before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SALLY A. CARSTENS,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 843220
 
            FARMLAND FOODS,               :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY CO.,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 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.
 
            Signed and filed this ____ day of April, 1990.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                             DAVID E. LINQUIST
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Sheldon M. Gallner
 
            Attorney at Law
 
            803 3rd Ave
 
            P.O. BOX 1588
 
            Council Bluffs, Iowa 51502
 
            
 
            Ms. Judith Ann Higgs
 
            Attorney at Law
 
            701 Pierce St., Ste. 200
 
            P.O. Box 3086
 
            Sioux City, Iowa 51102
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-9998
 
                                          Filed April 16, 1990
 
                                          DAVID E. LINQUIST
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SALLY A. CARSTENS,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 843220
 
            FARMLAND FOODS,               :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY CO.,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-9998 
 
            Deputy's decision summarily affirmed on appeal
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         SALLY A. CARSTENS,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                 File No. 843220
 
         FARMLAND FOODS,
 
                                               A R B I T R A T I O N
 
              Employer,
 
                                                 D E C I S I O N
 
         and
 
                                                      F I L E D
 
         AETNA CASUALTY & SURETY,
 
         COMPANY,                                  DEC 19 1989
 
         
 
              Insurance Carrier             IOWA INDUSTRIAL COMMISSIONER
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Sally 
 
         Carstens, claimant, against Farmland Foods, employer, and Aetna 
 
         Casualty & Surety, insurance carrier, to recover benefits under 
 
         the Iowa Workers' Compensation Act as a result of an injury 
 
         sustained on January 23, 1987.  This matter came on for hearing 
 
         before the undersigned deputy industrial commissioner on November 
 
         18, 1988 and was considered fully submitted at the close of the 
 
         hearing.  The record in this case consists of the testimony of 
 
         claimant, Barbara Kohnekamp, Charles Eggers, and Nancy Wiese; 
 
         joint exhibits 1 through 55, inclusive, and claimant's exhibits A 
 
         through E, inclusive.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report and order submitted and 
 
         approved November 18, 1988, the following issues are presented 
 
         for determination:
 
         
 
              1.  Whether the injury of January 23, 1987 is the cause of 
 
         the disability on which claimant now bases her claim;
 
              
 
              2.  Claimant's entitlement to weekly benefits including 
 
         temporary total disability/healing period, and permanent partial 
 
         disability benefits, if any;
 
         
 
              3.  Claimant's entitlement to certain medical benefits 
 
         pursuant to Iowa Code section 85.27; and
 
              
 
              4.  Whether claimant has made a timely claim under Iowa Code 
 
         section 85.26.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
                                 FACTS PRESENTED
 
              
 
              Claimant testified she began working for defendant employer 
 
         in 1979 and worked in the kitchen for approximately five years 
 
         "doing whatever job" there was to do in the kitchen including 
 
         arranging bacon.  Claimant stated that it was after she first did 
 
         this job in 1983 that she felt a strain in her neck and in her 
 
         shoulders and that she eventually underwent carpal tunnel 
 
         syndrome surgery on her right hand.  Claimant recalled she was 
 
         off work for four to six weeks, received workers' compensation 
 
         benefits and that when she returned to work it was to her regular 
 
         job of "bagging" or pushing a box of bags weighing 45 to 65 
 
         pounds from a right belt to a left belt.  Claimant explained that 
 
         although she felt some pain and discomfort while working in the 
 
         kitchen, once she moved into the Cry-O-Vac department her pain 
 
         got worse as she was working more overtime hours.
 
              
 
              Claimant recalled that in December of 1986 she had pain in 
 
         both arms, both shoulders, and across the back with tingling in 
 
         her right arm into the shoulder, over to the left shoulder, and 
 
         that she was also experiencing headaches.  Claimant stated she 
 
         first saw a physician for these problems in the fall of 1985 and 
 
         that by December of 1986 her physician did not want her to work 
 
         for defendant and that he took her off work for one week.  
 
         Claimant explained that when she returned to work she was put on 
 
         light duty for awhile but that she could not tolerate the work.  
 
         Claimant testified that on January 23, 1987, she "could not keep 
 
         the line going anymore" due to the problems with her neck, 
 
         shoulders and headaches and that she returned to see her doctor, 
 
         D. W. Crabb. Claimant offered that Dr. Crabb sent her to see 
 
         Maurice P. Margules, M.D., and that although the "company did not 
 
         want [her] to see" Dr. Margules, claimant kept her appointment 
 
         and subsequently underwent a myelogram.  Claimant testified she 
 
         saw Dr. Margules again in September of 1987, at which time he 
 
         advised her he could not allow her to return to work with 
 
         defendant.
 
              
 
              Claimant testified that on September 14, 1987, she went to 
 
         see defendant with a "light duty slip" and gave it to a "gal" in 
 
         the office who advised that the company would get back to her. 
 
         Claimant recalled that two or three days later she went out to 
 
         the plant and the superintendent advised her the company had 
 
         decided to "terminate" her.  Claimant maintained that there are 
 
         jobs with defendant that are within her capabilities and that she 
 
         could have returned to work with defendant had a position been 
 
         offered.
 
         
 
              Claimant testified she is currently employed as a cook for a 
 
         nursing home, a job which pays $4.00 per hour and has no 
 
         insurance benefits.  Claimant had been earning $9.39 per hour 
 
         with defendant and had life and health insurance benefits.  
 
         Claimant expressed her desire to seek retraining as a dietary 
 
         assistant at Western Iowa Tech but maintained she cannot both go 
 
         to school and maintain employment.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              On cross-examination, claimant testified that she first 
 
         noticed her shoulder strain in 1983, that in January of 1987 she 
 
         was not having any physical symptoms she had not had before, and 
 
         that between January and September 1987, she did not notice any 
 
         improvement in her condition.  Claimant acknowledged she 
 
         "probably" has had headaches for a number of years, underwent 
 
         physical therapy in 1982 and had ultrasound testing on her left 
 
         and right shoulders.  Claimant could not recall if she had any 
 
         neck problems when she had the carpal tunnel surgery performed. 
 
         Claimant admitted to a September 1984 car accident wherein she 
 
         cut her chin, bruised her left elbow and probably bruised her 
 
         head. Claimant recalled she underwent chiropractic manipulation 
 
         at that time for her spine "starting in the middle and went up" 
 
         but could not state whether or not she had any treatment for her 
 
         shoulders
 
              
 
              Claimant could not specifically recall when she was first 
 
         told by Dr. Crabb to "get out of the packing plant" but asserted 
 
         it was when she was working on the bacon line and started to have 
 
         problems with her neck and shoulders.  Claimant explained that 
 
         arranging bacon was most bothersome to her.
 
         
 
              Claimant acknowledged she suggested to Dr. Crabb she wanted 
 
         to see Dr. Margules, that she did not speak with defendant about 
 
         going to see Dr. Margules, that the insurance company advised her 
 
         it would not pay the cost of her treatment with him and that 
 
         after receiving written notification that Dr. Margules' treatment 
 
         would not be considered authorized, claimant continued to see 
 
         him. Claimant acknowledged the only treatment Dr. Margules 
 
         provided was aspirin.
 
              
 
              Barbara Kohnekamp, who identified herself as an employee of 
 
         defendant not presently working for medical reasons, testified 
 
         she worked in the Cry-o-Vac area a total of eight years, four 
 
         years with claimant, and that during that period of time the 
 
         output for work standard increased "significantly."  Ms. 
 
         Kohnekamp stated it was "quite obvious" claimant was having 
 
         trouble doing the job which required repetitive movement of the 
 
         left and right shoulders.
 
         
 
              Charles Eggers, who identified himself as employed by 
 
         defendant as a supervisor for a number of departments, including 
 
         Cry-O-Vac, testified that over the eight or nine years he had 
 
         been supervisor there, there had been no change in the work 
 
         standards. On cross-examination, Mr. Eggers stated he has 
 
         observed claimant since she began her employment and that 
 
         although claimant had a "tough time" making the standard at 
 
         first, which he attributed to a problem with motivation, claimant 
 
         eventually got better and made the standard.  Mr. Eggers 
 
         explained that each shift is running more meat but since the 
 
         hours in the plant have increased the pieces per minute have not 
 
         increased.
 
         
 
              Nancy Wiese, R.N., who identified herself as the day plant 
 
         nurse, testified that claimant has been sent to Drs. Soll, Troy, 
 
         Crabb, Flood, Mason, Tan Creti, and the Denison County Clinic, 
 
         that claimant never asked to see Dr. Margules, and that Dr. 
 
         Margules was not authorized to provide any care for claimant.  
 
         Ms. Wiese maintained that if claimant had asked to see a 
 
         neurosurgeon, she would have been sent to one that the company 
 
         used.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              The progress notes of D.W. Crabb, M.D., dated July 17, 1982, 
 
         report that:
 
         
 
                Sally states that her shoulder just isn't getting better. 
 
              She states that with the medication and ultrasound she feels 
 
              better and then goes to work and it just flares up again....
 
              
 
              Objective - shows the left shoulder to still be tender to 
 
              palpation.  Decreased range of motion.  Neurovascular 
 
              intact.
 
              
 
                 ....
 
              
 
              Plan - will continue with the Motrin, ultrasound treatments 
 
              and will put her off work and see how she does then.
 
              
 
         (Joint Exhibit 3, page 10)
 
         
 
              Dr. Crabb notes claimant was having a "slow progress" but 
 
         released her to return to work on or about August 6, 1982.  On 
 
         July 11, 1983, claimant was noted to have tendonitis and carpal 
 
         tunnel and cubital tunnel on the left with symptoms of carpal 
 
         tunnel on the right.  Claimant was referred to Dr. Ferlic, in 
 
         Omaha, and subsequently underwent carpal tunnel surgery on the 
 
         right on September 15, 1983.  Claimant was released to return to 
 
         work without restriction on or about October 27, 1983, and in 
 
         December of 1983 was diagnosed as having tendonitis in the right 
 
         hand and wrist, and in February of 1985 was found to have "a 
 
         little tendonitis and muscle pull in the right elbow area" for 
 
         both of which she was treated conservatively.  On May 21, 1985, 
 
         Dr. Crabb's office notes state:
 
         
 
                Sally Carstens is in to recheck her hand.  She is having 
 
              more problems with it.  Actually she has a number of 
 
              problems.  The overall underlying cause is a [sic] overload 
 
              of the hand and arm, but the symptoms that she has now are 
 
              being exhibited as a right cubital tunnel syndrome and 
 
              snapping fingers on the long and right fingers on the right 
 
              hand.  There are nodules on the tendons and the paresthesia 
 
              are in the distribution of the ulnar nerve over the little 
 
              and ring fingers and ulnar side of the palm.  She has a 
 
              positive Tinnel's sign along the course of the ulnar nerve. 
 
              Also radiates up towards the shoulder and into the 
 
              supraclavicular fossa area.  The snapping fingers bother her 
 
              off and on, especially in the morning when she first gets up 
 
              and at the end of a work day.  She may well need to have an 
 
              EMG on the ulnar nerve and possibly need to have surgery on 
 
              either the elbow to operate on the nerve or on the fingers 
 
              if she continues to have problems.  We will treat her again 
 
              with Tanderil 200 mg. and ice packs and again encourage her 
 
              to bid off onto a different job if possible or something 
 
              else.
 
         
 
                Although, she says that she has to continue to work to 
 
              try and get the kids through school etc. and the living 
 
              expenses. We will recheck her as necessary.  We will send 
 
              her back to work without any restrictions.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
         (Jt. Ex. 3, p. 5, 4)
 
         
 
              Claimant continued to complain of shoulder problems and on 
 
         December 30, 1986, Dr. Crabb opined:
 
         
 
                Sally Carstens has a lot myofascitis in the shoulder and 
 
              neck and elbows from her work of bagging.  We will give her 
 
              ultrasounds and put her on Naprosyn 500 b.i.d. and keep her 
 
              off work until Monday and let her return and when she goes 
 
              back she will need to be on a different job.
 
              
 
         (Jt. Ex. 3, p. 3)
 
         
 
              Claimant was released to return to work on January 5, 1986, 
 
         and on January 21, 1987, Dr. Crabb reported:  "Sally Carstens 
 
         lawyer has asked her to be referred to Dr. Margules so we took 
 
         care of that today."  (Jt. Ex. 3, p. 2) Dr. Crabb restricted 
 
         claimant from work on January 22, 1987, the date claimant was to 
 
         see Dr. Margules, and also noted that:  "W.C. won't pay for Sally 
 
         to see Dr. Margules."  (Jt. Ex. 3, p. 2)
 
         
 
              Claimant was seen by Maurice P. Margules, M.D., of Bluffs 
 
         Neurosurgical Associates, P.C., on January 23, 1987, and admitted 
 
         to Jennie Edmundson Memorial Hospital on January 25, to January 
 
         27, 1987, at which time Dr. Margules diagnosed claimant as 
 
         having:
 
         
 
              Arthromyofascial syndrome due to repeated microtrauma 
 
              sustained during the patient's employment.  Minimal 
 
              degenerative cervical disc diseases, C6-C7 interspace. 
 
              Minimal degenerative lumbar disc disease, L4-L5 interspace.
 
              
 
         (Jt. Ex. 13, p. 2)
 
         
 
              Dr. Margules placed claimant on a trial therapy of 
 
         Dexamethasone.  On March 27, 1987, Dr. Margules opined that 
 
         claimant's injury arose out of her employment and that claimant 
 
         was unable to return to her previous employment, recommending 
 
         that claimant seek training in order to obtain a sedentary type 
 
         of employment.  On September 14, 1987, claimant was able, 
 
         according to Dr. Margules, to return to light duty work with a 
 
         restriction that she not lift more than 25 pounds.
 
         
 
              On January 15, 1988, Dr. Margules reported:
 
         
 
               Mrs. Sally Carstens was last evaluated in this office on 
 
              January 15, 1988.  The patient's condition has remained 
 
              unchanged.  The patient is still complaining of pain at the 
 
              level of the cervical spine, both shoulders and both upper 
 
              extremities to the level of the elbows.
 
              
 
                As the result of the injury sustained while at work, as 
 
              the result of repeated micro-trauma, it is our opinion that 
 
              this patient has a partial permanent physical disability 
 
              which is rated at 5-10% of the body as a whole.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
         (Jt. Ex. 4)
 
         
 
              On September 28, 1984, claimant was involved in an accident 
 
         which resulted in a laceration to her chin, contusions, a 
 
         laceration to her left elbow, and a cephalohematoma.  Claimant 
 
         was treated for hyperflexion and hyperextension of both the 
 
         cervical and thoracic spine and cervicobrachial syndrome.
 
         
 
              During September and October 1985, claimant was seen by 
 
         Robert Soll with a diagnosis of "myalgia, right shoulder and 
 
         neck."  On October 10, 1985, claimant was restricted from 
 
         lifting, pulling or any other activity using her right arm which 
 
         remained in effect until she was released to "full-time work on 
 
         October 22, 1985."
 
