         rate of compensation is $233.41 per week; that the provider of 
 
         medical services and supplies would testify that the medical 
 
         expenses were fair and reasonable and were incurred for 
 
         reasonable and necessary medical treatment; that defendant makes 
 
         no claim for either employee group nonoccupational health plan 
 
         benefits or for workers' compensation benefits paid prior to 
 
         hearing; that there are no bifurcated claims.
 
         
 
                                      Issues
 
         
 
              The parties submitted the following issues for 
 
         determination.
 
         
 
              Whether claimant sustained an injury on August 24, 1986, 
 
         which arose out of and in the course of employment with employer.
 
         
 
              Whether the alleged injury was the cause of permanent 
 
         disability.
 
         
 
              Whether claimant is entitled to permanent.disability 
 
         benefits, and if so, the nature and extent of benefits to which 
 
         she is entitled.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Whether claimant is entitled to medical expenses.
 
         
 
                        Alleged Injury of April 11, 1987 
 
                                        
 
                                   Stipulations
 
                                        
 
              The parties stipulated to employee-employer relationship;
 
         
 
         
 
         TASLER VS. OSCAR MAYER FOODS CORP.
 
         Page 3
 
         
 
         
 
         that no claim is made for temporary disability benefits; that the 
 
         rate of compensation is $245.88 per week, that the provider of 
 
         medical services and supplies would testify that the medical 
 
         expenses are fair and reasonable and were for reasonable and 
 
         necessary medical treatment; that defendant makes no claim for 
 
         credit for either employee nonoccupational group health plan 
 
         benefits or for workers' compensation benefits paid prior to 
 
         hearing; that there are no bifurcated claims.
 
         
 
                                      Issues
 
         
 
              The parties submitted the following issues for 
 
         determination.
 
         
 
              Whether claimant sustained an injury on April 11, 1987, that 
 
         arose out of and in the course of employment with employer.
 
         
 
              Whether the alleged injury was the cause of permanent 
 
         disability.
 
         
 
              Whether claimant is entitled to permanent disability 
 
         benefits, and if so, the nature and extent of benefits.
 
         
 
              Whether claimant is entitled to medical benefits.
 
         
 
                         Alleged Injury of July 26, 1987
 
         
 
              The parties made certain stipulations and submitted certain 
 
         issues for determination at the time of the hearing for this 
 
         injury.  Claimant presented testimony and defendant 
 
         cross-examined claimant about this injury.  Claimant introduced 
 
         exhibits pertaining to this injury;.however, at the close of 
 
         claimant's testimony, claimant's attorney moved to dismiss the 
 
         petition and action as to the alleged injury of July 26, 1987.
 
         
 
              Defendant did not object to the motion to dismiss.  
 
         Wherefore, pursuant to Division of Industrial Services Rule 
 
         343-4.35 and Iowa Rules of Civil Procedure 215, Voluntary 
 
         Dismissal, the motion was granted and claimant's petition and 
 
         action were dismissed without prejudice as to the alleged injury 
 
         of July 26, 1987 (file no. 851714, transcript page 95).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                       Alleged Injury of February 16, 1988
 
                                        
 
                                   Stipulations
 
         
 
              The parties stipulated to employee-employer relationship; 
 
         that no claim was made for temporary disability benefits; that 
 
         the type of permanent disability is industrial disability; that 
 
         the rate of compensation is $271.76 per week; that the provider 
 
         of medical supplies and services would testify that their charges 
 
         are fair and reasonable and were for reasonable and necessary 
 
         medical treatment; that defendant makes no claim
 
         
 
         
 
         
 
         TASLER VS. OSCAR MAYER FOODS CORP.
 
         Page 4
 
         
 
         
 
         for credit for either employee nonoccupational group health plan 
 
         benefits or workers' compensation benefits paid prior to hearing; 
 
         that there are no bifurcated claims.
 
         
 
                                      Issues
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing.
 
         
 
              Whether claimant sustained an injury on February 16, 1988, 
 
         which arose out of and in the course of employment with employer.
 
         
 
              Whether the alleged injury was the cause of permanent 
 
         disability.
 
         
 
              Whether claimant is entitled to permanent disability 
 
         benefits, and if so, the nature and extent of benefits to which 
 
         she is entitled.
 
         
 
              Whether claimant is entitled to medical benefits.
 
         
 
              Defendant withdrew the issue of timely notice under Iowa 
 
         Code section 85.23 which appears on the hearing assignment order 
 
         as applicable to the injury of February 16, 1988 (file no. 
 
         888745).
 
         
 
                                 Additional Issue
 
         
 
              Claimant asserts that she is entitled to an Iowa Code 
 
         section 85.39 examination as shown on the hearing assignment 
 
         order and that the cost of it should be prorated over all of the 
 
         alleged.injuries (tr. p. 19)
 
         
 
              Defendant disputes claimant's entitlement to an Iowa Code 
 
         section 85.39 examination because a separate petition seeking an 
 
         independent medical examination was not filed (tr. pp. 19, 22 & 
 
         23).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Of all the evidence that was introduced, the following is a 
 
         summary of the evidence most pertinent to this decision.
 
         
 
              Claimant was 31 years old at the time of the hearing.  She 
 
         is married and has a nine-year-old daughter.  She graduated from 
 
         high school as an honor roll student.  She completed one year of 
 
         correspondence and six weeks of school training and received a 
 
         certificate as an airline ticket reservationist.  At the time of 
 
         the hearing claimant was enrolled in the Des Moines Area 
 
         Community College at Ankeny.  On May 23, 1989, claimant started a 
 
         two year course to become an executive assistant.
 
         
 
              Past employments include assisting residents at Woodward
 
         
 
         
 
         
 
         TASLER VS. OSCAR MAYER FOODS CORP.
 
         Page 5
 
         
 
         
 
         State Hospital School, operating a restaurant, diversified 
 
         construction work and clerk in a convenience store.  While at 
 
         Woodward she injured her back turning a mattress and received 
 
         workers' compensation.  The construction work involved pouring 
 
         concrete, hot tarring roofs, tearing down walls and operating a 
 
         jackhammar for eight hours a day.  The only injury she suffered 
 
         on the construction job was stepping on a nail.  She has also 
 
         prepared and served food in the bar owned by her mother and 
 
         continued to do this at the time of the hearing.
 
         
 
              Claimant started to work for employer on September 3, 1983 
 
         (joint exhibit II, pp. 1-4). Her employment was terminated when 
 
         the plant closed on February 3, 1989 (tr. p. 86).  She received a 
 
         preemployment physical examination when she started.  Her 
 
         examination was normal at that time and she began work with no 
 
         restrictions (JE II, pp. 5 & 6).  Claimant worked as a ham boner 
 
         for approximately one year.  She then became a band saw operator 
 
         in approximately September of 1984 and cut off the jowl and split 
 
         shoulders on approximately 700 to 900 hogs per hour.
 