         
 
              Claimant was evaluated by Joel T. Cotton, M.D., on April 28, 
 
         1987, in reference to "bilateral shoulder and neck pain."  Dr. 
 
         Cotton reported his clinical impression as:
 
         
 
              This patient's neurological examination is normal.  There is 
 
              no evidence in my opinion of past or present damage to this 
 
              individual's spinal cord or cervical nerve roots. She does 
 
              not specifically have a "pinched nerve" in her neck.  A 
 
              carpal tunnel syndrome is not responsible for this 
 
              individual's symptoms at this time.  The previous carpal 
 
              tunnel syndrome treated surgically is no longer present.  
 
              Her current symptoms, in my opinion, are not the result of 
 
              "degenerative cervical disk disease."  Her pain appears to 
 
              originate in the area of the shoulders and there may be an 
 
              orthopedic explanation for this.  It is not neurological, 
 
              however, in my opinion.  There is no indication for 
 
              neurosurgery in this individual in my opinion.  She has no 
 
              neurologic impairment.  There is no neurological disability. 
 
              There is no reason from a neurological standpoint to 
 
              restrict this individual's activity.  It is possible she 
 
              could improve with appropriate orthopedic evaluation and 
 
              treatment.
 
         
 
         (Jt. Ex. 7)
 
         
 
              Apparently, the last physician to have evaluated claimant 
 
         was John J. Dougherty, M.D., of Orthopaedic Associates of Sioux 
 
         City. On October 21, 1988, Dr. Dougherty reported that:
 
              
 
              Patient presented with complaints referable to neck, back, 
 
              shoulders.  Patient dates this back to 1983.  It began to 
 
              bother her in 1983.  She started working at Farmland 
 
              Industries in 1979.  Started on the bone line, apparently 
 
              then went to stacking bacon and hanging hams.  Apparently 
 
              was terminated in September, 1987.  She was apparently off 
 
              work from January, 1987 until September of 1987.  She was 
 
              treating off and on since 1983.  She had a carpal tunnel 
 
              release on the right hand in 1984 by Dr. Crabb, release of a 
 
              right trigger finger in 1985.  She was OK afterwards in her 
 
              hand, but her strength has remained decreased.  She has no 
 
              pain or numbness or swelling now like she did before.  Saw 
 
              Dr. Margules [sic] in January of 1987.  Told her she had 
 
              trauma from repetitive work, work related.  Had a myelogram 
 
              which was reported as negative.  Had medicine for awhile, 
 
              Naprosyn from Dr. Crabb.  She has seen no other doctors.  
 
              She has seen no doctors since September of 1987.  At the 
 
              present time, she is working as a cook at Eventide Nursing 
 
              Home.  Says it is no different.  Continues to bother her.  
 
              Bothers her a lot over the trapezius.  There is a spot that 
 
              is kind of numb.  She experiences some headaches at the base 
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              of the skull, primarily on the left side.  She is left 
 
              handed.  Right side is worse.  Had one cortisone injection 
 
              in the right shoulder, questionable if helped any.  She does 
 
              not participate in golf or tennis.  She does bowl 
 
              occasionally, but not regularly. She had no problems before 
 
              1979, denies any injuries.  Ran a grocery store before that 
 
              and had a one car accident with a cut on her chin only.  
 
              Doesn't remember when.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
            
 
         (Jt. Ex. l)
 
         
 
            Dr. Dougherty concluded:
 
            
 
            I don't think there was any specific injury in January of 
 
            1987.  That seems to be the date she was referred to Dr. 
 
            Margules [sic].  Apparently the myelogram really didn't show 
 
            us much.  Reviewing her x-rays, she does have, in my opinion, 
 
            a mild degenerated disc at 6-7, some degenerated disc at 7, 
 
            S-1 and also has narrowing at 5-6 compared to the other disc 
 
            spaces.
 
            
 
              I don't think she has.any significant problems with her 
 
            shoulders.  She does have some problems with the trapezius 
 
            muscles bilaterally.  Right is greater than that of the left. 
 
            Right elbow does have a mild restriction of pronation. 
 
            Otherwise, doesn't seem to significantly bother her.  She 
 
            apparently got a good result from her carpal tunnel release 
 
            and her right trigger finger.  I did not x-ray her low back. 
 
            I'm not sure about any narrowing at L-4-5.  Read Dr. Cotton's 
 
            report and I would concur, I don't think she has any 
 
            neurological problems at this point in time.  Apparently she 
 
            had an EMG which was normal.  Reviewed Dr. Crabb's report and 
 
            he's seen her for a long period of time.  This patient may 
 
            present with some myofascial symptoms, but I would be 
 
            inclined to think that most of her complaints are probably 
 
            referred pain from her cervical spine.  I read the 
 
            description of her job.  Arthromyofascial syndrome is a 
 
            rather lengthy diagnosis and I don't think we can say arthro.  
 
            There is a myofascial syndrome which is a difficult 
 
            diagnosis.  Perhaps some of her problem may be related to 
 
            some of this.  Again, she really has no specific injury dated 
 
            January of 1987, so I think if some of this is work related, 
 
            it is of longstanding duration.  I don't think the 
 
            degenerative changes in her neck are related to her work.  I 
 
            would be inclined to think that the big part of her problem 
 
            is related to this.
 
                      
 
         (Jt. Ex. l)
 
         
 
              With regard to functional impairment, Dr. Dougherty opined:
 
              
 
              As far as functional impairment, I don't think we can say 
 
              she has any functional impairment short of the fact that she 
 
              says it bothers her and, of course, this is a subjective 
 
              complaint.  Seemed to get a good result from her carpal 
 
              tunnel and I think her range of motion is adequate in all 
 
              her joints with the exception that she has some restriction 
 
              of motion in the neck, but I don't necessarily think that is 
 
              a functional impairment.  She does have minimal decreased 
 
              pronation.  I would be inclined to think the functional 
 
              impairment is probably about the same as it is going to 
 
              stay. I think it is primarily based at the base of the neck 
 
              and there is no definite injury of 1987.  I don't 
 
              necessarily think she needs to be under any restrictions.  I 
 
              think she should just do what she feels she is capable of 
 
              doing.  I would be inclined to think I would limit her by 
 
              excessive bending and lifting.  I think she could do light 
 
              work.  I don't know as light repetitive work will make her 
 
              any worse. I would feel, based on what I can find, that 
 
              perhaps she is entitled to maybe 5% permanent partial 
 
              impairment of the body.  This is related primarily to the 
 
              degenerative changes in her neck and probably referred pain 
 
              into the base of the neck bilaterally.  How much of this is 
 
              related to her repetitive work at Farmland is difficult to 
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              state.  Also, I don't think we can relate this to any 
 
              significant incident, especially not any incident that I got 
 
              a history of in January, 1987.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
                      
 
         (Jt. Ex. 1, p. 2)
 
         
 
                           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(1).
 
              
 
              The parties have stipulated and agreed that on January 23, 
 
         1987, claimant sustained an injury arising out of and in the 
 
         course of her employment.  Claimant filed her petition seeking 
 
         benefits on account of that injury on March 16, 1987.  
 
         Defendants' assertion that claimant's claim is barred is clearly 
 
         without merit.  Iowa Code section 85.26(1) provides:
 
         
 
                An original proceeding for benefits under this chapter or 
 
              chapter 85A, 85B, or 86, shall not be maintained in any 
 
              contested case unless the proceeding is commenced within two 
 
              years from the date of the occurrence of the injury for 
 
              which benefits are claimed or, if weekly compensation 
 
              benefits are paid under section 86.13, within three years 
 
              from the date of the last payment of weekly compensation 
 
              benefits.
 
              
 
              Defendants agree claimant sustained an injury on the date 
 
         pled.  Iowa Code section 85.26 is with regard to the injury date 
 
         pled.  Claimant filed her claim within the statutorily prescribed 
 
         period and, therefore, defendants' claim must fail.
 
         
 
              Defendants' assertion, however, is considered to be one of 
 
         whether claimant's disability is causally connected to the injury 
 
         of January 23, 1987, as stipulated.
 
              
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of January 23, 1987 is causally 
 
         related to the disability on which she now bases her claim.  
 
         Bodish v. Fischer Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. 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).
 
         
 
              Expert medical evidence must be considered with all other 
 
         evidence introduced bearing on the causal connection.  Burt, 247 
 
         Iowa 691, 73 N.W.2d 732.  The opinion of experts need not be 
 
         couched in definite, positive or unequivocal language.  Sondag v. 
 
         Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, the expert 
 
         opinion may be accepted or rejected, in whole or in part, by the 
 
         trier of fact.  Id. at 907.  Further, the weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish, 257 Iowa 516, 133 
 
         N.W.2d 867.  See also Musselman v. Central Telephone Co., 261 
 
         Iowa 352, 154 N.W.2d 128 (1967).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              There can be no dispute that claimant has suffered from 
 
         shoulder pain, at a minimum, for a number of years.  Indeed, in 
 
         light of the number of times and length of time claimant has been 
 
         off work due to shoulder problems, claimant may be considered to 
 
         have suffered from multiple cumulative injuries under the 
 
         doctrine recently discussed by the industrial commissioner in the 
 
         case of Babe v. Greyhound Lines. Inc., file numbers 706132, 
 
         790714 (Appeal Decision filed February 29, 1988).
 
              
 
              However, claimant must establish that the disability on 
 
         which she now bases her claim is causally connected to the injury 
 
         of January 23, 1987.  As the question of causal connection is 
 
         essentially within the domain of expert testimony, attention is 
 
         first focused on the medical evidence presented.
 
              
 
              Dr. Margules concluded that claimant suffers from 
 
         arthromyofascial syndrome due to repeated micro-trauma sustained 
 
         "during" claimant's employment.  Dr. Margules does not causally 
 
         connect claimant's problems to an injury on January 23, 1987.  As 
 
         already noted, claimant has had these problems for some time and 
 
         has remained off work prior to January 23, 1987 for periods in 
 
         excess of three days.  In addition, Dr. Margules' neurological 
 
         examination produced no abnormal findings.  Claimant's 
 
         extremities were normal.  Although claimant was noted to have an 
 
         inability to raise her arms above horizontal, this is a 
 
         subjective undertaking on claimant's part.  Claimant was noted to 
 
         have pain in the trapezius muscle, again, subjective.  A 
 
         myelogram was performed which showed minimal disc degeneration at 
 
         L4-L5 and C6-C7. Standard x-rays evidenced narrowing at C5-C6 and 
 
         C6-C7 with mild osteophyte formation at the latter level.  
 
         Neither of these conditions does Dr. Margules causally connect to 
 
         claimant's employment or to an injury occurring January 23, 1987.  
 
         Nerve conduction studies of both median and right ulnar nerves 
 
         were normal as was the electromyographical sampling of the right 
 
         upper extremity and shoulder muscles.
 
              
 
              In light of all the negative objective findings, the 
 
         undersigned has difficulty with Dr. Margules' primary diagnosis.
 
              
 
              Dr. Cotton's neurological examination was normal with no 
 
         evidence of past or present damage to claimant's spinal cord or 
 
         cervical nerve root and no neurologic impairment.
 
              
 
              Dr. Dougherty cannot relate claimant's impairment, if there 
 
         is any, to anything that may have occurred in January of 1987.
 
              
 
              Based on the above, the undersigned would conclude that the 
 
         greater weight of medical evidence fails to establish a causal 
 
         connection between the disability on which claimant now bases her 
 
         claim and the injury of January 23, 1987.  Other evidence in the 
 
         record, of a nonmedical nature, also does not establish a causal 
 
         connection.  Therefore, claimant is not entitled to any weekly 
 
         benefits as a result of this proceeding.
 
              
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              Iowa Code section 85.27 provides:
 
              
 
                 The employer, for all injuries compensable under this 
 
              chapter or chapter 85A, shall furnish reasonable surgical, 
 
              medical, dental, osteopathic, chiropractic, podiatric, 
 
              physical rehabilitation, nursing, ambulance and hospital 
 
              services and supplies therefor and shall allow reasonably 
 
              necessary transportation expenses incurred for such 
 
              services.
 
                   
 
              Claimant requests payment of the medical expenses incurred 
 
         with Dr. Margules.  Defendants have admitted claimant sustained 
 
         an injury.  Concomitant with the employer's admission of 
 
         liability is the employer's prerogative to choose the medical 
 
         care.  The undersigned is unable to order defendants to pay for 
 
         claimant's medical expenses incurred with Dr. Margules since the 
 
         record clearly establishes such expenses do not constitute 
 
         authorized medical care under the statute.  First, claimant's 
 
         referral to Dr. Margules came about only as a result of either 
 
         her and/or her attorney's request.  Dr. Crabb, whom defendants 
 
         authorized to care for claimant, did not initiate the referral.  
 
         Second, claimant was aware, immediately, that her care with Dr. 
 
         Margules would not be considered authorized by defendants and 
 
         therefore would not be paid for by defendants.  Third, Dr. 
 
         Margules care has not been shown to be causally connected to 
 
         claimant's injury of January 23, 1987, and, fourth, it does not 
 
         appear as though Dr. Margules' care improved claimant's condition 
 
         in any way.  Accordingly, claimant shall take nothing as a result 
 
         of these proceedings.
 
              
 
                                 FINDINGS OF FACT
 
              
 
              Wherefore, based on the evidence presented, the following 
 
         findings of fact are made:
 
              
 
              1.  Claimant sustained an injury which arose out of and in 
 
         the course of her employment on January 23, 1987.
 
              
 
              2.  Claimant had experienced pain in her shoulder since 1983 
 
              and had been off work as a result thereof a number of times.
 
              
 
              3.  No causal connection was shown to exist between the 
 
              injury of January 23, 1987 and the disability on which 
 
              claimant based her claim.
 
              
 
              4.  Defendants admitted claimant sustained an injury arising 
 
              out of and in the course of her employment and have the 
 
              right to choose the medical care.
 
              
 
              5.  Defendants did not authorize the care of Dr. Margules.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Therefore, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              1.  Claimant has failed to show a causal connection between 
 
         the injury of January 23, 1987 and the disability on which she 
 
         bases her claim.
 
              
 
              2.  Claimant has failed to show any entitlement to medical 
 
         benefits under Iowa Code section 85.27 with respect to the care 
 
         of Dr. Margules.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
              
 
              Claimant shall take nothing as a result of these 
 
         proceedings.
 
              
 
              Costs are assessed against defendants pursuant to Division 
 
         of Industrial Services Rule 343-4.33.
 
              
 
              Signed and filed this 19th day of December, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                         DEBORAH A. DUBIK
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr Sheldon M Gallner
 
         Attorney at Law
 
         803 3rd Ave
 
         P O Box 1588
 
         Council Bluffs, IA  51502
 
         
 
         Ms Judith Ann Higgs
 
         Attorney at Law
 
         701 Pierce St Ste 200
 
         P O Box 3086
 
         Sioux City, IA  51102
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         
 
         
 
                                              51400
 
                                              Filed December 19, 1989
 
                                              Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         SALLY A. CARSTENS,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                               File No. 843220
 
         FARMLAND FOODS,
 
                                             A R B I T R A T I O N
 
              Employer,
 
                                               D E C I S I O N
 
         and
 
         
 
         AETNA CASUALTY & SURETY,
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
              
 
              
 
              51400
 
         
 
              Claimant failed to show causal connection between injury and 
 
         disability where claimant has had problems for years and medical 
 
         experts fail to causally connect disability to injury on that 
 
         date or at that time.
 
              
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        
 
        RICHARD A. MUSTO,
 
        
 
            Claimant,
 
        
 
        vs.                              File No. 843223
 
        
 
        JOHN MORRELL & CO.,                 A P P E A L
 
        
 
            Employer,                    D E C I S I O N
 
        
 
        and
 
        
 
        NATIONAL UNION FIRE
 
        INSURANCE COMPANY,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
                                                
 
        Defendants appeal from an arbitration decision awarding claimant 
 
        disability benefits based upon an industrial disability of 50 
 
        percent as a result of an alleged injury on February 12, 1987.
 
        
 
        The record on appeal consists of the transcript of the 
 
        arbitration hearing and joint exhibits 1 through 24. Both parties 
 
        filed briefs on appeal.
 
        
 
                                      ISSUE
 
        
 
        The sole issue on appeal is the extent of claimant's permanent 
 
        disability.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The arbitration decision adequately and accurately reflects the 
 
        pertinent evidence and it will not be reiterated herein.
 
        
 
                                 APPLICABLE LAW
 
        
 
        The citations of law in the arbitration decision are appropriate 
 
        to the issues and evidence.
 
        
 
                                      ANALYSIS
 
        
 
        Claimant suffered an injury to his back which resulted in a 
 
        herniated disc at L4-5 level. A laminectomy and fusion
 
        
 
        MUSTO V. JOHN MORRELL & CO.
 
        Page 2
 
        
 
        
 
        was performed on April 17, 1987. Quentin J. Durward, M.D., who 
 
        performed the surgery, opined that claimant suffered a 10 percent 
 
        permanent partial impairment to the body as a whole from the 
 
        injury. John J. Dougherty, M.D., gave a functional capacity 
 
        assessment in December 1987. Dr. Dougherty indicated that 
 
        claimant should never lift or carry over 25 pounds, should only 
 

 
        
 
 
 
 
 
        occasionally lift or carry 11 to 24 pounds, and could frequently 
 
        lift or carry up to 10 pounds. Dr. Dougherty also indicated that 
 
        claimant should not crawl, climb or reach above his shoulder 
 
        level and only occasionally push, pull, bend or squat. Dr. 
 
        Dougherty further indicated that claimant would be able to work 
 
        over an eight hour day within these restrictions.
 
        
 
        Claimant has a non-military work history of heavy labor. At the 
 
        time of the arbitration hearing claimant had not returned to work 
 
        with defendant employer. Claimant has restrictions that will 
 
        limit jobs that are available to him. However, claimant does have 
 
        above average intelligence. The possibilities of sedentary 
 
        positions for claimant are better than other persons who do not 
 
        possess claimant's intelligence and aptitude for such work. 
 
        Claimant's reluctance to seek retraining is based upon his 
 
        feeling that he needs to support his family.
 
        
 
        Claimant was 39 years old when his work injury occurred. He 
 
        should be in the most productive working years of his life. The 
 
        vocational rehabilitation counselor hired by defendants opined 
 
        that claimant had a loss of earning capacity of 5 to 20 percent.
 
        
 
        In discussing whether claimant might be an odd-lot worker the 
 
        deputy wrote:
 
        
 
        In the case sub judice, claimant made a reasonable effort to find 
 
        suitable work. However, defendants have gone forward with the 
 
        evidence and offered an opinion by a vocational rehabilitation 
 
        expert that claimant is employable. The odd-lot doctrine does not 
 
        change the ultimate burden of proof and claimant has not shown 
 
        that he is only able to perform services which are so limited in 
 
        quality, dependability or quantity that a reasonable stable 
 
        market for them does not exist.
 
        
 
        The deputy correctly concluded that claimant was not 
 
        unemployable. Claimant's work history and his age indicate that 
 
        he has suffered a significant loss of earning capacity. However, 
 
        claimant does have the intelligence and the aptitude for 
 
        sedentary work. When all relevant factors are considered claimant 
 
        has suffered a loss of earning capacity of 40 percent.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Claimant was born September 20, 1947 and was 39 years old when 
 
        the work injury of February 12, 1987 occurred.
 
        
 
        MUSTO V. JOHN MORRELL & CO.
 
        Page 3
 
        
 
        
 
        2. The work injury of February 12, 1987, was a cause of a 10 
 
        percent permanent partial impairment to the body as a whole and 
 
        of permanent restrictions upon claimant's physical activity 
 
        consisting of no lifting or carrying over 24 pounds, only 
 
        occasional lifting or carrying of 11 to 24 pounds and only 
 
        repetitive or frequent lifting up to 10 pounds. Claimant can 
 
        never crawl, climb or reach above his shoulder level and only 
 
        occasionally can he push, bend or squat. However, claimant is 
 
        able to work over an eight hour day within these restrictions.
 
        
 
        3. Claimant has a high school education and completed two years 
 
        training in computer programming in the late 1960's. Claimant's 
 
        grades in school were poor and he barely got through the computer 
 
        programming course.
 
        
 
        4. Claimant has above average intelligence and aptitudes.
 

 
        
 
 
 
 
 
        
 
        5. Claimant has prior experience in clerical and sedentary work 
 
        in the U.S. Navy.
 
        
 
        6. Claimant's work history has been in heavy physical labor 
 
        outside of the military service.
 
        
 
        7. At the time of the arbitration hearing claimant had not 
 
        returned to work in any capacity.
 
        
 
        8. Claimant is employable in the area of his residence.
 
        
 
        9. Claimant has suffered a 40 percent loss of earning capacity as 
 
        a result of the work injury of February 12, 1987.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        Claimant has established he suffered an industrial disability of 
 
        40 percent as a result of the work injury of February 12, 1987.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed and modified.
 
        
 
                                      ORDER
 
        
 
        THEREFORE, it is ordered:
 
        
 
        That defendants pay to claimant two hundred (200) weeks of 
 
        permanent partial disability benefits at the rate of two hundred 
 
        eighty-nine and 16/100 dollars ($289.16) per week from October 
 
        18, 1987.
 
        
 
        That defendants pay to claimant healing period benefits from 
 
        April 16, 1987 through October 17, 1987 at the rate of two 
 
        hundred eighty-nine and 16/100 dollars ($289.16) per week.
 
        
 
        MUSTO V. JOHN MORRELL & CO.
 
        Page 3
 
        
 
        
 
        2. The work injury of February 12, 1987, was a cause of a 10 
 
        percent permanent partial impairment to the body as a whole and 
 
        of permanent restrictions upon claimant's physical activity 
 
        consisting of no lifting or carrying over 24 pounds, only 
 
        occasional lifting or carrying of 11 to 24 pounds and only 
 
        repetitive or frequent lifting up to 10 pounds. Claimant can 
 
        never crawl, climb or reach above his shoulder level and only 
 
        occasionally can he push, bend or squat. However, claimant is 
 
        able to work over an eight hour day within these restrictions.
 
        
 
        3. Claimant has a high school education and completed two years 
 
        training in computer programming in the late 1960's. Claimant's 
 
        grades in school were poor and he barely got through the computer 
 
        programming course.
 
        
 
        4. Claimant has above average intelligence and aptitudes.
 
        
 
        5. Claimant has prior experience in clerical and sedentary work 
 
        in the U.S. Navy.
 
        
 
        6. Claimant's work history has been in heavy physical labor 
 
        outside of the military service.
 
        
 
        7. At the time of the arbitration hearing claimant had not 
 
        returned to work in any capacity.
 
        
 
        8. Claimant is employable in the area of his residence.
 

 
        
 
 
 
 
 
        
 
        9. Claimant has suffered a 40 percent loss of earning capacity as 
 
        a result of the work injury of February 12, 1987.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        Claimant has established he suffered an industrial disability of 
 
        40 percent as a result of the work injury of February 12, 1987.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed and modified.
 
        
 
                                      ORDER
 
        
 
        THEREFORE, it is ordered:
 
        
 
        That defendants pay to claimant two hundred (200) weeks of 
 
        permanent partial disability benefits at the rate of two hundred 
 
        eighty-nine and 16/100 dollars ($289.16) per week from October 
 
        18, 1987.
 
        
 
        That defendants pay to claimant healing period benefits from 
 
        April 16, 1987 through October 17, 1987 at the rate of two 
 
        hundred eighty-nine and 16/100 dollars ($289.16) per week.
 
        
 
        MUSTO V. JOHN MORRELL & CO.
 
        Page 4
 
        
 
        
 
        That defendants pay accrued weekly benefits in a lump sum and 
 
        shall receive a credit against this award for all weekly benefits 
 
        previously paid.
 
        
 
        That defendants pay interest on benefits awarded herein as set 
 
        forth in Iowa Code section 85.30.
 
        
 
        That defendants pay the costs of this action including 
 
        transcription of arbitration hearing pursuant to Division of 
 
        Industrial Services 343-4.33.
 
        
 
        That defendants file activity reports on the payment of this 
 
        award as requested by this agency pursuant to Division of 
 
        Industrial Services Rule 343-3.1.
 
        
 
        Signed and filed this 25th day of April 1989
 
        
 
        
 
        
 
                                               DAVID E. LINQUIST
 
                                              INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RICHARD A. MUSTO,
 
         
 
              Claimant,                              File No. 843223
 
         
 
         vs.                                           A P P E A L
 
         
 
         JOHN MORRELL & CO.,                         D E C I S I O N
 
         
 
              Employer,
 
                                                        F I L E D
 
         and
 
                                                       APR 25 1989
 
         NATIONAL UNION FIRE
 
         INSURANCE COMPANY,                   IOWA INDUSTRIAL COMMISSIONER
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendants appeal from an arbitration decision awarding 
 
         claimant disability benefits based upon an industrial disability 
 
         of 50 percent as a result of an alleged injury on February 12, 
 
         1987.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing and joint exhibits 1 through 24.  Both 
 
         parties filed briefs on appeal.
 
         
 
                                   ISSUE
 
         
 
              The sole issue on appeal is the extent of claimant's 
 
         permanent disability.
 
         
 
                          REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be reiterated herein.
 
         
 
                             APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and evidence.
 
         
 
                               ANALYSIS
 
         
 
              Claimant suffered an injury to his back which resulted in a 
 
         herniated disc at L4-5 level.  A laminectomy and fusion was 
 
         performed on April 17, 1987.  Quentin J. Durward, M.D., who 
 
         performed the surgery, opined that claimant suffered a 10 percent 
 
                                                
 
                                                         
 
         permanent partial impairment to the body as a whole from the 
 
         injury.  John J. Dougherty, M.D., gave a functional capacity 
 
         assessment in December 1987.  Dr. Dougherty indicated that 
 
         claimant should never lift or carry over 25 pounds, should only 
 
         occasionally lift or carry 11 to 24 pounds, and could frequently 
 
         lift or carry up to 10 pounds.  Dr. Dougherty also indicated that 
 
         claimant should not crawl, climb or reach above his shoulder 
 
         level and only occasionally push, pull, bend or squat.  Dr. 
 
         Dougherty further indicated that claimant would be able to work 
 
         over an eight hour day within these restrictions.
 
         
 
              Claimant has a non-military work history of heavy labor.  At 
 
         the time of the arbitration hearing claimant had not returned to 
 
         work with defendant employer.  Claimant has restrictions that 
 
         will limit jobs that are available to him.  However, claimant 
 
         does have above average intelligence.  The possibilities of 
 
         sedentary positions for claimant are better than other persons 
 
         who do not possess claimant's intelligence and aptitude for such 
 
         work. Claimant's reluctance to seek retraining is based upon his 
 
         feeling that he needs to support his family.
 
         
 
              Claimant was 39 years old when his work injury occurred.  He 
 
         should be in the most productive working years of his life.  The 
 
         vocational rehabilitation counselor hired by defendants opined 
 
         that claimant had a loss of earning capacity of 5 to 20 percent.
 
         
 
              In discussing whether claimant might be an odd-lot worker 
 
         the deputy wrote:
 
         
 
         
 
                   In the case sub judice, claimant made a reasonable 
 
              effort to find suitable work.  However, defendants have gone 
 
              forward with the evidence and offered an opinion by a 
 
              vocational rehabilitation expert that claimant is 
 
              employable. The odd-lot doctrine does not change the 
 
              ultimate burden of proof and claimant has not shown that he 
 
              is only able to perform services which are so limited in 
 
              quality, dependability or quantity that a reasonable stable 
 
              market for them does not exist.
 
         
 
              The deputy correctly concluded that claimant was not 
 
         unemployable.  Claimant's work history and his age indicate that 
 
         he has suffered a significant loss of earning capacity.  However, 
 
         claimant does have the intelligence and the aptitude for 
 
         sedentary work.  When all relevant factors are considered 
 
         claimant has suffered a loss of earning capacity of 40 percent.
 
         
 
                           FINDINGS OF FACT
 
         
 
              1.  Claimant was born September 20, 1947 and was 39 years 
 
         old when the work injury of February 12, 1987 occurred.
 
         
 
              2.  The work injury of February 12, 1987, was a cause of a 
 
         10 percent permanent partial impairment to the body as a whole 
 
         and of permanent restrictions upon claimant's physical activity 
 
                                                
 
                                                         
 
         consisting of no lifting or carrying over 24 pounds, only 
 
         occasional lifting or carrying of 11 to 24 pounds and only 
 
         repetitive or frequent lifting up to 10 pounds.  Claimant can 
 
         never crawl, climb or reach above his shoulder level and only 
 
         occasionally can he push, bend or squat.  However, claimant is 
 
         able to work over an eight hour day within these restrictions.
 
         
 
              3.  Claimant has a high school education and completed two 
 
         years training in computer programming in the late 1960's. 
 
         Claimant's grades in school were poor and he barely got through 
 
         the computer programming course.
 
         
 
              4.  Claimant has above average intelligence and aptitudes.
 
         
 
              5.  Claimant has prior experience in clerical and sedentary 
 
         work in the U.S. Navy.
 
         
 
              6.  Claimant's work history has been in heavy physical labor 
 
         outside of the military service.
 
         
 
              7.  At the time of the arbitration hearing claimant had not 
 
         returned to work in any capacity.
 
         
 
              8.  Claimant is employable in the area of his residence.
 
         
 
              9.  Claimant has suffered a 40 percent loss of earning 
 
         capacity as a result of the work injury of February 12, 1987.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              Claimant has established he suffered an industrial 
 
         disability of 40 percent as a result of the work injury of 
 
         February 12, 1987.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
         modified.
 