         
 
              On January 25, 1985, her band saw was repaired.  The 
 
         repairman failed to replace the plastic grate that claimant stood 
 
         on in the proper position.  When claimant reached for a piece of 
 
         meat her foot went between the stand and the conveyor and she 
 
         dropped down about two feet hitting her right arm on a metal bar.  
 
         She heard a snap-crackling sound in her right shoulder.  The 
 
         injury was reported to superiors and claimant was sent to see 
 
         Robert Deranleau, M.D., later that day (JE I-A, p. 2).  He sent 
 
         claimant to Arnis Grundberg, M.D., an orthopedic surgeon, who 
 
         permanently restricted her from operating the band saw on April 
 
         30, 1985.  Claimant denied any prior shoulder problems.  In May 
 
         of 1985, she began collaring hams which is also called skinning 
 
         hams (tr. pp. 48-59; JE II, p. 19).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Although claimant denied prior problems, the plant medical 
 
         record shows that she was treated several times in 1984 and 1985 
 
         for fingers, thumbs, hands, wrists, elbows, shoulders and arms on 
 
         both upper extremities as well as back pain (JE II, pp. 25-27).  
 
         She continued to have these complaints and was treated for them 
 
         numerous times in 1986, 1987 and 1988 (JE II, pp.1 28-38).
 
         
 
              Dr. Deranleau's records show that he treated claimant prior 
 
         to this injury: (1) on March 9, 1984, for pain in the right 
 
         forearm from the wrist to the elbow; (2) on July 17, 1984, for 
 
         pain in the right hand, elbow and shoulder with numbness over the 
 
         dorsal surface of the distal forearm; and (3) on January 14, 
 
         1985, for the left shoulder bothering her for three 
 
         days-subdeltoid bursitis, left.
 
         
 
              Dr. Deranleau's entry for January 25, 1985, shows right 
 
         shoulder, forearm, hand pain, fingers lock, whole arm goes
 
         
 
         
 
         
 
         TASLER VS. OSCAR MAYER FOODS CORP.
 
         Page 6
 
         
 
         
 
         dead (JE I-A, pp. 1 & 2).  He did not record a fall as claimant 
 
         described in her testimony.  He did not mention permanent injury 
 
         or impairment.
 
         
 
              On February 25, 1985, Dr. Grundberg reported claimant told 
 
         him the ulnar three digits of her right hand had been going numb 
 
         for two and one-half months.  She had pain in the wrist and 
 
         forearm that radiated to the shoulder.  The shoulder pops and 
 
         grinds and is weak.  In the morning she has pain from the neck on 
 
         down.  Her elbow hurts; she bumps it frequently on a bar at work.  
 
         Cervical spine x-rays were negative.  He diagnosed ulnar nerve 
 
         irritation and irritation at the cervical spine, elbow and wrist.  
 
         He prescribed medications.  He continued to see claimant on March 
 
         19, 1985, April 26, 1985 and April 30, 1985, and on each date 
 
         indicated he had told employer to remove claimant from the band 
 
         saw because it was dangerous due to the numbness in her hand.  He 
 
         said she should be permanently restricted from the power saw (JE 
 
         II, p. 28).  He wrote a letter to employer to that effect on May 
 
         1, 1985.  On June 18, 1985, he diagnosed thoracic outlet 
 
         syndrome.on July 2, 1985, he reported ulnar nerve irritation with 
 
         gradual onset which occurred at work.  Claimant testified and Dr. 
 
         Grundberg's records indicate that claimant lost no time from 
 
         work.  Dr. Grundberg made no mention of permanent injury and gave 
 
         no impairment rating (JE II-B, pp. 1-5).
 
         
 
              Claimant testified her second alleged injury occurred on 
 
         August 24, 1986, when she was skinning 1800 hams per hour which 
 
         might weigh between 17 and 35 pounds.  The pain in her neck, both 
 
         shoulders, both arms and her right hand became unbearable and she 
 
         was working in tears.  On this occasion she was sent to see Kurt 
 
         J. Klise, M.D. and Steven Sohn, M.D. (tr. pp. 59-68).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The office notes of Dr. Klise show that claimant actually 
 
         saw him on August 16, 1986, for right shoulder, neck and arm 
 
         discomfort and right hand weakness.  All of his tests resulted in 
 
         normal results and he diagnosed muscle strain injury.  She 
 
         returned again on August 21, 1986, with more discomfort.  The 
 
         doctor could only find tenderness again from his physical 
 
         examination and he diagnosed right trapezius muscle spasm.  There 
 
         is no entry for the alleged injury date of August 24, 1986.  
 
         Claimant's next office visit was October 30 , 1986, for 
 
         complaints of paresthesias in her hands and wrists.  Dr. Klise 
 
         sent claimant to Douglas W..Brenton, M.D., a neurologist, for an 
 
         EMG and a neurologic assessment.  Dr. Brenton reported on 
 
         November 5, 1986, that no pathologic responses were elicited.  
 
         Nerve conduction studies were normal.  There was subjective 
 
         tingling elicited by percussion over the median nerve.  Strength, 
 
         motion and sensation were essentially normal except for the 
 
         subjective tingling (JE I-D, pp. 1-4) Dr. Brenton concluded as 
 
         follows:
 
         
 
              Impression:  Musculoskeletal pain syndrome secondary
 
                           to hard manual labor.
 
         
 
         
 
         
 
         TASLER VS. OSCAR MAYER FOODS CORP.
 
         Page 7
 
         
 
         
 
              Recommendations: I don't feel that further neurologic workup 
 
              would be advised here.  She does not have sufficiently 
 
              adequate symptomatology to warrant consideration of a carpal 
 
              tunnel release.
 
              
 
              I would recommend reassignment to a different job which does 
 
              not require such repetitive and vigorous upper extremity 
 
              work.
 
         
 
         (JE I-D, P. 2)
 
         
 
              Dr. Klise did not mention permanent impairment or give an 
 
         impairment rating.
 
         
 
              After boning hams, claimant worked on the extra gang filling 
 
         in for absent employees.  At first she boned hams, then did 
 
         Whizard knife bellies which made her hand feel like it was on 
 
         fire, turn blue and white and made her right ring finger lock up.  
 
         She also laid liver cheese, threw loins, gas packed loins, 
 
         trimmed neck bones, trimmed jowls, ran the main chain, called the 
 
         shoulder chop, split hogs, pushed hogs into the cooler, hung 
 
         gambrels, unloaded hogs from a truck onto the rails, cleaned 
 
         rails, and dumped barrels of scrap meat.
 
         
 
              At the time of her alleged injury on April 11, 1987, she was 
 
         collaring hams on the ham skinner.  Nothing in particular 
 
         happened except that pain in her neck, shoulder, right arm, hand 
 
         and fingers became so intensified that she could not take it any 
 
         longer.  She went to see Dr. Klise.  His records do not record a 
 
         visit from claimant until May 12, 1987, at which time he put her 
 
         on light duty, 50 percent, until May 18, 1987.  Dr. Klise said 
 
         she was operating the Whizard knife and her ring finger was 
 
         locking up.  He diagnosed trigger finger (JE I-C).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant admitted that with respect to the alleged injury of 
 
         July 26, 1987, that she injured her back lifting a bowling bail.  
 
         She was hospitalized for a week and lost approximately six weeks 
 
         from work.  A bulging disc was discovered at L4, L5 by R.E. 
 
         Vermillion, D.O.  Dr. Vermillion diagnosed lumbar disc syndrome 
 
         with left sciatic neuritis, myositis and lumbar strain.  Claimant 
 
         was treated conservatively with bed rest, medications and 
 
         physical therapy.  Claimant returned to work without restrictions 
 
         (JE I-E & F).
 
         
 
              At the time of the alleged injury on February 16, 1988, 
 
         claimant was working on the belly line.   A foreman asked her to 
 
         reach across the line and cut the bone from a belly that someone 
 
         up the line had missed.  As she did so the muscle in her left 
 
         lower back tightened up.  Claimant had an appointment already 
 
         with her own personal physician, Dennis Rolek, D.O., Ph.D. 
 
         Claimant denied that she had ever experienced pain on
 
         
 
         
 
         
 
         TASLER.VS. OSCAR MAYER FOODS CORP.
 
         Page 8
 
         
 
         
 
         the left side of her back before.  A CT scan on February 18, 
 
         1988, showed degenerative changes at L4, L5 and L5, Sl (JE I-G, 
 
         p. 2).  Dr. Rolek's office note on what may be February 16, 1988, 
 
         is so faint that the copy is not readable (JE I-G, p. 7).
 
         
 
              Dr. Steven Sohn reported that he saw claimant on February 
 
         19, 1988, for an injury that occurred on February 19, 1988.  
 
         Claimant said this was the injury of February 16, 1988.  Claimant 
 
         complained of pain in her left lower back after reaching over a 
 
         table.  He diagnosed a muscle strain of the left lumbar region 
 
         (JE I-K).
 
         
 
              Claimant verified that she  did  not  lose  any  time  from 
 
         work on account of any of these injuries, except for the bowling 
 
         ball incident (tr. pp. 101 & 102).
 
         
 
              Claimant testified that when the plant shut down she was 
 
         restricted by Dr. Sohn to a 15 minute break every hour and not to 
 
         lift more than 15 pounds (tr. pp. 102-105).  This is verified by 
 
         the employer's medical record on claimant (JE II, p. 38).
 
         
 
              Claimant testified that her problems have even continued to 
 
         get worse after the plant closed.  She testified that she cannot 
 
         mash potatoes, wash her hair in the sink, lift her arms high 
 
         enough to put her daughter's hair up in ponytails, and if she 
 
         tries her hands and arms go numb.  She has to support her back 
 
         when she sits.  She cannot take long walks, stand or sit too 
 
         long.
 
         
 
              Dr. Rolek examined claimant on September 28, 1987, for the 
 
         fall in 1985 (JE I-G, p. 6).  A CT scan on September 28, 1987, 
 
         from C-2 through C-4 showed no evidence of disc herniation or 
 
         other abnormality, (JE I-H, p. 1).  A peripheral artery 
 
         evaluation of October 7, 1987, suggested a possibility of mild 
 
         impingement of the left subclavian artery with both 
 
         hyperabduction maneuvers as well as thoracic outlet syndrome 
 
         maneuvers (JE I-I, P. 1).  An EMG on February 18, 1988, showed no 
 
         abnormality and conduction velocity studies above the nerves were 
 
         normal (JE I-J, pp.1-5).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              On January 25, 1988, Dr. Rolek wrote:
 
              
 
              As you know Ms. Debbie Tasler suffers with and from pain and 
 
              numbness in both upper extremities.  She relates her 
 
              symptoms to a work related accident which apparently 
 
              happened in 1985.
 
              
 
              Ms. Tasler's diagnosis at this time is bilateral Thoracic 
 
              Outlet Syndrome and Cervical Spine Strain.
 
              
 
              Her disability rating is approximately 35% of normal.
 
              
 
              
 
              
 
         TASLER VS. OSCAR MAYER FOODS CORP.
 
         Page 9
 
         
 
         
 
              her condition is permanent but may become progressively 
 
              worse.
 
         
 
         (JE I-G, p. 1)
 
         
 
              Dr. Rolek updated his former report as follows on July 19, 
 
         1988:
 
         
 
              I am writing to update you on the status of Ms. Debbie 
 
              Tasler.
 
              
 
              I most recently examined Ms. Tasler on July 11, 1988.  At 
 
              that time she had multiple complaints related to her neck, 
 
              head, low back and upper and lower extremities.
 
              
 
              Ms. Tasler's diagnosis at this time is:
 
         
 
                 Bilateral Thoracic Outlet Syndrome
 
                 Cervical Spine Strain
 
                 Lumbar Spine Strain
 
                 Tension Cephalgia
 
              
 
              I feel that Ms. Tasler's disability rating at this time is 
 
              approximately 44% of normal.  Her condition is permanent but 
 
              may become progressively worse.
 
         
 
         (JE,I-G, p. 3)
 
         
 
              Dr. Rolek further refined his opinion as follows on October 
 
         27, 1988:
 
         
 
              Ms. Tasler's Thoracic Outlet Syndrome and Cervical Spine 
 
              Strain are probably related to her work related injury in 
 
              April 1985.
 
              
 
              Ms. Tasler's Lumbar Spine Strain was probably related to her 
 
              work related injury on February 18, 1988.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (JE I-G, p. 4)
 
         
 
              Dr. Rolek wrote to claimant again on November 22, 1988 with 
 
         the following clarification of hit impairment determination:
 
         
 
              Ms. Debbie.Tasler's disability rating of 44% of normal would 
 
              be converted into approximately 28% impairment according to 
 
              the AMA Guideline for permanent impairment.
 
              
 
              This 28% would be divided into 12% impairment for her low 
 
              back problems and 16% impairment for the problems related to 
 
              her upper extremities and neck.
 
         
 
         (JE I-G, p. 5)
 
         
 
         
 
         
 
         TASLER VS. OSCAR MAYER FOODS CORP.
 