         
 
                                   ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay to claimant two hundred (200) weeks of 
 
         permanent partial disability benefits at the rate of two hundred 
 
         eighty-nine and 16/100 dollars ($289.16) per week from October 
 
         18, 1987.
 
         
 
              That defendants pay to claimant healing period benefits from 
 
         April 16, 1987 through October 17, 1987 at the rate of two 
 
         hundred eighty-nine and 16/100 dollars ($289.16) per week.
 
         
 
              That defendants pay accrued weekly benefits in a lump sum 
 
         and shall receive a credit against this award for all weekly 
 
         benefits previously paid.
 
         
 
              That defendants pay interest on benefits awarded herein as 
 
         set forth in Iowa Code section 85.30.
 
                                                
 
                                                         
 
         
 
              That defendants pay the costs of this action including 
 
         transcription of arbitration hearing pursuant to Division of 
 
         Industrial Services 343-4.33.
 
         
 
              That defendants file activity reports on the payment of this 
 
         award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 25th day of April, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Harry H. Smith
 
         Attorney at Law
 
         P.O. Box 1194
 
         Sioux City, Iowa  51102
 
 
 
                               
 
                                                         
 
         
 
         Thomas M. Plaza
 
         Attorney at Law
 
         200 Home Federal Bldg.
 
         P.O. Box 3086
 
         Sioux City, Iowa  51102
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            51803 - 54100
 
                                            Filed April 25, 1989
 
                                            DAVID E. LINQUIST
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RICHARD A. MUSTO,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                    File No. 843223
 
         JOHN MORRELL & CO.,
 
                                                       A P P E A L
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         NATIONAL UNION FIRE
 
         INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         51803
 
         
 
              A meat packer, who was 39 years old at the time of the work 
 
         injury, had not returned to work in any capacity.  Claimant had 
 
         above average intelligence and aptitudes for sedentary work but 
 
         he also had rather significant work restrictions and a history of 
 
         heavy physical labor.  Claimant awarded benefits of 40 percent 
 
         industrial disability which was a modification of the deputy's 
 
         award.
 
         
 
         54100
 
         
 
              Defendants submitted sufficient evidence from a vocational 
 
         rehabilitation counselor to show that claimant was employable.
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         RICHARD A. MUSTO,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                     FILE NO. 843223
 
         
 
         JOHN MORRELL & COMPANY,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         NATIONAL UNION FIRE
 
         INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.,
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Richard A. 
 
         Musto, claimant, against John Morrell & Company, employer 
 
         (hereinafter referred to as Morrell), and National Union Fire 
 
         Insurance Company, insurance carrier, for workers' compensation 
 
         benefits as a result of an alleged injury on February 12, 1987.  
 
         On February 12, 1988, a hearing was held on claimant's petition 
 
         and the matter was considered fully submitted at the close of 
 
         this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing from claimant and 
 
         Patricia Conway.  The exhibits received into the evidence at the 
 
         hearing are listed in the prehearing report.  According to the 
 
         prehearing report, the parties have stipulated to the following 
 
         matters:
 
         
 
              1.  On February 12, 1987, claimant received an injury which 
 
         arose out of and in the course of his employment with Morrell.
 
         
 
              2.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits from this proceeding shall be $289.16 
 
         per week.
 
         
 
              3.  Claimant is entitled to healing period benefits from 
 
         April 16, 1987 through October 17, 1987.
 
         
 
              4.  The work injury was a cause of permanent industrial 
 
         disability to the body as a whole.
 
         
 

 
         
 
         
 
         
 
         MUSTO V. JOHN MORRELL & COMPANY
 
         Page   2
 
         
 
              5.  All requested medical benefits have been or will be 
 
         paid by defendants.
 
         
 
         
 
                                    ISSUE
 
         
 
              The only issue submitted to the undersigned by the parties 
 
         for determination in this proceeding is the extent of claimant's 
 
         entitlement to weekly benefits for permanent disability.
 
         
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              The following is a summary of the evidence presented in this 
 
         case.  For the sake of brevity, only the evidence most pertinent 
 
         to this decision is discussed.  Whether or not specifically 
 
         referred to in this summary, all of the evidence received at the 
 
         hearing was considered in arriving at this decision.  As will be 
 
         the case in any attempted summarization, conclusions about what 
 
         the evidence offered may show are inevitable.  Such conclusions, 
 
         if any, in the following summary should be considered as 
 
         preliminary findings of fact.
 
         
 
              Claimant is a 40 year old, permanently injured packinghouse 
 
         worker who, at least at the time of hearing, had not returned to 
 
         work in any capacity.  Claimant's injury involves his back.  
 
         Claimant testified that on February 12, 1987, while picking up a 
 
         basket full of meat weighing approximately 50 to 80 pounds he 
 
         developed pain in his low back radiating down his legs.  
 
         Subsequent to this incident, the pain grew gradually worse and 
 
         finally he sought treatment from William Krigsten, M.D. and 
 
         Milton Grossman, M.D. who placed claimant on light duty at 
 
         Morrell.  According to a medical report from Dr. Krigsten dated 
 
         April 20, 1987, claimant's treatment was conservative for a 
 
         possible defect in the "pars interartitularis at L4-5.O  In April 
 
         of 1987, claimant was referred to Quentin Durward, M.D., a 
 
         neurosurgeon and John J. Dougherty, M.D., an orthopedic surgeon.  
 
         Subsequent to continued conservative treatment and further tests 
 
         showing evidence of a herniated disc at L4-5 level of claimant's 
 
         spine, surgery was performed on claimant's back called a 
 
         laminectomy and fusion on April 17, 1987.  According to Dr. 
 
         Durward, claimant's healing period lasted a full six months 
 
         following this surgery.  After the six month period claimant has 
 
         released to return to work in a work hardening situation with 
 
         gradual increase in activity as tolerated.  However, Dr. Durward 
 
         stated that claimant should not lift over 25 pounds or be placed 
 
         in any job that required a lot of bending or twisting.  Dr. 
 
         Durward opined that claimant suffered a 10 percent permanent 
 
         partial impairment to the body as a whole from the injury.
 
         
 
              Claimant suffered a back injury while lifting at work in 
 
         1985 which required his absence from work, medical treatment and 
 
         bed rest for a few days.  Claimant testified that he was able to 
 
         return to work to full duty one week after the injury and he had 
 
         no further difficulties with his back until the work injury in 
 
         this case.
 
         
 
              While he was on light duty status following the February, 
 
         1987 injury, on March 9, 1987 claimant and his fellow employees 
 
         at Morrell went on strike as a result of a labor/management 
 

 
         
 
         
 
         
 
         MUSTO V. JOHN MORRELL & COMPANY
 
         Page   3
 
         
 
         dispute.  Claimant has not been employed in any capacity since 
 
         that time.
 
         
 
              Claimant is a high school graduate and completed a two year 
 
         course in computer programming at Western Iowa Tech in the late 
 
         1960's after his tour of duty in the U.S. Navy.  Claimant 
 
         testified that his high school grades were poor and that he 
 
         barely got through the computer course.  Claimant said that he 
 
         never utilized any of his computer training in employment or 
 
         otherwise since the 1960's and he has not received any updated 
 
         training in computer programming.
 
         
 
              Following his graduation from high school, claimant worked 
 
         for a few months in construction and in garbage collection.  
 
         Claimant spent six years in the navy, four years of which were on 
 
         active duty.  Claimant attended storekeeper school and "counted 
 
         bombs" in Vietnam.  Claimant served two years on a ship as a 
 
         storeroom clerk.  Claimant stated that he only acquired skills in 
 
         counting and some inventory procedures during his military 
 
         service.  Claimant attended Western Iowa Tech after his military 
 
         service as stated above.
 
         
 
              Claimant's first employment after attending Western Iowa 
 
         Tech was a meat packing job at Armour Foods.  Claimant held jobs 
 
         as a meat trimmer, loin grader, "hooked sides", and night 
 
         clean-up in the kill floor area.  Claimant said that he earned 
 
         $8.00 per hour in such work.  When the Sioux City plant closed in 
 
         1979, claimant transferred to an Armour plant in St. Joseph, 
 
         Missouri.  However, after a month he returned to Sioux City for 
 
         family reasons and worked for five months operating a heavy jack 
 
         hammer for an asphalt and cement contractor.  He earned $5.00 to 
 
         $6.00 per hour in this construction work.  Claimant then began 
 
         working for Iowa Beef in "pre-cut."  Claimant testified that he 
 
         suffered no significant injuries while performing any of this 
 
         prior meat packing work or in construction.
 
         
 
              In 1981, claimant left Iowa Beef to work for Siouxland 
 
         constructing a new meat packing plant.  After the plant was 
 
         built, the facility became Iowa Meats and was later sold to 
 
         Morrell.   Claimant worked in the same plant until the strike in 
 
         March 1987.  During his employment at this facility, claimant 
 
         worked in the loin trimming, loin grading and wrapping, side cut, 
 
         shoulder axe, box shop, and the carmel department.  Claimant 
 
         worked in the box shop the longest period of time.  This work 
 
         involved repetitive heavy lifting from 40 to 70 pounds.  Claimant 
 
         left the box room for a higher paying job as a cook in the carmel 
 
         department when Morrell began marketing cryogenically packed 
 
         pre-cooked meats.  Claimant testified that the cook job involved 
 
         very heavy work in emptying ashes, loading wood into the barbecue 
 
         ovens, preparation of tenderizing products, lifting baskets of 
 
         meat, lifting 50 pound buckets of ingredients and emptying grease 
 
         pans and carrying grease buckets weighing over 50 pounds.  It was 
 
         while performing this job that he incurred the February, 1987 
 
         injury.  At the time of the injury claimant had been earning 
 
         $8.50 per hour, approximately one dollar less than when he took 
 
         the cook job because of a plant wide wage cut that the union had 
 
         agreed to.  After claimant was placed on light duty following the 
 
         injury, claimant performed labeling work.  Claimant testified 
 
         that despite its light nature, the job caused him difficulties in 
 
         that the work was performed in a freezer at 32 degrees Fahrenheit 
 

 
         
 
         
 
         
 
         MUSTO V. JOHN MORRELL & COMPANY
 
         Page   4
 
         
 
         throughout the entire shift and the floor was constantly icy and 
 
         slick.  He said that the cold increased the pain and numbness in 
 
         his leg.
 
         
 
              After claimant's release to return to work in October, 1987, 
 
         defendants retained a vocational rehabilitation counselor, 
 
         Patricia Conway.  Conway first obtained a functional capacity 
 
         assessment from Dr. Dougherty in December, 1987.  According to 
 
         Dr. Dougherty, claimant could never lift or carry over 25 pounds, 
 
         only occasionally lift or carry 11 to 24 pounds and frequently 
 
         lift or carry only 10 pounds.  Dr. Dougherty also indicates that 
 
         claimant can never crawl, climb or reach above his shoulder level 
 
         and only occasionally push or pull, bend or squat.  Finally, the 
 
         doctor indicated that claimant would be able to work over an 
 
         eight hour day within these restrictions.
 
         
 
              After learning that claimant was interested in returning to 
 
         suitable work at Morrell's, Conway obtained for claimant an offer 
 
         from Morrell management to return to light duty work in the box 
 
         shop on January 18, 1988.  However, claimant declined this offer 
 
         because his fellow employees were still on strike and he did not 
 
         wish to cross the picket line.  Shortly before the hearing in 
 
         this case, the labor dispute at Morrell was settled and 
 
         apparently Morrell was about to return the strikers back to work.  
 
         However, when asked by Conway if the offer to claimant to return 
 
         to work still was valid after the strike, Morrell management 
 
         responded with "no comment.O
 
         
 
              Conway's testing of claimant indicated that he has a high 
 
         interest level in literature and clerical work.  GATB test 
 
         indicated that claimant has above average in intelligence and 
 
         general aptitude.  She believes that this testing indicates 
 
         possible employment as a librarian or as a newsreporter, although 
 
         she admitted that such jobs would require further schooling and 
 
         that schooling is not likely for claimant who has very limited 
 
         financial resources and a wife with health problems.  Conway 
 
         believes that claimant has a good potential for successful 
 
         retraining and for placement in alternative suitable employment 
 
         in that he possesses many transferable skills especially in the 
 
         clerical, inventory and computer work.  She states that his loss 
 
         of earning capacity earnings would only amount to about five or 
 
         20 percent from her analysis of the job service quarterly reports 
 
         although she did not elaborate on how she arrived at this figure.  
 
         Conway's plan was first to place claimant back at Morrell's.  If 
 
         that was not possible, she plans to place him in clerical or 
 
         shipping and receiving work.  Conway also expressed the belief 
 
         that it was possible for claimant to be a paralegal in that most 
 
         of the paralegal jobs in the Sioux City area allow for on-the-job 
 
         training.  Conway finally states that claimant is not an average 
 
         disabled person due to his above average intellectual and 
 
         educational abilities.
 
         
 
              Claimant testified that he was satisfied with Conway's help 
 
         but doubts defendants will continue paying for her assistance in 
 
         the future.  He believes that schooling is not realistic for him.  
 
         He would like to return to light duty at Morrell if offered a 
 
         job.  Claimant testified that he made an unsuccessful job search 
 
         at places of employment other than Morrell.  Claimant currently 
 
         participates in a weekly job club with other disabled persons who 
 
         are looking for work to discuss job search techniques and compare 
 

 
         
 
         
 
         
 
         MUSTO V. JOHN MORRELL & COMPANY
 
         Page   5
 
         
 
         notes on available work in the area.
 
         
 
              Claimant's appearance and demeanor at the hearing indicated 
 
         that he was testifying in a candid and truthful manner.
 
         
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant must establish by a preponderance of the evidence 
 
         the extent of weekly benefits for permanent disability to which 
 
         claimant is entitled.  As the claimant has shown that the work 
 
         injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors.  These factors include the employee's medical condition 
 
         prior to the injury, immediately after the injury and presently; 
 
         the situs of the injury, its severity and the length of healing 
 
         period; the work experience of the employee prior to the injury, 
 
         after the injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 
 
         N.W.2d 251, 257 (1963).  See Peterson v. Truck Haven Cafe, Inc., 
 
         (Appeal Decision, February 28, 1985).
 
         
 
              Claimant's medical condition before the work injury was 
 
         excellent and he had no functional impairments or ascertainable 
 
         disabilities.  Claimant apparently fully recovered from the 1985 
 
         back injury.  Prior to February, 1987, claimant was able to fully 
 
         perform physical tasks such as heavy lifting and repetitive 
 
         lifting, bending, twisting and stooping.
 
         
 
              Claimant's treating physician, Dr. Durward, has given 
 
         claimant a 10 percent permanent partial impairment rating to the 
 
         body as a whole and causally relates this to the work injury.  Of 
 
         greater significance to an industrial disability case is 
 
         claimant's activity restrictions.  Dr. Dougherty's restrictions 
 
         are very serious for a person whose only employment history has 
 
         been in heavy physical work.  Claimant will never be able to 
 
         return to his former meat packing work or to any other laboring 
 
         work, the work to which he is best suited given his past 
 
         experience.
 
         
 
              Claimant is 40 years of age and should be in the most 
 
         productive working years of his life.  His loss of future 
 

 
         
 
         
 
         
 
         MUSTO V. JOHN MORRELL & COMPANY
 
         Page   6
 
         
 
         earnings from employment.due to his disability is much more 
 
         severe than would be the case for a younger or older individual.  
 
         See Becke v. Turner-Busch, Inc., Thirty-Fourth Biennial Report of 
 
         the Iowa Industrial Commissioner 34 (1979) and Walton v. B & H 
 
         Tank Corp., II Iowa Industrial Commissioner Report 426 (1981).
 
         
 
              Claimant has shown motivation to seek other employment and 
 
         cooperated fully with the rehabilitation efforts that have been 
 
         offered to him to date.  However, none of these efforts have been 
 
         successful at the present time.
 
         
 
              Claimant has a high school education and exhibited above 
 
         average intelligence at the hearing.  From vocational testing, 
 
         claimant apparently possesses above average aptitudes for many 
 
         types of sedentary occupations.  However, additional schooling is 
 
         not a realistic possibility at the present time due to his family 
 
         situation.  Whether or not he will go to school and successfully 
 
         complete schooling to obtain a technical or professional job in 
 
         the future is too speculative at the present time to consider in 
 
         evaluating his current disability.
 
         
 
              The opinions as to claimant's potential loss of earnings by 
 
         the vocational rehabilitation counselor in this case was not 
 
         convincing as she did not explain how she arrived at her 
 
         figures.
 
         
 
              Although it was shown that claimant is capable of certain 
 
         types of light duty work, claimant requests an award of permanent 
 
         total disability due to the so-called "odd-lot" doctrine.  This 
 
         doctrine is a procedural device designed to shift the burden of 
 
         going forward with evidence as to claimant's employability to a 
 
         defendant employer in certain factual situations.  See Klein v. 
 
         Furnas Electric Co., 384 N.W.2d 370, 375 (Iowa 1986).  A worker 
 
         becomes an odd-lot employee when an injury makes a worker 
 
         incapable of obtaining employment in any well known branch of the 
 
         labor market.  Guyton v. Irving Jensen Co., 373 N.W.2d 101, 105 
 
         (Iowa 1985).  An odd-lot worker can only perform services that 
 
         are so limited in quality, dependability or quantity that a 
 
         reasonable stable market for them does not exist.  Id.  In 
 
         Guyton, the supreme court held that under the odd-lot doctrine, 
 
         there can be no presumption that merely because the worker is 
 
         physically able to do certain work, that such work is available.  
 
         When a worker makes a prima facie case of total disability by 
 
         producing substantial evidence that the worker is not employable 
 
         in the competitive labor market, the burden to produce evidence 
 
         shifts to the employer as to the availability of suitable work.  
 
         If the employer fails to produce such evidence and if the trier 
 
         of fact finds that the worker does fall into the odd-lot 
 
         category, the worker is entitled to a finding of total 
 
         disability.  Id at 106.
 
         
 
              In the case sub judice, claimant made a reasonable effort to 
 
         find suitable work.  However, defendants have gone forward with 
 
         the evidence and offered an opinion by a vocational 
 
         rehabilitation expert that claimant is employable.  The odd-lot 
 
         doctrine does not change the ultimate burden of proof and 
 
         claimant has not shown that he is only able to perform services 
 
         which are so limited in quality, dependability or quantity that a 
 
         reasonable stable market for them does not exist.  This does not 
 
         mean however, that claimant does not have a substantial loss of 
 

 
         
 
         
 
         
 
         MUSTO V. JOHN MORRELL & COMPANY
 
         Page   7
 
         
 
         earning capacity which must be adequately compensated in this 
 
         decision.
 
         
 
              After examination of all the factors of industrial 
 
         disability, it is found, as a matter of fact, that claimant has 
 
         suffered a 50 percent loss of earning capacity from his work 
 
         injury.  Based upon such a finding, claimant is entitled as a 
 
         matter of law to 250 weeks of permanent partial disability 
 
         benefits under Iowa Code section 85.34(2)(u) which is 50 percent 
 
         of 500 weeks, the maximum allowable number of weeks for an injury 
 
         to the body as a whole in that subsection.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              l.  Claimant was a credible witness.
 
         
 
              2.  The work injury of February 12, 1987, was a cause of a 
 
         10 percent permanent partial impairment to the body as a whole 
 
         and of permanent restrictions upon claimant's physical activity 
 
         consisting of no lifting or carrying over 24 pounds, only 
 
         occasional lifting or carrying of 11 to 24 pounds and only 
 
         repetitive or frequent lifting up to 10 pounds.  Claimant can 
 
         never crawl, climb or reach above his shoulder level and only 
 
         occasionally can he push, bend or squat.  However, claimant is 
 
         able to work over an eight hour day within these restrictions.
 
         
 

 
         
 
         
 
         
 
         MUSTO V. JOHN MORRELL & COMPANY
 
         Page   8
 
         
 
              3.  The work injury of February 12, 1987, and the resulting 
 
         permanent partial impairment was a cause of a 50 percent loss of 
 
         earning capacity.  Claimant is 40 years of age with a high school 
 
         education and two years training in computer programming.  
 
         Claimant's grades in school were poor and he barely got through 
 
         the computer programming course.  Claimant, however, does possess 
 
         above average intellectual skills and aptitudes.  Claimant has 
 
         prior experience in clerical and sedentary work in the U.S. Navy. 
 
          Claimant's only work history has been in heavy physical labor 
 
         employment outside of the military service.  Claimant is 
 
         employable in sedentary work in the area of his residence but at 
 
         a greatly reduced earnings capacity.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         entitlement to permanent partial disability benefits as awarded 
 
         below.
 
         
 
                                      ORDER
 
         
 
              1.  Defendants shall pay to claimant two hundred fifty (250) 
 
         weeks of permanent partial disability benefits at the rate of two 
 
         hundred eighty-nine and 16/100 ($289.16) per week from October 
 
         18, 1987.
 
         
 
              2.  Defendants shall pay to claimant healing period benefits 
 
         from April 16, 1987 through October 17, 1987 at the rate of two 
 
         hundred eighty-nine and 16/100 ($289.16) per week.
 
         
 
              3.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive a credit against this award for all weekly 
 
         benefits previously paid.
 
         
 
              4.  Defendants shall pay interest on benefits awarded herein 
 
         as set forth in Iowa Code section 85.30.
 
         
 
              5.  Defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services 343-4.33.
 
         
 
              6.  Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1
 
         
 
         
 
         
 
              Signed and filed this 31st day of March, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 

 
         
 
         
 
         
 
         MUSTO V. JOHN MORRELL & COMPANY
 
         Page   9
 
         
 
         
 
         Mr. Harry H. Smith
 
         Attorney at Law
 
         632-640 Badgerow Bldg.
 
         P. 0. Box 1194
 
         Sioux City, Iowa  51102
 
         
 
         Mr. Thomas M. Plaza
 
         Attorney at Law
 
         200 Home Federal Bldg.
 
         P. 0. Box 386
 
         Sioux City, Iowa 51102
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                1803
 
                                                Filed March 31, 1988
 
                                                LARRY P. WALSHIRE
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RICHARD A. MUSTO,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                   FILE NO. 843223
 
         JOHN MORRELL & COMPANY,
 
                                                A R B I T R A T I 0 N
 
              Employer,
 
                                                   D E C I S I 0 N
 
         and
 
         
 
         NATIONAL UNION FIRE
 
         INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1803
 
         
 
              A 40 year old meat packer who had not returned to work but 
 
         was found to be employable in a sedentary occupation in his 
 
         locality was awarded benefits for a 50 percent industrial 
 
         disability.
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARVIN LEININGER,
 
         
 
              Claimant,
 
                                                    FILE NO. 843228
 
         VS.
 
                                                 A R B I T R A T I 0 N
 
         JOHN MORRELL & COMPANY,
 
                                                    D E C I S I O N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Marvin 
 
         Leininger, claimant, against John Morrell & Company, employer 
 
         (hereinafter referred to as Morrell), for workers' compensation 
 
         benefits as a result of an alleged injury on March 1, 1985.  On 
 
         January 21, 1988, a hearing was held on claimant's petition and 
 
         the matter was considered fully submitted at the close of this 
 
         hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing only from claimant.  
 
         The exhibits received into the evidence at hearing are listed in 
 
         the prehearing report.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
              I.  Whether claimant received an injury in the form of an 
 
         occupational hearing loss under Iowa Code section 85B arising out 
 
         of and in the course of his employment at Morrell;
 
         
 
             II.  Whether claimant's claim for occupational hearing loss 
 
         is barred by the time limitation provisions of Iowa Code section 
 
         85.26     and the notice provisions of Iowa Code section 85.23; 
 
         and,
 
         
 
             III. The extent of claimant's entitlement to weekly 
 
         disability benefits.
 
         
 
                         SUMMARY OF THE EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  For the sake of brevity, only the evidence most pertinent 
 
         to this decision is discussed.  Whether or not specifically 
 

 
         
 
         
 
         
 
         LEININGER V. JOHN MORRELL & COMPANY
 
         Page   2
 
         
 
         
 
         referred to in this summary, all of the evidence received at the 
 
         hearing was considered in arriving at this decision.  As will be 
 
         the case in any attempted summarization, conclusions about what 
 
         the evidence offered may show are inevitable.  Such conclusions, 
 
         if any, in the following summary, should be considered as 
 
         preliminary findings of fact.
 
         
 
              The statement of facts contained in claimant's brief as to 
 
         claimant's work history conforms for the most part to the 
 
         evidence presented.
 
         
 
              Claimant is 61 years old having been born on July 5, 1926.  
 
         Claimant started to work for Morrell on May 27, 1953, at the age 
 
         of 26.  He worked for Morrell continuously for approximately 31.8 
 
         years until he retired on March 1, 1985.  The plant closed on 
 
         April 27, 1985.  Claimant was 58 years old at the time of 
 
         retirement.  Morrell was claimant's only employer during the 
 
         entire period of time.
 
         
 
              Claimant testified that he performed the following jobs 
 
         approximately eight hours a day, five days a week during the 
 
         period of his employment:
 
         
 
         
 
                 JOB               PLANT         PERIOD         LENGTH
 
         
 
         Beef Offal; scald,
 
         wash and scrape tripe     Beef         1953-1958     5 1/2 years
 
         
 
         Tripe Offal; scald
 
         and scrape tripe          Beef         1958-1960     1 1/2 years
 
         
 
         Hides; spread hides       Beef         1961-1964     3 years
 
         
 
         Pork; clean-up            Pork         1964-1967     3 1/2 years
 
         
 
         Beef Fabricating; load,
 
         saw and separate, cut
 
         and trim                  Beef         1967-1982    15 years
 
         
 
         Clean-up                  Pork         1983-1985     2 years
 
         
 
              Claimant testified that the noisiest job was the beef 
 
         fabricating room for 15 years from 1967 to 1982 due to the 
 
         constant high pitched sound emitted from the saws used to cut 
 
         portions of beef.  The least noisy job was clean-up from 1964 to 
 
         1967 and 1983 to 1985.
 
         
 
              Claimant testified that he grew up on a small family farm in 
 
         Whittemore, Iowa.  He attended school until the eighth grade and 
 
         then worked as a farmhand at various farms in the area.  
 
         Claimant's father had one small tractor and the farms he worked 
 
         on were not heavily mechanized.
 
         
 
              Claimant entered the service in approximately 1945 at the 
 
         age of 18.  He was stationed in Japan where he drove a truck and 
 
         had M.P. duty.  He was in the service for one and a-half years 
 
         and received an honorable discharge.
 
         
 

 
         
 
         
 
         
 
         LEININGER V. JOHN MORRELL & COMPANY
 
         Page   3
 
         
 
         
 
              After the service, claimant returned to Iowa and worked as a 
 
         farmhand for about one year at various farms.
 
         
 
              Claimant then went to Oregon where he worked at a cement 
 
         plant making cement blocks and loading the blocks.  He worked in 
 
         Oregon for about one year.
 
         
 
              Claimant, next went to the State of Washington working for a 
 
         mill where he loaded and delivered logs for about one year.
 
         
 
              Claimant then moved back to Estherville, Iowa and was 
 
         employed at a creamery drying eggs.  This employment lasted only 
 
         for a couple weeks as claimant had been hired by Morrell.
 
         
 
              Claimant started work for Morrell on May 27, 1953.  Claimant 
 
         testified at the time he started work for Morrell he was in 
 
         excellent physical condition and he had no hearing problems at 
 
         that time.  Claimant's first hearing examination with an 
 
         audiogram was conducted on December 22, 1986.  David Nelson, an 
 
         audiologist in Spencer, Iowa, conducted the examination.  The 
 
         audiogram results show claimant had a permanent sensorineural 
 
         hearing loss.  Claimant testified the first time he realized that 
 
         he had a permanent hearing loss was when Mr. Nelson explained the 
 
         results of the audiogram.  Claimant testified Mr. Nelson told him 
 
         the loss was most likely caused by his employment with Morrell.
 
         
 
              A general plant layoff occurred from June 25, 1982 to July 
 
         18, 1983.  Claimant was examined by Jerry Dawson, M.D., on July 
 
         12, 1983.  The examination was a routine physical Morrell was 
 
         requiring of its employees prior to their return to work from the 
 
         layoff.  Exhibit 6 is the medical questionnaire and notes from 
 
         the examination.  Claimant responded that he did not have 
 
         deafness or ear trouble on the questionnaire (See #11, Exhibit 
 
         6).  Dr. Dawson indicated claimant's ears were normal (See 
 
         Exhibit 6).
 
         
 
              Claimant stated at hearing and in his deposition that he 
 
         first became aware of his hearing loss at the time of the 
 
         examination by Nelson in 1986.  However, claimant testified that 
 
         he was aware of a "hearing problem" years before.  Claimant 
 
         stated in his deposition as follows:
 
         
 
         When did you first notice that you had a hearing problem?
 
         
 
              A.  Well, just come on gradually.  And the first I really 
 
              noticed it for sure is when Dr. Nelson took the hearing 
 
              test.  And --
 
         
 
              Q.  That was in December of 1986?
 
         
 
              A.  Uh-huh. (Witness indicated affirmatively.) But I had 
 
              problems hearing for 12, 15 years, you know, gradually.
 
         
 
              Q.  But the first time you were really aware that you had a 
 
              hearing loss was December of 1986?
 
         
 
              A.  That's when I was aware of it.
 
         
 
              Q.  You say it came on gradually.  When did you first notice 
 

 
         
 
         
 
         
 
         LEININGER V. JOHN MORRELL & COMPANY
 
         Page   4
 
         
 
         
 
              that you were having problems hearing?
 
         
 
              A.  Oh, I suppose it would have been probably 10, 12 years, 
 
              something like that.
 