         Page 10
 
         
 
         
 
              Dr. Rolek appears to rate claimant's back injury in a letter 
 
         dated June 8, 1989.
 
         
 
              Ms. Tasler's impairment rating pursuant to the AMA 
 
              Guidelines of Permanent Impairment is approximately 13%.
 
              
 
              Relative to whether the injury took  place on February 16 or 
 
              February 18, 1988, I can only  say that my records may be in 
 
              error.
 
         
 
         (JE I-G, p. 8)
 
         
 
              Dr. Rolek referred claimant to S. Randy Winston, M.D., a 
 
         neurosurgeon, for an evaluation.  Dr. Winston reported on April 
 
         19, 1988, that claimant has myofascitis and probably bilateral 
 
         thoracic outlet syndrome.  He could find no neurologic 
 
         abnormality.  Her EMG and nerve conduction study were normal.  
 
         The CT of her lumbar spine demonstrated arthritic change and some 
 
         preexisting lumbosacral problems.  Dr. Winston concluded as 
 
         follows:
 
         
 
              It would appear that the patient should consider some type 
 
              of change in her job description since much of what she does 
 
              obviously is aggravating the condition.  Certainly, 
 
              treatment of thoracic outlet syndrome might give her some 
 
              relief but this does not confer the ability for her to 
 
              continue abuse what seems to be a body habitus not able to 
 
              tolerate many of those things which she is required to do.
 
         
 
         (JE I-L, p. 10)
 
         
 
              Claimant was examined on two occasions by Peter D. Wirtz, 
 
         M.D., at the request of defendant.  He first examined claimant on 
 
         September 30, 1989.  Claimant was working on the extra gang and 
 
         voiced complaints about her neck, shoulder, arms, low back, and 
 
         left leg. on October 10, 1988, Dr. Wirtz evaluated claimant's 
 
         condition as follows:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Cervical spine X-rays including obliques are normal.  The 
 
              shoulder X-ray bilaterally is normal.  Lumbar spine shows 
 
              increased transverse process L5 with parallel disc space 
 
              L5-Sl, congenital.
 
              
 
              Diagnosis:
 
              
 
              1.Muscular cervical strain.
 
              2.Muscular lumbar strain.
 
              3.Bilateral shoulder muscular strain.
 
              4.Congenital L5-Sl bony anomaly.
 
              5.Bilateral vascular thoracic outlet syndrome.
 
              6.Left Achilles tendon, acute tendonitis.
 
         
 
         
 
         
 
         TASLER VS. OSCAR MAYER FOODS CORP.
 
         Page 11
 
         
 
         
 
              7.  Acute muscular strain left lower back, resolving.
 
              
 
              This patient has had electromyographic studies which reveal 
 
              she does not have a carpal tunnel syndrome.
 
              
 
              She exhibits symptoms of muscular strain to the neck, 
 
              shoulder lower back, and also as a tendonitis condition, 
 
              left leg, which relates to overstress.  Presently she does 
 
              not have any condition that would be permanent in nature and 
 
              if she continues to work beyond her physiologic 
 
              capabilities, she will continue to exhibit these symptoms.
 
         
 
         (JE I-M, p. 2)
 
         
 
              Dr. Wirtz saw claimant again on April 14, 1989, and reported 
 
         on May 4, 1989.  The office notes on April 14, 1989, conclude as 
 
         follows:
 
         
 
              Diagnosis:
 
              
 
              1.  Symptoms neck and lower back, musculature.
 
              
 
              This patient does not demonstrate any objective findings to 
 
              limit her within her physiologic strength and dexterity in 
 
              the neck, back, and achilles tendon areas.
 
              
 
              This patient does not demonstrate any objective findings 
 
              that would ' indicate permanent impairment related to the 
 
              neck and lower back or the achilles tendon area.
 
              
 
              This patient's persistence of symptoms would not be related 
 
              to any one specific work related injury in that they have 
 
              continued to be symptomatic without provocation as she has 
 
              not been working in the last. eight weeks.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (JE I-M, p. 4)
 
         
 
              Dr. Wirtz's final report concludes:
 
         
 
              This patient's diagnosis is muscular neck and lower back 
 
              symptomatology.  This patient's condition does not exhibit 
 
              objective findings to indicate permanent impairment as 
 
              a.result of this symptom group.
 
              
 
              These symptoms are muscular in nature and are not related to 
 
              any one specific activity causing such to include those 
 
              activities while she was working at Oscar Mayer.  The 
 
              present symptomatolotyis [sic] due to activities prior to 
 
              their occurring and would
 
              
 
              
 
              
 
         TASLER VS. OSCAR MAYER FOODS CORP.
 
         Page 12
 
         
 
         
 
              be non work [sic] related and would include normal daily 
 
              activities.  The patient's congenital increased 
 
              transverse.process at L5 is not contributing to her present 
 
              low back symptomatology.
 
         
 
         (JE I-M, p. 3)
 
         
 
              Claimant's company medical record, sometimes referred to as 
 
         nurse notes, contain numerous entries (JE I-A, pp. 25-38).
 
         
 
              The first time claimant complained about her back was 
 
         shortly after she started work on November 23, 1983.  The 
 
         notation says:  "left side of back sore."  On July 16, 1984, the 
 
         medical record shows: "right hand, wrist, and arm sore this past 
 
         week." On September 31, 1984, the record shows:   "back pain and 
 
         shoulder pain" and she was changed from boning hams.  On October 
 
         29, 1984, her left shoulder was sore.  On January 10, 1985, her 
 
         right shoulder was reported as sore.
 
         
 
              On January 25, 1989, the record does not report a traumatic 
 
         injury of falling and hitting the rail as claimant described but 
 
         does report right arm numb and hurt and confirms that the company 
 
         sent claimant to Dr. Deranleau who referred claimant to Dr. 
 
         Grundberg.
 
         
 
              To briefly summarize the company medical record for the 
 
         balance of 1985, it shows 30 entries for such matters as right 
 
         arm sore, right palm, right shoulder sore, both hands and wrists 
 
         wrapped, neck, right side of back, left side of spine, hand, 
 
         right elbow, left rib area sore, back sore, and both arms sore.
 
         
 
              The medical record for 1986 has 27 entries for such items as 
 
         shoulder and neck sore, left leg and back, ring and middle finger 
 
         sore, arm and shoulder hurting, right shoulder popping and sore 
 
         elbow, shoulder very sore, new prescription for right shoulder, 
 
         having physical therapy, wants physical therapy again wrap 
 
         wrists, finished physical therapy, and right wrist complaint.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The 1987 medical record shows 22 entries for such items as: 
 
         blister fifth finger, arm sore, right ring finger locks, hands 
 
         swell at night, right hand discolored white, fingers locking, 
 
         right ring finger locked this morning, shoulder arm and hand 
 
         hurt, fingers hurt, left shoulder and neck sore, right shoulder 
 
         sore and has never gotten better, pain in right hand, fingers 
 
         swollen, right hand and fingers sore, right ring finger locks.
 
         
 
              The 1988 entries on the medical record show 44 entries for 
 
         these items: ring finger is better and middle finger is numb, 
 
         rest of fingers numb, right thumb and index sore, right hand, 
 
         splint on right, possible CT, right index blister, left side of 
 
         back sore, too sore to work, back sore from February 16, wrist 
 
         red and swollen, dress finger, right shoulder sore,
 
         
 
         
 
         
 
         TASLER-VS. OSCAR MAYER FOODS CORP.
 
         Page 13
 
         
 
         
 
         right elbow out, blister on right fifth finger, right index still 
 
         tender, sore muscles and spasm of shoulder, left shoulder sore, 
 
         heel and hip hurt, left shoulder sore, right index, arm bruises, 
 
         back muscles sore, physical therapy, left shoulder and right 
 
         elbow worse, right hand and fingers, pain in the lower back and 
 
         shoulders and both arms and neck, shoulder, back still bothers, 
 
         left shoulder still hurting, blister between fourth and fifth 
 
         fingers, blister right middle finger.
 
         
 
              The medical record shows restrictions on a number of 
 
         occasions.  On February 24, 1984, Dr. Deranleau ordered light 
 
         duty for one week.  On May 13, 1987, Dr. Klise ordered 50 percent 
 
         duty until May 18, 1987.  On March 4, 1988, claimant was placed 
 
         on 50 percent duty until March 7, 1988, due to doctor's orders.  
 
         On August 23, 1988, claimant was placed on 50 percent duty until 
 
         August 26, 1988.  On December 14, 1988, the notes show a late 
 
         entry for claimant's visit to Dr. Sohn a month earlier on 
 
         November 14, 1988, at which time he imposed the restriction of no 
 
         bending, stooping or lifting over 15 pounds and must take a 15 
 
         minute break every hour.  On December 28, 1988, the notation 
 
         says: "continue the current level of duties for two more weeks."
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
                                        
 
              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(l).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence-that she received injuries on April 30, 1985, August 24, 
 
         1986, April 11, 1987, and February 16, 1988, which arose out of 
 
         and in the course of her employment.  McDowell v.Town of 
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         v.Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's 
 
         Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of 
 
         Iowa, 249 Iowa 1147, 91 N.W.2d 555 .(1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63 
 
         (1955).
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee
 
         
 
         
 
         
 
         TASLER VS. OSCAR MAYER FOODS CORP.
 
         Page 14
 
         
 
         
 
         may reasonably be, and while he is doing his work or something 
 
         incidental to it."  Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979); McClure, 188 N.W.2d 283 (Iowa 1971); 
 
         Musselman, 261 Iowa 352,, 154 N.W.2d 128 (1967).
 
         
 
              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, 760-761 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 
 
         812, 815 (1962).
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 (1960).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injuries of April 30, 1985, August 24, 
 
         1986, April 11, 1987, February 16, 1988, are 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, 261 Iowa 352, 154 
 
         N.W.2d 128 (1967).
 
         
 
              As claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of
 
                                        
 
                                        
 
                                        
 
         TASLER VS. OSCAR MAYER FOODS CORP.
 
         Page 15
 
         
 
         
 
         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).
 
         
 
              Claimant apparently did sustain an injury on January 25, 
 
         1985.  Claimant testified about this fall injury and it is in the 
 
         medical records.  Claimant appears to use this fall as a basis 
 
         for the injury alleged to have occurred on April 30, 1985.  
 
         However, the petition was filed March 31, 1987, and the injury of 
 
         January 25, 1985 may be barred by the statue of limitations on 
 
         January 25, 1987 [Iowa Code section 85.26(i)].
 
         
 
              There is no evidence that claimant sustained an injury on 
 
         April 30, 1985.  The only thing that occurred on that date was 
 
         that Dr. Grundberg imposed the permanent restriction from 
 
         operating the band saw on that date (JE I-B, p. 2; JE II, p. 28).
 
         
 
              As to the alleged injury of August 24, 1986, there is no 
 
         evidence of a specific incident or happening on August 24, 1986.  
 
         Claimant testified that her pain became unbearable on that date 
 
         and she was treated by Dr. Klise.  However, the plant medical 
 
         records indicate that she reported these symptoms on August 13, 
 
         1986.  Dr. Klise's records show that he treated claimant for 
 
         these symptoms on August 14, 1986.  Therefore, it cannot be 
 
         stated that claimant sustained an injury on August 24, 1986.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              As to the alleged injury of April 11, 1987, claimant 
 
         testified that nothing in particular happened except that the 
 
         pain in her neck, shoulder, right arm, hand and fingers became so 
 
         intensified that she could not take it any longer and that she 
 
         saw Dr. Klise again.  The plant medical record has no entry for 
 
         this date, but does indicate that claimant was sent to see Dr. 
 
         Klise on May 12, 1987, due to complaints that may have developed 
 
         on April 28, 1987, May 1, 1987, and May 11, 1987.  Dr. Klise's 
 
         records show that he did not see claimant after October 30, 1986, 
 
         until May 12, 1987.  Therefore, it cannot be said that claimant 
 
         sustained an injury on April 11, 1987.
 
         
 
              Claimant testified and the medical records support that she 
 
         reached across the table on February 16, 1988, and felt a pain in 
 
         her back at that time.  However, that incident appears to be just 
 
         one episode in a long series of neck, shoulder, arm, elbow, 
 
         wrist, hand, finger and back complaints that claimant incurred 
 
         over her five and one-half year period of employment with 
 
         employer.
 
         
 
         
 
         
 
         TASLER VS. OSCAR MAYER FOODS CORP.
 
         Page 16
 
         
 
         
 
              Claimant testified and the record supports that claimant was 
 
         25 years old and was in good health at the time of her 
 
         preemployment physical examination and when she started with 
 
         employer on September 3, 1983 (JE II, pp. 1, 2, 5 & 6).  There is 
 
         no evidence of residual effect from the back injury she sustained 
 
         while turning a mattress at Woodward State Hospital School in 
 
         1975. (tr. p. 36).' The plant medical record shows her first back 
 
         complaint on November 23, 1983, when it was reported the side of 
 
         her back was sore.  From that point forward until the medical 
 
         record ends on December 28, 1988, (which continues the 
 
         restriction of no bending, stooping or lifting over 15 pounds and 
 
         a 15 minute break each hour) the plant medical record certifies a 
 
         constant repetition of entries for neck, back, shoulder, elbow, 
 
         arm, wrist, hand and finger complaints (JE II, pp. 25-38).
 