         
 
              Q.  How did you notice you had a hearing problem?
 
         
 
              A.  Well, difficulty hearing things at home.  Like TV and 
 
              radios and kids talking and stuff like that.  Had difficulty 
 
              communicating.
 
         
 
              Q.  Did you ever see a doctor about your hearing problem?
 
         
 
              A.  I went to the family doctor one time.  This was about in 
 
              '83, something like that.  And that's Dr. Dawson.  To have 
 
              the wax taken out of my ears.  And he said it was none in 
 
              there.  And he was the one that first told me that I was 
 
              having a hearing problem.
 
         
 
              Q.  When did you see Dr. Dawson?
 
         
 
              A.  Oh, that was must have been in O83.  It was before the 
 
              plant went down.
 
         
 
              Q.  What if anything did he tell you you should do?
 
         
 
              A.  Have my hearing checked.
 
         
 
              Q.  Did you have it checked?
 
         
 
              A.  Well, I didn't have it checked until Dr. Nelson checked 
 
              it.
 
         
 
              At hearing, claimant similarly differentiated between his 
 
         knowledge of a hearing problem and his knowledge of hearing loss 
 
         before 1986.
 
         
 
              In his deposition claimant stated as follows as to his 
 
         knowledge of the causation of his hearing difficulties:
 
         
 
         
 
              Q.  Has anyone ever told you what the cause of your hearing 
 
              loss is?
 
         
 
              A.  Well, only Dr. Nelson related it to working down at the 
 
              plant and the saw and such things as that on account of my 
 
              high pitch hearing is completely gone.
 
         
 
              Q.  This is -- he's not really a doctor.  He's an 
 
              audiologist, the Nelson Hearing Aid Service, this David 
 
              Nelson?
 
         
 
              A.  Right.
 
         
 
              Q.  He told you that it was the result of your work?
 
         
 
              A.  He thought it was related to that.
 
         
 
              Q.  How about Dr. Dawson, what did he tell you?
 

 
         
 
         
 
         
 
         LEININGER V. JOHN MORRELL & COMPANY
 
         Page   5
 
         
 
         
 
         
 
              A.  He thought the same thing.  But he didn't have things to 
 
              examine me with, you know.  He -he's just a physician.
 
         
 
              Q.  So he really didn't give you a --
 
         
 
              A.  --full examination, no.
 
         
 
              Initially at hearing, claimant again testified that he was 
 
         not told of any possible connection between his work and his 
 
         hearing loss until the Nelson exam in 1986.  In 
 
         cross-examination, claimant admitted that his attorney made a 
 
         written claim for workers' compensation benefits as a result of 
 
         an alleged hearing loss injury at Morrell in November, 1985, well 
 
         before the Nelson audiogram.  Upon further cross-examination of 
 
         claimant, claimant was asked to explain an office note of Dr. 
 
         Dawson, following claimant's visit to Dr. Dawson on August 23, 
 
         1984 for "ringing in ears."  That note made a reference to a 
 
         history that claimant was exposed to loud harsh noises at work 
 
         and the physician's impression that claimant was suffering from 
 
         tinnitus and probable high frequency hearing loss.  Claimant then 
 
         admitted at hearing as follows:
 
         
 
         
 
              Q.  Dr. Dawson thought that your loss was a result of the 
 
              noise exposure at John Morrell, didn't he?
 
         
 
              A.  Yes, sir.
 
         
 
              Q.  And you knew that on August of 1984 when you went in to 
 
              have your exam; isn't that correct?
 
         
 
              A.  Yes, sir.
 
         
 
              Claimant filed his petition for occupational hearing loss 
 
         benefits in this manner on March 17, 1987.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant must establish by a preponderance of the evidence 
 
         that he filed his claim with this agency within the prescribed 
 
         period of time allowed under Iowa Code section 85.26 and has 
 
         provided notice under Iowa Code section 85.23.  These code 
 
         sections require claimants to provide notice of a work injury to 
 
         an employer within 90 days of its occurrence and to file their 
 
         claim for workers' compensation with the industrial 
 
         commissioner's office within two years.  However, an injured 
 
         employee is permitted in certain circumstances to file workers' 
 
         compensation claims after the prescribed time limitation 
 
         provisions in Iowa Code section 85.23 under the so called 
 
         "discovery rule."  In Orr v. Lewis Cent. Sch. Dist., 298 N.W.2d 
 
         256 (Iowa 1980), the Iowa Supreme Court held that the two year 
 
         time limitation period in which to file a claim for workers' 
 
         compensation benefits and the 90 day notice period does not start 
 
         to run until a person asserting the workers' compensation claim 
 
         discovers or in the exercise of reasonable diligence should have 
 
         discovered the nature, seriousness and probable compensable 
 
         character of the injury.  The supreme court recently ruled that 
 
         this discovery rule was applicable to occupational hearing loss 
 

 
         
 
         
 
         
 
         LEININGER V. JOHN MORRELL & COMPANY
 
         Page   6
 
         
 
         
 
         cases as well.  John Deere Dubuque Works v. Meyers, 410 N.W.2d 
 
         255 (Iowa 1987).
 
         
 
              To arrive at the issue of the application of the discovery 
 
         rule in this case, the undersigned deputy commissioner is viewing 
 
         claimant's case in a light most favorable to claimant.  It is 
 
         assumed, without so deciding, that claimant's hearing loss arose 
 
         out of and in the course of his employment at Morrell and that he 
 
         has suffered an occupational hearing loss as defined in Iowa Code 
 
         section 85B.  It is also assumed, without so deciding, that the 
 
         injury date for purposes of applying the statute of limitations 
 
         and the 90 day notice provisions in this case is a date most 
 
         favorable to claimant which is the date of his retirement on 
 
         March 1, 1985.  It is clear that there are many other possible 
 
         injury dates under the provisions of Iowa Code section 85B.8.  We 
 
         are then left with the application of the discovery rule because 
 
         claimant concedes in his brief that if the discovery rule does 
 
         not apply, the case is barred as untimely under Iowa Code section 
 
         85.26.
 
         
 
              Claimant correctly cites the principles enumerated by the 
 
         Iowa Supreme court in applying the discovery rule.
 
         
 
              Substantially, the same statement of the discovery rule 
 
              appears in 3 A. Larson, Supra, Section 78.41 at 15-65 
 
              to 15-66: "The time period for notice or claim does not 
 
              begin to run until the Claimant, as a reasonable man, 
 
              should recognize the nature, seriousness and probable 
 
     
 
         
 
         
 
         
 
         
 
         LEININGER V. JOHN MORRELL & COMPANY
 
         Page   7
 
         
 
         
 
              compensable character of his disease."
 
         
 
              This statement accurately delineates when the 
 
              employee's duty to give notice arises.  The 
 
              reasonableness of the Claimant's conduct is to be 
 
              judged in the light of his own education and 
 
              intelligence.  He must know enough about the injury or 
 
              disease to realize it is both serious and 
 
              work-connected, but positive medical information is 
 
              unnecessary if he has information from any source which 
 
              puts him on notice of his probable compensability.
 
         
 
              In the case sub judice, given the above guidelines for 
 
         applying the discovery rule, claimant cannot prevail.  Claimant's 
 
         distinction between his knowledge of hearing problems and his 
 
         knowledge of hearing loss is not convincing.  Also, claimant 
 
         clearly was aware of his hearing loss before the 1986 Nelson exam 
 
         as his attorney filed a claim for such a loss with Morrell in 
 
         November, 1985.  Claimant's admissions at hearing were 
 
         particularly devastating to his case.  This deputy commissioner 
 
         has no choice but to find that claimant knew about his hearing 
 
         loss and its connection to his work as early as the office call 
 
         with Dr. Dawson in August of 1984.  Claimant was told at that 
 
         time to seek a hearing test but claimant chose not to do so until 
 
         well after his retirement.
 
         
 
              Finally, claimant contends that he should not be barred 
 
         until he at least had a chance to consult an attorney and 
 
         discover the compensable nature of his hearing loss.  However, 
 
         the current industrial commissioner has ruled in an appeal 
 
         decision that a failure to recognize available legal remedies is 
 
         not sufficient excuse under the discovery rule to extend the 
 
         statute of limitations.  Koopmans v. Iowa Electric Light & Power, 
 
         Case No. 694831 (Appeal Decision filed November 30, 1987).  
 
         Although the Koopmans case is currently on appeal, it is the 
 
         policy of this agency that appeal decisions are binding upon 
 
         deputy commissioners until they are reversed by the courts.  
 
         Furthermore, this deputy does not believe that the Koopmans case 
 
         represents new law.  Therefore, claimant's claim is barred by the 
 
         provisions of Iowa Code section 85.26.
 
              Discussion of the remaining issues is unnecessary.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant is 61 years of age and was in the employ of 
 
         Morrell for 31.8 years as a meat packer and was subjected to loud 
 
         noises at Morrell's at times during his employment.  Claimant 
 
         retired from Morrell on March 1, 1985.
 
         
 
              2.  Claimant has had a serious sensorineural hearing loss 
 
         for the last 10 to 12 years.  In August of 1984, claimant was 
 
         aware that he had some extent of permanent hearing loss and that 
 
         it may be the result of his work at Morrell.
 
         
 
              3.  Claimant gave notice of his claim for occupational 
 
         hearing loss to Morrell in November of 1985.  Claimant filed his 
 
         petition for workers' compensation benefits in this case with 
 
         this agency on March 17, 1987.
 
         
 

 
         
 
         
 
         
 
         LEININGER V. JOHN MORRELL & COMPANY
 
         Page   8
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has failed to establish entitlement to workers' 
 
         compensation benefits.
 
                                      ORDER
 
         
 
              1.  Claimant shall take nothing from these proceedings.
 
         
 
              2.  Claimant shall pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 9th day of March, 1988.
 
         
 
         
 
         
 
         
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Duane E. Hoffmeyer
 
         Attorney at Law
 
         1721 Jackson Street
 
         P. 0. Box 2051
 
         Sioux City, Iowa  51104
 
         
 
         Mr. Dick H. Montgomery
 
         Attorney at Law
 
         Professional Bldg.
 
         P. 0. Box 7038
 
         Spencer, Iowa 51301
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                   2402
 
                                                   Filed March 8, 1988
 
                                                   LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARVIN LEININGER,
 
         
 
              Claimant,
 
         
 
                                                     FILE NO. 843228
 
         VS.
 
                                                 A R B I T R A T I 0 N
 
         JOHN MORRELL & COMPANY,
 
                                                    D E C I S I 0 N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         2402
 
         
 
              Claimant was denied workers' compensation benefits on the 
 
         basis of an untimely filed claim more than two years after the 
 
         date of injury.  Climant had sought workers' compensation 
 
         benefits for an occupational hearing loss.  Assuming an injury 
 
         date most favorable to claimant, claimant still filed his claim 
 
         in an untimely fashion.  It was held that the discovery rule was 
 
         not available to claimant because he was aware of the injury and 
 
         work relatedness well before he retired from defendant's employ.  
 
         Claimant's contention that the discovery rule should not begin 
 
         until he had a chance to consult an attorney to discover the 
 
         compensable nature of the injury was rejected by application of 
 
         prior agency precedent under the language of Koopmans v. Iowa 
 
         Electric Light & Power case.
 
 
 
         
 
         
 
         
 
 
        
 
 
 
 
 
        
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        THOMAS BRINCKS,              
 
        
 
            Claimant,               
 
        
 
        vs.
 
                                              File No. 843233
 
        CASE POWER AND EQUIPMENT,
 
                                           A R B I T R A T I O N
 
            Employer,
 
                                              D E C I S I O N
 
        and
 
        
 
        THE TRAVELERS,                            F I L E D
 
        
 
            Insurance Carrier,                  NOV 20 1989
 
            Defendants.
 
                                             INDUSTRIAL SERVICES
 
        
 
                                                
 
                                      INTRODUCTION
 
        
 
             This is a proceeding in arbitration brought by Thomas 
 
             Brincks against Case Power and Equipment Company, his former 
 
             employer, and its insurance carrier, The Travelers. The case was 
 
             heard and fully submitted at Fort Dodge, Iowa, on November 14, 
 
             1989. The record in the proceeding consists of testimony from 
 
             Thomas Brincks and Brenda Brincks. The record also contains 
 
             claimant's exhibits 1 and 2 and defendant's exhibits A and B. 
 
             The deposition exhibits are considered part of each deposition.
 
        
 
                                      ISSUES
 
        
 
             Claimant seeks compensation for permanent partial disability 
 
             based upon an injury of March 22 or 23, 1985. The occurrence of 
 
             injury on the date alleged was stipulated by defendants. No 
 
             healing period entitlement was claimed. The only issue to be 
 
             determined is determination of claimant's entitlement to 
 
             compensation for permanent partial disability which was 
 
             proximately caused by the March 22, 1985 injury. With regard to 
 
             the weekly rate of compensation, it was stipulated that claimant 
 
             was married with four exemptions and that his gross weekly 
 
             earnings were $205.20. Under the 1984 benefit schedule, the 
 
             weekly rate would therefore be $141.22.
 
        
 
                                 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 offered may show are inevitable with any 
 
             summarization. The conclusions in the following summary should 
 
             be considered to be preliminary findings of fact.
 
        
 
            Thomas Brincks is a 34-year-old married man who has two 
 
        dependent children. Brincks is a 1973 high school graduate. He 
 
        has no further formal education other than training seminars 
 
        which have been provided by his employers.
 
        
 

 
        
 
 
 
 
 
            Following high school, claimant was employed at Safeway 
 
        Foods Stores for a period of ten years ending in 1983. Claimant 
 
        stated that he performed a number of different functions 
 
        including cashier and working in the produce department. 
 
        Claimant stated that the work required a lot of standing, 
 
        stooping, carrying and lifting of grocery products. He stated 
 
        that he would have handled articles weighing as much as 150 
 
        pounds. Claimant was earning approximately $11.00 per hour in 
 
        1983 when the Safeway store at which he worked was closed. He 
 
        unsuccessfully sought other work in the grocery business.
 
        
 
            Claimant commenced employment with Case Power and Equipment 
 
        Company in 1983. He started as a journeyman mechanic and also 
 
        drove a truck. He stated that his primary activity was 
 
        performing mechanical work on large farm equipment. He stated 
 
        that the work required him to perform lifting of parts weighing 
 
        up to 150 pounds. He stated that the work required a lot of 
 
        standing, carrying, stooping, bending and working in contorted 
 
        positions.
 
        
 
            Claimant testified that on March 22, 1985 he had driven a 
 
        semi from the Carroll, Iowa dealership to the Boone, Iowa 
 
        dealership in order to pick up three tractors and return them to 
 
        the Carroll, Iowa store. Claimant stated that after loading and 
 
        chaining the first, he was standing on the tire of the tractor 
 
        which was located on top of the top deck of the trailer, a 
 
        distance which he estimated to be approximately five to five and 
 
        one-half feet above the ground. Claimant stated that he slipped 
 
        off the tractor tire, slipped on the top deck, and fell to the 
 
        ground, landing on his feet with more of the impact on his right 
 
        leg than on his left. Claimant testified that he felt pain in 
 
        his lower back, right leg and hip. Claimant testified that he 
 
        completed his assigned work at Boone and then drove the truck 
 
        back to Carroll. He stated that when he arrived at Carroll, his 
 
        lower back pain had increased and that he could hardly get out of 
 
        the truck in order to drive to his home.
 