         
 
              Claimant testified in some detail about the repetitive 
 
         nature of her work handling several hundred pieces of meat per 
 
         hour.  She used the band saw until permanently restricted from 
 
         it.  She used a Whizard knife, operated other moving equipment 
 
         and constantly used her hands and arms and whole body to perform 
 
         her various repetitive manual labor jobs as can be seen from the 
 
         summarized facts above and in more detail from reading the 
 
         transcript itself.  Her entire five and one-half years were spent 
 
         on the production line with indications of a considerable amount 
 
         of overtime in the evidence.
 
         
 
              Dr. Grundberg diagnosed ulnar nerve irritation on July 2, 
 
         1985, with gradual onset.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              On November 5, 1986, Dr. Brenton recommended transfer to a 
 
         different job which did not require such repetitive and vigorous 
 
         upper extremity work.
 
         
 
              Based on the company medical records and the medical records 
 
         of Dr. Deranleau, Dr. Grundberg, Dr. Klise, Dr. Brenton, Dr. 
 
         Sohn, Dr. Rolek, Dr. Winston and Dr. Wirtz, it is determined that 
 
         claimant has sustained a cumulative, repetitive, overuse type of 
 
         injury to her neck, shoulders, arms, elbows, wrists, hands, 
 
         fingers and back.  McKeever Custom Cabinets vs. Smith, 379 N.W.2d 
 
         115 (Iowa 1985).  Since claimant did not lose any significant 
 
         time from work while she was employed for employer, the injury 
 
         date most analogous to the McKeever case is the date her 
 
         employment was terminated on February 3, 1989.
 
         
 
              The injury to her neck and upper extremities was first 
 
         diagnosed as bilateral thoracic outlet syndrome by Dr. Grundberg 
 
         on June 18, 1985 (JE I-B, p. 2).  This diagnosis was also the 
 
         diagnosis of Dr. Rolek on January 15, 1988.  He said her 
 
         diagnosis was bilateral thoracic outlet syndrome and cervical 
 
         spine strain.  Dr. Winston diagnosed myofascitis and probably 
 
         bilateral thoracic outlet syndrome on April 19, 1988 (JE I-L, p. 
 
         10).  Dr. Wirtz
 
         
 
         
 
         
 
         TASLER VS. OSCAR MAYER FOODS CORP.
 
         Page 17
 
         
 
         
 
         made the same diagnosis of thoracic outlet syndrome on October 
 
         10, 1988 (JE I-M, p. 1).
 
         
 
              Dr. Vermillion diagnosed the back pain as lumbar disc 
 
         syndrome with left sciatic neuritis, myositis and lumbosacral 
 
         strain (JE II, pp. 1-41; JE I-F, p. 1).  Dr. Rolek called it 
 
         lumbar spine strain (JE I-G, p. 3).  Dr. Sohn said it was muscle 
 
         strain injury to the left lumbar region (JE I-K).  Dr. Wirtz 
 
         found muscular lumbar strain, congenital L5, Sl bony anomaly and 
 
         acute muscular strain left lower back, resolving.
 
         
 
              Dr. Rolek specifically stated that both conditions were 
 
         related to her work (JE I-G, P. 4).  Dr. Sohn said the February 
 
         16, 1988, injury was an occupational injury or illness (JE I-K).  
 
         Dr. Winston said claimant should consider a change of job because 
 
         much of what she does 11 obviously is aggravating her condition." 
 
         (JE I-L, p. 10).  Dr. Wirtz said "...if she continues to work 
 
         beyond her physiologic capabilities, she will continue to exhibit 
 
         these symptoms."  (JE I-M, p. 2).  From this evidence it is 
 
         determined that the employment is the cause of the injuries 
 
         complained of and that the injuries are the cause of claimant's 
 
         disability.
 
         
 
              As to the amount of permanent disability, Dr. Grundberg 
 
         restricted claimant from operating the band saw permanently on 
 
         April 30, 1985 (JE I-B, p. 2, 3, & 5).  Claimant testified and 
 
         the company medical records confirm that on November 14, 1988, 
 
         Dr. Sohn imposed restrictions of no bending, stopping or lifting 
 
         over 15 pounds and that she must take a 15 minute break every 
 
         hour.  Claimant testified that these restrictions were never 
 
         removed up until her termination date on February 3, 1989.  
 
         Claimant's testimony is not controverted by any other evidence.  
 
         After suggesting that claimant change jobs, Dr. Winston said that 
 
         even if she were treated for thoracic outlet syndrome, this would 
 
         not allow claimant to continue abuse to a body not able to 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         tolerate many of. those things which she is required to do (JE 
 
         I-L, p. 10).  Dr. Wirtz said that if claimant continues to work 
 
         beyond her physiologic capabilities, she will continue to exhibit 
 
         these symptoms (JE I-M, p. 2).  Dr. Rolek said claimant's 
 
         injuries were permanent (JE I-G, p. 1 & 3).  Dr. Rolek said that 
 
         claimant suffered a 12 percent impairment for her low back 
 
         problems and a 16 percent impairment for the problems related to 
 
         her upper extremities and neck based on the Guides to.the 
 
         Evaluation of Permanent Impairment
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         (JE I-G, p. 5).  These two values combine to 26 percent on the 
 
         combined values chart on page 236 of the third edition.  Dr. 
 
         Wirtz said that claimant did not have any permanent impairment 
 
         (JE I-M, pp. 1, 2, & 3).  Dr. Winston, Dr. Sohn, Dr. Klise, Dr. 
 
         Grundberg, and Dr. Deranleau did not mention impairment or give 
 
         an impairment rating.  This is determined not to be significant 
 
         in this case as there is no evidence that any of these doctors 
 
         were asked for an opinion on permanent impairment or the degree 
 
         of it for the purpose of a workers' compensation
 
         
 
         
 
         
 
         TASLER VS. OSCAR MAYER FOODS CORP.
 
         Page 18
 
         
 
         
 
         claim or for any other reason.  Claimant's objective tests of 
 
         MRI, CT scan, EMG and x-rays of her back and neck were all within 
 
         normal limits, except arthritic changes in her lumbar spine.  A 
 
         bone scan was normal.  The peripheral arterial evaluation did 
 
         show the possibility of mild impingement of the left subclavian 
 
         artery with hyperabduction and TOS maneuvers (JE I-I, p. 1).  
 
         Thus it would appear that claimant's extreme pain from her 
 
         injuries may not be supported by the objective medical evidence.  
 
         At the same time, her individual pain tolerance might support the 
 
         pain that she described.  None of the doctors discredited her 
 
         complaints of pain.
 
         
 
              As to the impairment ratings of Dr. Rolek, it seems that 
 
         they are exaggerated compared with the percentages in the AMA 
 
         Guides for injuries without surgery, the opinions of the other 
 
         doctors in other cases with respect to similar injuries and based 
 
         on agency expertise [Iowa Administrative Procedure Act 
 
         17A.14(5)]. At the same time it is determined that Dr. Wirtz's 
 
         evaluation of absolutely no permanent impairment is not 
 
         completely realistic in view of the other evidence in the case.
 
         
 
              Claimant was age 31 at the time of the hearing.  She was an 
 
         honor student in high school.  She completed a one year airline 
 
         reservationist course.  She is currently enrolled in an executive 
 
         assistant course at the area community college.
 
         
 
              The direct and immediate conclusion to be drawn from the 
 
         reports of Dr. Rolek, Dr. Winston, Dr. Brenton and Dr. Wirtz, is 
 
         that claimant should no longer continue to perform production 
 
         line work in the meat packing industry.  Therefore, the work she 
 
         has performed for the five and one-half years with employer is 
 
         foreclosed to her as a practical matter even though the 
 
         physicians did not formally state that claimant is permanently 
 
         restricted from this kind of work.  Continuing to work would 
 
         require more physical therapy, medications, wrapping of the 
 
         wrists and trips to the doctor.  Dr. Rolek said her condition 
 
         would become worse.  The other doctors, Dr. Brenton, Dr. Winston 
 
         and Dr. Wirtz imply the same.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant is young enough to be retrained and she is seeking 
 
         retraining with government aid.  The feasibility of retraining is 
 
         one of the considerations involved in determining industrial 
 
         disability.  Conrad vs.  Marquette School Inc., IV Iowa 
 
         Industrial Commissioner Report 74, 78 (1984).  At age 31, 
 
         claimant's loss is not as severe as it would be at a later age.  
 
         Becke vs. Turner-Busch, Thirty-fourth Biennial Report of the 
 
         Industrial commissioner 34 (Appeal Decision 1979); Walton vs. B & 
 
         H Tank Corp., II Iowa Industrial Commissioner Report 426; McCoy 
 
         vs. Donaldson Company, Inc., file nos. 752670 & 805300 (Appeal 
 
         Decision April 28, 1989).
 
         
 
              At the same time, as defendant's counsel pointed out, 
 
         claimant did not lose any time from work, she received all
 
         
 
         
 
         
 
         TASLER.VS. OSCAR MAYER FOODS CORP.
 
         Page 19
 
         
 
         
 
         of her salary increases to which she was entitled, and was 
 
         continuing to work until the day the plant closed.  Also to be 
 
         considered is that claimant was given prompt medical care at 
 
         defendant's medical facilities and was offered several doctors, 
 
         including specialists, for the treatment of her condition, a 
 
         great deal of physical therapy and many medications.  Also taken 
 
         into consideration is the fact that claimant has not sought any 
 
         other employment because of her intention of returning to school.
 
         
 
              Therefore, based on the foregoing evidence, ali of the 
 
         evidence in the record and all of the factors used to determine 
 
         industrial disability combined with agency expertise [IAPA 
 
         17A.14(5)], it is determined that claimant has sustained a 15 
 
         percent permanent industrial disability to the body as a whole 
 
         based on the cumulative job injury to her neck, shoulders, arms, 
 
         elbows, wrists, hands, fingers and lower back during her five and 
 
         one-half years of employment with employer performing repetitive 
 
         work with her upper extremities and her back.
 
         
 
              Claimant did not claim any healing period benefits and none 
 
         appear to be due from an examination of the record.  The 
 
         prehearing report for all of these injuries is marked "none 
 
         owed."
 
         
 
              The agreed rate of compensation for the date closest to the 
 
         injury date chosen for this case, February 3, 1989, is the rate 
 
         of compensation agreed upon for the injury of February 16, 1988, 
 
         in the amount of $271.76. That rate is adopted for this 
 
         cumulative injury.
 
         
 
              Claimant presented a figure of $174 for medical expenses 
 
         paid to the Boone County Hospital, but did not submit an itemized 
 
         copy of the bill.  According to the transcript this is what 
 
         claimant actually paid out of a much larger bill of $3,032.90. 
 
         Claimant paid $47 for a CAT scan on July 30, 1987, and $227 for 
 
         the hospital admission of August 12, 1987.  These bills are for 
 
         the injury of July 26, 1987 (file no. 851714) which was dismissed 
 
         and therefore, cannot be allowed in the proceeding.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              So much of Dr. Rolek's bill of February 16, 1988, in the 
 
         amount of $22 for an office visit, $63 for a lumbosacral x-ray 
 
         and his bill for the office visit on May 17, 1988, for herniated 
 
         lumbar disc are allowed as medical expenses under Iowa Code 
 
         section 85.27 as reasonable medical expenses for the alleged 
 
         injury of February 16, 1988, to her back.  The complaints on that 
 
         date are incorporated into the cumulative injury of February 3, 
 
         1989.  These bills total $107.  Defendant denied liability on all 
 
         of these claims and therefore, cannot expect to choose the care.  
 
         Barnhart vs. MAQ, Inc., I Iowa Industrial Commissioner Report 16 
 
         (1981); Kindert vs. Fort Des Moines Hotel, Vol. I
 
         No. 3 State of Iowa Industrial  Commissioner  Decisions  611 
 
         (Appeal
 
         Decision 1985).
 
         
 
         
 
         
 
         TASLER VS. OSCAR MAYER FOODS CORP.
 
         Page 20
 
         
 
         
 
              The office visit to Dr. Rolek on July 11, 1985, in the 
 
         amount of $22 and the C-Series X-rays on that date in the amount 
 
         of $108 are for cervical spine strain, TOS and back pain. . They 
 
         appear to be Iowa Code section 85.39 evaluation expenses for the 
 
         reason that Dr. Rolek did not treat claimant for her neck and 
 
         upper extremity problems and the alleged back injury of February 
 
         11, 1988, had not occurred yet.  At this point in time, there was 
 
         no evaluation from an employer doctor.  Therefore, there was no 
 
         evaluation that claimant could consider to be too low.  These 
 
         expenses therefore, cannot be allowed either as medical expense 
 
         under Iowa Code section 85.27 or an employee examination under 
 
         Iowa Code section 85.39.
 
         
 
              Dr. Rolek's fee for a medical report in the amount of $75 on 
 
         January 25, 1988, is an allowable cost of this proceeding under 
 
         Division of Industrial Services Rule 343-4.33(6).
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented, the following 
 
         findings of fact are made.
 
         
 
              That claimant was employed by employer from September 3, 
 
         1983, until February 3, 1989.
 
         
 
              That during that period of time claimant was a production 
 
         line employee and performed many different jobs which required 
 
         the repetitive use of her fingers, hands, wrists, elbows, arms, 
 
         shoulders, neck and back.
 