        
 
             Claimant testified that he was down and rested all weekend. 
 
             On the following Monday he was not better so he sought treatment 
 
             from T. E. Blankenbaker, D.C., and also reported the incident to 
 
             the store manager. Claimant stated that he underwent a course of 
 
             treatment under the direction of Dr. Blankenbaker, but did not 
 
             ever actually miss any days from work as a result of the 
 
             incident, except for medical treatment and absences related to 
 
             this litigation.
 
        
 
            Claimant testified that after completing the course of 
 
        treatment, he had to be careful about what he did. He stated 
 
        that he received assistance from other employees whenever he had 
 
        to lift or handle anything heavy. He stated that he was given 
 
        help loading and unloading trucks. Claimant stated that his back 
 
        gradually worsened during the 1985-1987 time span and that he was 
 
        then referred by his employer to orthopaedic surgeon John A. 
 
        Grant, M.D.
 
        
 
            Claimant testified that since the accident, he has had 
 
        constant pain in his lower back, but that some days are worse 
 
        than others. He stated that the back has affected his work by 
 
        making him slower and by limiting the things he can do. Claimant 
 
        stated that he is unable to remain in contorted positions for 
 
        very long in order to work on equipment. He stated that he is 
 
        unable to torque a headbolt unless he uses a pipe on the handle 
 
        of the torque wrench. Claimant stated that presently he is 
 
        unable to run or jump and that extended standing or sitting 
 
        bothers him. Claimant stated that prior to the time of injury, he 
 
        operated a motorcycle and all-terrain vehicle for recreation, but 
 

 
        
 
 
 
 
 
        that now he can operate that type of equipment only if he does so 
 
        very cautiously. He stated that since the accident, he is unable 
 
        to ride a ten-speed bicycle, but can ride a bicycle where he sits 
 
        upright. Claimant related that the family sold their Toyota 
 
        four-wheel drive vehicle because he was unable to endure the 
 
        rough ride which it provided. Claimant stated that he is unable 
 
        to do things at home such as vacuuming, painting walls, or 
 
        shaking rugs. He limits his use of medication to occasional 
 
        aspirin. Claimant has a hobby of rebuilding cars which he stated 
 
        that he performs as best he can with assistance from his wife. 
 
        Claimant feels that his back is worse at the present time than it 
 
        was in 1985.
 
        
 
            Following the injury, claimant continued to work as a 
 
        mechanic until May of 1989 when the store where he worked was 
 
        sold. Claimant related that he was earning $6.00 per hour at the 
 
        time the store was sold, but declined to accept the new owner's 
 
        offer of continued employment at the rate of $5.00 per hour. 
 
        Claimant stated that truck driving was one of the most 
 
        aggravating activities for him. He stated that he decided to 
 
        change jobs as it was the only way to get away from the truck 
 
        driving.
 
        
 
             Claimant obtained employment in a supervisory position as an 
 
             inventory control person at the Quandt Auto Salvage business. 
 
             Claimant stated that at the present job he does more paper work 
 
             than anything. He performs inventories of cars and parts, 
 
             operates a computer in which the inventory information is 
 
             maintained and also sells parts to customers. He stated that he 
 
             does very little lifting or truck driving. He does some walking 
 
             and supervision in the salvage yard. Claimant stated that he 
 
             obtained his current job through his friendship with the owners 
 
             of the business. He currently earns $6.50 per hour, but has none 
 
             of the insurance or pension benefits which he enjoyed while 
 
             employed by Case.
 
        
 
            Claimant testified that he had no back problems of any type 
 
        and had never sought treatment for his back from any physician 
 
        prior to March 22, 1985.
 
        
 
            Claimant was provided with a back brace by Dr. Grant. He 
 
        stated that he wears it when he takes long rides in a vehicle.
 
        
 
            Brenda Brincks, claimant's spouse of ten years, stated that 
 
        since the March 22, 1985 injury, claimant fatigues more easily, 
 
        is more irritable, and complains of his back. She stated that he 
 
        is no longer able to ride in a four-wheel drive vehicle or ATV. 
 
        She stated that he is no longer able to bowl as he had done prior 
 
        to the injury.
 
        
 
            The medical evidence in this case comes primarily from two 
 
        sources, namely, John A. Grant, M.D., an orthopaedic surgeon, and 
 
        Raymond J. Meylor, D.C. Their assessments of claimant's case are 
 
        not in substantial conflict except for the impairment ratings 
 
        which they have assigned. Both agree that claimant has a 
 
        spondylolisthesis and that the March 22, 1985 injury either 
 
        caused or aggravated the condition to cause it to become 
 
        symptomatic (exhibit 1, pages 8-12; exhibit 2, pages 13, 14 and 
 
        20). Both physicians have agreed that the fourth lumbar vertebra 
 
        has slipped forward on the fifth lumbar vertebra since the injury 
 
        (exhibit 1, pages 11-14; exhibit 2, pages 14-16). Dr. Grant 
 
        recommended that claimant avoid lifting of more than 50 pounds, 
 
        that he avoid repetitive lifting, prolonged standing, a lot of 
 
        bending at the waist, and that he avoid operating vibrating 
 
        equipment such as a rough-riding truck or bulldozer (exhibit 1, 
 
        pages 17 and 26-28). Dr. Meylor recommended that claimant avoid 
 

 
        
 
 
 
 
 
        activities such as jumping, bending while lifting, or riding 
 
        snowmobiles and dirt bikes. Dr. Meylor stated that the condition 
 
        had reduced claimant's lifting capacity (exhibit 2, pages 17, 18, 
 
        21 and 22). Neither physician recommended active medical 
 
        treatment at the present time (exhibit 1, page 25; exhibit 2, 
 
        page 21). Dr. Grant assigned an eight percent permanent 
 
        impairment rating (exhibit 1, pages 19 and 20). Dr. Meylor 
 
        assigned a 15 percent permanent impairment rating (exhibit 2, 
 
        pages 26 and 27).
 
        
 
                            APPLICABLE LAW AND ANALYSIS
 
        
 
             The claimant has the burden of proving by a preponderance of 
 
             the evidence that the injury of March 22, 1985 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 
 
        be given to such an opinion is for the finder of fact, and that 
 
        may be affected by the completeness of the premise given the 
 
        expert and other surrounding circumstances. Bodish, 257 Iowa 
 
        516, 133 N.W.2d 867. See also Musselman v. Central Telephone 
 
        Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
        
 
            Aggravation of a preexisting condition is one form of 
 
        compensable injury. While a claimant is not entitled to 
 
        compensation for the results of a preexisting injury or disease, 
 
        the mere existence at the time of a subsequent injury is not a 
 
        defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 
 
        N.W.2d 756, 760-61 (1956). If the claimant had a preexisting 
 
        condition or disability that is aggravated, accelerated, worsened 
 
        or lighted up so that it results in disability, claimant is 
 
        entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 
 
        130, 115 N.W.2d 812, 815 (1962).
 
        
 
             Dr. Grant felt that claimant's condition was an aggravation 
 
             of a preexisting condition while Dr. Meylor felt that the 
 
             incident had caused the defect which both doctors found to exist 
 
             through x-rays. Both doctors recognized that there is some 
 
             uncertainty with regard to whether a condition such as claimant's 
 
             is always congenital rather than traumatic in origin. From a 
 
             legal standpoint, it makes no difference whether the injury was 
 
             an original injury or an aggravation of a preexisting condition. 
 
             Either is fully compensable.
 
        
 
            Thomas Brincks stated that he had not experienced any back 
 
        problems of any nature prior to the day that he fell from the 
 
        employer's trailer on March 22 or 23, 1985. There is no evidence 
 
        in the record which disputes his testimony. Having observed his 
 
        appearance and demeanor as he testified, claimant's statement in 
 
        that regard is accepted as being correct. If claimant's injury 
 
        was an aggravation of a preexisting condition, it is also clear 
 
        that the condition was not disabling, from an industrial 
 
        standpoint, prior to March 22, 1985. Therefore, no apportionment 
 

 
        
 
 
 
 
 
        of disability would be appropriate. Varied Enterprises. Inc. v. 
 
        Sumner, 353 N.W.2d 407 (Iowa 1984); DeShaw v. Energy Mfg. Co., 
 
        192 N.W.2d 777, 780 (Iowa 1971).
 
        
 
            Claimant's injury is to his back; it is not to a scheduled 
 
        member. Since claimant has an impairment to the body as a whole, 
 
        an industrial disability has been sustained. Industrial 
 
        disability was defined in Diederich v. Tri-City Railway Co., 219 
 
        Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: "It is 
 
        therefore plain that the legislature intended the term 
 
        'disability' to mean 'industrial disability' or loss of earning 
 
        capacity and not a mere 'functional disability' to be computed in 
 
        the terms of percentages of the total physical and mental ability 
 
        of a normal man."
 
        
 
            Functional impairment is an element to be considered in 
 
        determining industrial disability which is the reduction of 
 
        earning capacity, but consideration must also be given to the 
 
        injured employee's age, education, qualifications, experience and 
 
        inability to engage in employment for which he is fitted. Olson 
 
        v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
        257 (1963).
 
        
 
            Industrial disability or loss of earning capacity is a 
 
        concept that is quite similar to impairment of earning capacity, 
 
        an element of damage in a tort case. Impairment of physical 
 
        capacity creates an inference of lessened earning capacity. The 
 
        basis element to be determined, however, is the reduction in 
 
        value of the general earning capacity of the person, rather than 
 
        the loss of wages or earnings in a specific occupation. 
 
        Post-injury earnings create a presumption of earning capacity. 
 
        The earnings are not synonymous with earning capacity and the 
 
        presumption may be rebutted by evidence showing the earnings to 
 
        be an unreliable indicator. Carradus v. Lange, 203 N.W.2d 565 
 
        (Iowa 1973); Holmquist v. Volkswagon of America. Inc., 261 N.W.2d 
 
        516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
        34th Biennial Report, 218 (1979); 2 Larson Workmen's Compensation 
 
        Law, sections 57.21 and 57.31.
 
        
 
             The impairment ratings from the physicians clearly establish 
 
             that the injury is to claimant's back. The numbers which they 
 
             assign are not, however, particularly important when determining 
 
             industrial disability. It is the activity restrictions which are 
 
             the most important. For example, a person with a 20 percent 
 
             impairment rating, but who could lift 100 pounds, would likely be 
 
             less disabled from an industrial standpoint than a person with 
 
             only a 10 percent impairment rating who could lift only 50 
 
             pounds, all other factors being equal.
 
        
 
            In this case, claimant's hourly rate of pay has actually 
 
        increased since the injury, although the value of his entire wage 
 
        package has been reduced when the insurance and pension provided 
 
        by Case is considered. If claimant strictly adheres to the 
 
        recommendations made by Dr. Grant and Dr. Meylor, he should not 
 
        perform work as a farm implement mechanic. He should not handle 
 
        boxes of groceries as he did when employed by Safeway Stores. 
 
        While there are many parts of mechanic and grocery store work 
 
        which claimant can perform, there are also some parts in each 
 
        type of work that the doctors have recommended that he avoid. 
 
        Many employers do not have employment for individuals who are 
 
        unable to perform 100 percent of the activities which are a part 
 
        of the job. In this case, it is clear that the injury has caused 
 
        symptoms and the physicians have recommended certain limits on 
 
        claimant's activities in order to assist in minimizing the 
 
        symptoms. There is a definite medically objectively determined 
 
        basis for claimant's symptoms. If claimant follows the 
 

 
        
 
 
 
 
 
        physicians' recommendations, he cannot engage in some types of 
 
        employment which he was capable of performing, without problem, 
 
        prior to the March 22, 1985 injury. When all the material 
 
        factors of industrial disability are considered, it is determined 
 
        that claimant has sustained a 20 percent permanent partial 
 
        disability as a result of the March 22, 1985 injury.
 
        
 
            Normally, permanent partial disability compensation is 
 
        payable commencing at the end of the healing period. Since there 
 
        is no healing period in this case, there is no well-established 
 
        rule for determining the time at which it becomes payable. 
 
        Claimant's petition in this case was filed March 19, 1987. 
 
        Dickenson v. John Deere Products Engineering, 395 N.W.2d 644, 645 
 
        (Iowa App. 1985). In Teel v. McCord 394 N.W.2d 405 (Iowa 1986), 
 
        the court held that when it is known that permanent disability is 
 
        in existence, payment of compensation for that disability should 
 
        commence, even if the extent of that disability is not yet 
 
        completely determinable. Dickenson is consistent with the 
 
        provisions of Code section 535.3. Under the circumstances that 
 
        exist in this case, primarily the lack of any healing period 
 
        compensation and the lack of any showing of a prior claim or 
 
        prior knowledge attributable to the employer of the existence of 
 
        permanent disability, the commencement date for payment of 
 
        permanent partial disability compensation is fixed at March 19, 
 
        1987, the date this action was commenced.
 
        
 
                                 FINDINGS OF FACT
 
        
 
             1. Claimant sustained an injury to his spine on March 22, 
 
             1985 which was most likely an aggravation of a previously 
 
             asymptomatic defect in his spine, although it is possible that 
 
             the injury caused the defect.
 
        
 
             2. The injury caused the defect to become symptomatic and 
 
             necessitated that claimant cease performing some types of 
 
             activities which he had been able to perform prior to the injury 
 
             without experiencing any discomfort.
 
        
 
             3. As a result of the injury, claimant has been advised by 
 
             Drs. Grant and Meylor to avoid heavy lifting, repeated bending, 
 
             and activities which vibrate or jolt his body.
 
        
 
            4. The activity restrictions which the physicians have 
 
        recommended would prohibit claimant from engaging in the types 
 
        of work which he had performed at and prior to the time of the 
 
        injury.
 
        
 
             5. Claimant has since found work which is suitable to his 
 
             condition and consistent with the restrictions recommended by 
 
             the physicians.
 
        
 
             6. Claimant has sustained a 20 percent loss of his earning 
 
             capacity as a result of the March 22, 1985 incident, primarily 
 
             as a result of his loss of access to portions of the job market 
 
             which he was capable of performing prior the injury, but which 
 
             he can no longer perform if he follows the recommendations of 
 
             the physicians.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
             1. This agency has jurisdiction of the subject matter of 
 
             this proceeding and its parties.
 
        
 
            2. Claimant has a 20 percent permanent partial disability, 
 
        as a result of the March 22, 1985 injury, which entitles him to 
 
        receive 100 weeks of compensation under the provisions of Iowa 
 

 
        
 
 
 
 
 
        Code section 85.34(2)(u).
 