         
 
              That claimant was treated on numerous occasions for these 
 
         complaints at the employer's medical facility, with local doctors 
 
         and with specialists in Des Moines.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That the pattern of multiple treatments each year 
 
         demonstrate a cumulative injury from the repeated use, overuse 
 
         and abuse of these various body parts.
 
         
 
              That Dr. Grundberg permanently restricted claimant from 
 
         operating the band saw.
 
         
 
              That the last entry on claimant's medical record with the 
 
         company.shows that she was restricted from bending, stooping and 
 
         lifting more than 15 pounds and that she was to take a 15 minute 
 
         break every hour.
 
         
 
              That Dr. Rolek stated that claimant sustained a 16 percent 
 
         impairment to her neck and upper extremities and a 12 percent 
 
         impairment to her lower back based on the Guides to the 
 
         Evaluation of Permanent Impairment published by the American 
 
         Medical Association.
 
         
 
              That Dr. Winston and Dr. Wirtz stated that as long as
 
         
 
         
 
         
 
         TASLER VS. OSCAR MAYER FOODS CORP.
 
         Page 21
 
         
 
         
 
         claimant continued to perform production line work for employer 
 
         she would continue to have difficulties.  Dr. Rolek said she 
 
         would become worse.
 
         
 
              That Dr. Brenton recommended different work that did not 
 
         require repetitive and vigorous use of her upper extremities.
 
         
 
              That several doctors told claimant to stop doing repetitive 
 
         production line work.
 
         
 
              That claimant is 31 years old and has a high school 
 
         education.
 
         
 
              That claimant is young and bright and is enrolled in the 
 
         area community college.
 
         
 
              That claimant sustained an industrial disability to the body 
 
         as a whole in the amount of 15 percent.
 
         
 
              That the injury date is determined to be February 3, 1989, 
 
         her last day of employment with employer.
 
         
 
              That the rate of compensation is determined to be $271.76 
 
         per week.
 
         
 
              That claimant is entitled to $107 in allowable unpaid 
 
         medical expenses.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              That Dr. Rolek's charge in the amount of $75 for a medical 
 
         report dated January 25, 1988, is an allowable cost of this 
 
         action.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the legal 
 
         authorities discussed, the following conclusions of law are made.
 
         
 
              That claimant sustained a cumulative injury to her back, 
 
         neck, shoulders, arms, elbows, wrists, hands and fingers which 
 
         arose out of and in the course of her employment with employer.
 
         
 
              That the injury was the cause of permanent impairment 
 
         determined by Dr. Rolek and the cause of the work restrictions 
 
         determined by Dr. Grundberg and Dr. Sohn.
 
         
 
              That claimant has sustained a 15 percent industrial 
 
         disability to the body as a whole.
 
         
 
              That claimant is  entitled to the payment of $107 in medical 
 
         expenses.
 
         
 
              That claimant is not entitled to the payment of her other 
 
         unpaid medical expenses under Iowa Code section 85.39.
 
         
 
         
 
         
 
         TASLER VS. OSCAR MAYER FOODS CORP.
 
         Page 22
 
         
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendant pay to claimant seventy-five (75) weeks of 
 
         permanent partial disability benefits at the rate of two hundred 
 
         seventy-one and 76/100 dollars ($271.76) per week in the total 
 
         amount of twenty thousand three hundred eighty-two dollars 
 
         ($20,382) commencing on February 3, 1989.
 
         
 
              That all accrued amounts are to be paid in a lump sum.
 
         
 
              That defendant pay to claimant one hundred seven dollars 
 
         ($107) in unpaid medical expenses.
 
         
 
              That defendant pay the costs of this action, including Dr. 
 
         Rolek's seventy-five dollar ($75) fee for a medical report, as 
 
         well as, the cost of the transcript pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
              That defendant file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
              Signed and filed this 31st day of August, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                         WALTER R. McMANUS, JR.
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Robert E. McKinney
 
         Mr. Wayne H. McKinney, Jr.
 
         Attorneys at Law
 
         480 6th St.
 
         PO Box 209
 
         Waukee, IA 50263
 
         
 
         Mr. Harry Dahl
 
         Attorney at Law
 
         974 - 73rd St. STE 16
 
         Des Moines, IA 50312
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1106; 1108.50; 1401; 1402.20; 
 
                                         1402.30; 1402.40; 1402.60; 2209; 
 
                                         1803; 2500
 
                                         Filed August 31, 1989 
 
                                         Walter R. McManus, Jr.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DEBBIE TASLER,
 
         
 
              Claimant,                  File Nos.    843209
 
                                                      841036
 
          VS.                                         848406
 
                                                      851714
 
          OSCAR MAYER FOODS CORP.,                    888745
 
          
 
              Employer,                  A R B I T R A T I 0 N
 
              Self-Insured,
 
              Defendant.                    D E C I S I 0 N
 
         
 
         
 
         1106; 1108.50; 1401; 1402.20; 1402.30; 1402.40;  1402.60;  2209
 
         
 
              Claimant did not prove injury on any one of five dates 
 
         alleged, but did prove cumulative injury to her neck, back, 
 
         shoulders, arms, wrists, hands and fingers from repetitive work 
 
         in meat processing over a five and one-half year period.  Company 
 
         medical records reflected 20, 30 and 40 times a year that 
 
         claimant was treated for these problems plus numerous trips to 
 
         various doctors and physical therapists for treatment.  Claimant 
 
         never lost significant time from work and therefore, the date of 
 
         injury was determined to be the day the plant closed as the date 
 
         most analogous to McKeever.
 
         
 
         1803
 
         
 
              Claimant awarded 15 percent industrial disability based on 
 
         permanent impairment rating of 16 percent to the neck and upper 
 
         extremities and 12 percent to the lower back; permanent 
 
         restrictions from using the band saw; and no bending, stooping 
 
         and lifting more than 15 pounds and a 15 minute break every hour.  
 
         Most of the doctors recommended that claimant change jobs to 
 
         avoid continuation of these problems and continued treatment for 
 
         them.  Claimant was young (age 31) bright (an honor student) and 
 
         was enrolled in the area community college at the time of the 
 
         hearing.
 
         
 
         2500
 
         
 
              Claimant awarded some unpaid medical expenses and denied 
 
         others because they were for evaluation and not for treatment.  
 
         Claimant was not allowed these evaluation expenses as an Iowa
 
         
 
         TASLER VS.  OSCAR MAYER FOODS CORP.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 2
 
         
 
         
 
         Code section 85.39 examination because at that point in time an 
 
         employer doctor had not given any evaluation and therefore, there 
 
         was no evaluation that claimant could consider as too low.