        
 
            3. The compensation is payable commencing March 19, 1987, 
 
        the date this action was commenced.
 
        
 
                                      ORDER
 
        
 
             IT IS THEREFORE ORDERED that defendants pay claimant one 
 
             hundred (100) weeks of compensation for permanent partial 
 
             disability at the rate of one hundred forty-one and 22/100 
 
             dollars ($141.22) per week payable commencing March 19, 1987 .
 
        
 
             IT IS FURTHER ORDERED that all past due amounts be paid in a 
 
             lump sum together with interest pursuant to section 85.30 of The 
 
             Code.
 
        
 
            IT IS FURTHER ORDERED that defendants pay the costs of this 
 
        action pursuant to Division of Industrial Services Rule 343-4.33 
 
        including an expert witness fee of one hundred fifty and 00/100 
 
        dollars ($150.00) each for Dr. Grant and Dr. Meylor, one hundred 
 
        forty-five and 85/100 dollars ($145.80) for deposition costs 
 
        related to Dr. Grant's deposition and one hundred fifty-seven and 
 
        00/100 dollars ($157.00) for deposition costs incurred in 
 
        obtaining Dr. Meylor's deposition.
 
        
 
            IT IS FURTHER ORDERED that defendants shall file claim 
 
        activity reports as requested by this agency pursuant to Division 
 
        of Industrial Services Rule 343-3.1.
 
        
 
            Signed and filed this 20th day of November 1989.
 
        
 
        
 
        
 
        
 
                                                
 
                                     MICHAEL G. TRIER
 
                                     DEPUTY INDUSTRIAL COMMISSIONER
 
        
 
        Copies To:
 
        
 
        Mr. Gregory J. Siemann
 
        Attorney at Law
 
        801 North Adams
 
        Carroll, Iowa 51401
 
        
 
        Mr. M. Gene Blackburn
 
        Attorney at Law
 
        142 North 9th Street
 
        P.O. Box 817
 
        Fort Dodge, Iowa 50501
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            THOMAS BRINCKS,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 843233
 
            CASE POWER AND EQUIPMENT,     :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            THE TRAVELERS,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 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 arbitration decision of the deputy filed November 20, 
 
            1989 is affirmed and is adopted as the final agency action 
 
            in this case except as follows.  The commencement date for 
 
            permanent partial disability compensation in this case is 
 
            the date of the injury, namely March 22, 1985.  In this case 
 
            there is no healing period and Iowa Code section 85.34 
 
            provides that permanent partial disability benefits begin 
 
            after the termination of the healing period.  If there is no 
 
            healing period the permanent partial disability benefits 
 
            begin on the date of the injury.
 
            The decision of the deputy is affirmed in all other 
 
            respects.
 
            Signed and filed this ____ day of April, 1990.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                             DAVID E. LINQUIST
 
                          INDUSTRIAL COMMISSIONER
 

 
            
 
 
 
 
 
 
 
 
 
 
 
            
 
            Copies To:
 
            
 
            Mr. Gregory J. Siemann
 
            Attorney at Law
 
            801 North Adams
 
            Carroll, Iowa 51401
 
            
 
            Mr. M. Gene Blackburn
 
            Attorney at Law
 
            142 N. 9th Street
 
            P.O. Box 817
 
            Fort Dodge, Iowa 50501
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          51803, 52206, 3800
 
                                          Filed April 18, 1990
 
                                          DAVID E. LINQUIST
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            THOMAS BRINCKS,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 843233
 
            CASE POWER AND EQUIPMENT,     :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            THE TRAVELERS,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            51803, 52206
 
            
 
            Claimant, who had no history of prior back problems, became 
 
            symptomatic when he fell from the employer's trailer.  At 
 
            that time he sought treatment and a spondylolisthesis was 
 
            identified.  Based upon the activity restrictions 
 
            recommended by the physicians and his continued 
 
            symptomatology, claimant was excluded from the types of work 
 
            he had performed prior to the injury.  He was successful, 
 
            however, in obtaining replacement employment.  Claimant 
 
            awarded 20 percent permanent partial disability.  Deputy 
 
            affirmed on appeal.
 
            
 
            3800
 
            There was no healing period in this case.  The date for 
 
            commencement of compensation for permanent partial 
 
            disability, and also for interest on unpaid amounts thereof, 
 
            was held to be the date of the injury.
 
            
 
 
        
 
 
 
 
 
        
 
        l
 
        
 
        
 
        
 
        
 
        
 
        
 
        
 
        
 
        
 
                                           51803, 52206, 3800
 
                                           Filed November 20, 1989
 
                                           MICHAEL G. TRIER
 
        
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        THOMAS BRINCKS,
 
        
 
            Claimant,
 
        
 
        vs.
 
                                                 File No. 843233
 
        CASE POWER AND EQUIPMENT,
 
                                               A R B I T R A T I O N
 
            Employer,
 
                                                      D E C I S I O N
 
        and
 
                       
 
        THE TRAVELERS,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
        
 
        51803. 52206, 3800
 
        
 
             Claimant, who had no history of prior back problems, became 
 
             symptomatic when he fell from the employer's trailer. At that 
 
             time he sought treatment and a spondylolisthesis was identified. 
 
             Based upon the activity restrictions recommended by the 
 
             physicians and his continued symptomatology, claimant was 
 
             excluded from the types of work he had performed prior to the 
 
             injury. He was successful, however, in obtaining replacement 
 
             employment. Claimant awarded 20 percent permanent partial 
 
             disability.
 
                  
 
        3800
 
        
 
             The case involved no healing period. There was no evidence 
 
             of when the employer and its insurance carrier should have been 
 
             able to determine that some degree of permanent disability had 
 
             existed from the injury. The date for commencement of 
 
             compensation for permanent partial disability, and also for 
 
             interest on unpaid amounts thereof, was held to be the date of 
 
             filing the petition.
 
             
 
        
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CYNTHIA SAWDEY,               :
 
                                          :
 
                 Claimant,                :       File No. 843379
 
                                          :
 
            vs.                           :        A P P E A L
 
                                          :
 
            SHELLER-GLOBE CORPORATION,    :      D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            statement of the case
 
            
 
                 Defendant appeals from an arbitration decision awarding 
 
            claimant 12 percent permanent partial disability for 
 
            industrial purposes as the result of an January 12, 1987 
 
            work injury.  The record on appeal consists of the 
 
            transcript of the arbitration hearing; claimant's exhibits 1 
 
            through 7 and defendant's exhibits 1 through 4.  Both 
 
            parties filed briefs on appeal.
 
            
 
                                      issues
 
            
 
                 Defendant states the issues on appeal are:
 
            
 
                   I.  Did the deputy err in deciding that the 
 
                 claimant carried her burden of proving causal 
 
                 connection between her January 12, 1987 foot 
 
                 injury and her claimed back pain?
 
            
 
                  II.  Did the deputy err in awarding healing 
 
                 period benefits through January 5, 1988?
 
            
 
                 III.  Did the deputy err in finding industrial 
 
                 disability?
 
            
 
                  IV.  Did the deputy err in awarding benefits 
 
                 under section 85.27?
 
            
 
                                review of evidence
 
            
 
                 The arbitration decision dated June 16, 1989 adequately 
 
            and accurately reflects the pertinent evidence and it will 
 
            not be reiterated herein.
 
            
 
                      
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            applicable law
 
            
 
                 The citations of law in the arbitration decision are 
 
            appropriate to the issues and evidence.  The following 
 
            additional citation is appropriate.
 
            
 
                 Expert medical evidence must be considered with all 
 
            other evidence introduced bearing on the causal connection.  
 
            Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 
 
            N.W.2d 732 (Iowa 1955).  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 v. Fischer, Inc., 257 
 
            Iowa 516, 133 N.W.2d 867 (Iowa 1965).  See also Musselman v. 
 
            Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                                     Analysis
 
            
 
                 The analysis of the evidence in conjunction with the 
 
            law in the arbitration decision is adopted on the issues of 
 
            industrial disability and section 85.27 medical benefits.
 
            
 
                 On the issue of casual connection the testimony of 
 
            claimant's treating physician is relevant.  William 
 
            Pontarelli, M.D., testified:
 
            
 
                 Q.  Is there anything that showed on the x-rays of 
 
                 the lumbar spine that indicated that there was a 
 
                 defect or bony damage from injury, recent injury, 
 
                 say, as in January?
 
            
 
                 A.  She had two soft herniations of disk at 3-4 
 
                 and 4-5 above this level.
 
            
 
            (Claimant Exhibit 5, Deposition of Dr. Pontarelli, page 10)
 
            
 
                 Q.  Doctor, you mentioned an old back injury that 
 
                 might have been congenital.  Was there evidence 
 
                 after you completed the tests that were performed 
 
                 of some injury that had been recent?
 
            
 
                 A.  I thought the appearance of the disk 
 
                 protruding backward at L4-5 has been described as 
 
                 bulging which connotes something less than a 
 
                 significant problem still represented fresh injury 
 
                 in my mind.
 
            
 
            (Cl. Ex. 5, Dep. of Dr. Pontarelli, p. 19.)
 
            
 
                 When asked about the results of claimant's CT scan, Dr. 
 
            Pontarelli opined that claimant injured her disk above the 
 
            level where there was an old problem.  Dr. Pontarelli had 
 
            the opportunity to review claimant's CT and myelogram, 
 
            therefore, his opinion on causation is given greater weight.  
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Charles Skaustad, M.D., treated claimant's foot 
 
            immediately following her work injury.  In his deposition, 
 
            Dr. Skaustad testified that if claimant had complained of 
 
            back pain following her work injury he would have included 
 
            this information in his office notes.  Dr. Skaustad did not 
 
            note any back pain but noted that claimant complained of 
 
            numbness in her thigh a few days following her work injury.  
 
            Dr. Skaustad referred claimant to Dr. Pontarelli upon 
 
            claimant's request. 
 
            
 
                 The opinion of Rouben Mirbegian M.D., concerning casual 
 
            connection is given little weight.  Dr. Mirbegian refused to 
 
            answer questions concerning his continuing medical 
 
            education.  Pursuant to Iowa Rules of Evidence, rule 702, 
 
            Dr. Mirbegian's refusal to answer certain questions 
 
            concerning his medical experiences effects the weight to be 
 
            given his testimony by the trier of fact.  In addition, Dr. 
 
            Mirbegian saw claimant for an evaluation nine months after 
 
            claimant's work injury.  For these reasons, the testimony of 
 
            Dr. Mirbegian is given little weight.
 
            
 
                 Based upon the testimony of Dr. Pontarelli and upon the 
 
            claimant's testimony concerning the work injury, claimant 
 
            proved a casual connection between the work injury of 
 
            January 12, 1987 and claimant's back injury. Claimant 
 
            complained of back pain and sought treatment shortly after 
 
            the injury to her foot in a time frame appropriate for a 
 
            lifting injury. (Cl. Ex. 5, Dep. of Dr. Pontarelli, pp. 
 
            6-7.)  An agency decision is relevant in that it states, 
 
            "[i]t is reasonable to believe that not all of claimant's 
 
            injuries were immediately known to him or his physicians.  
 
            It is also reasonable to believe that his lower back 
 
            condition did not manifest itself until after the injury or 
 
            until after his extensive bedridden period."  Worrell v. 
 
            Griffin Wheel Co., Appeal Decision, February 26, 1988.  
 
            Claimant was on crutches and in a cast as a result of her 
 
            foot injury and it is reasonable to believe that her back 
 
            injury did not manifest itself immediately following her 
 
            foot injury.
 
            
 
                 Healing period ends when significant improvement from 
 
            the injury is not anticipated; or when an employee is able 
 
            to return to his or her former work or to substantially 
 
            similar work.  An agency decision stated:
 
            
 
                    That a person continues to receive medical care 
 
                 does not indicate that the healing period 
 
                 continues.  Medical treatment which is maintenance 
 
                 in nature often continues beyond that point when 
 
                 maximum medical recuperation had been 
 
                 accomplished.  Medical treatment that anticipates 
 
                 improvement does not necessarily extend healing 
 
                 period particularly when the treatment does not in 
 
                 fact improve the condition.
 
            
 
            Derochie v. City of Sioux City, II Iowa Industrial 
 
            Commissioner Report 112, 114 (1982).  Dr. Pontarelli did not 
 
            release claimant to return to work.  However, in an office 
 
            note dated August 14, 1987, Dr. Pontarelli stated that 
 
            claimant's symptom patterns had not changed and he ruled out 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            low back surgery at that time.  Further conservative 
 
            treatment was recommended, including physical therapy.  (Cl. 
 
            Ex. 3, p. 5.)  Prior to this appointment, Dr. Pontarelli 
 
            prescribed the use of a chairback brace and had not ruled 
 
            out the possibility of back surgery.  In an office note 
 
            dated November 9, 1987, Dr. Pontarelli opined that claimant 
 
            is not likely to recover from her back injury.  In addition, 
 
            claimant's physical examination showed "motor and sensory in 
 
            her lower extremities to be intact" and "reflexes present".  
 
            (Cl. Ex. 3, p. 3.)
 
            
 
                 Dr. Pontarelli testified in responses to a question 
 
            posed by defendants' attorney:
 
            
 
                 Q.  Did you think that her condition in November 
 
                 was pretty much the same that it had been when you 
 
                 saw her in August?
 
            
 
                 A.  Yes. pretty much.
 
            
 
            (Cl. Ex. 5, Dep. of Dr. Pontarelli, p. 16.)
 
            
 
                 The greater weight of the evidence supports the 
 
            conclusion that claimant's healing period ended on August 
 
            14, 1987 when Dr. Pontarelli opined that claimant had 
 
            reached maximum medical improvement.
 
            
 
                                 findings of fact
 
            
 
                 1.  Claimant sustained a back injury arising out of and 
 
            in the course of her employment on January 12, 1987.
 
            
 
                 2.  Claimant's back injury was casually connected to 
 
            claimant's January 12, 1987 work injury and resulted in 
 
            permanent disability.
 
            
 
                 3.  Dr. Pontarelli opined that claimant sustained 
 
            physical impairment of five percent of the whole body as a 
 
            result of claimant's January 12, 1987 work injury to her 
 
            back.
 
            
 
                 4. Claimant's date of birth is October 1, 1955 and 
 
            claimant has her GED.
 
            
 
                 5. In approximately 1974, claimant received training at 
 
            a community college as a nurse's aide and worked as a 
 
            nurse's aide.
 
            
 
                 6.  Subsequent to claimant's January 12, 1987 work 
 
            injury, claimant sought vocational rehabilitation and is 
 
            being trained to be a medical assistant.
 
            
 
                 7.  Claimant has a learning disability.
 
            
 
                 8.  Claimant's restrictions include no repetitive 
 
            bending and lifting, and Dr. Pontarelli recommended light 
 
            duty type work.
 
            
 
                 9.  Claimant was in healing period from January 12, 
 
            1987 through August 14, 1987 when Dr. Pontarelli opined that 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            claimant's back would not improve and ruled out surgery.
 
            
 
                 10. Claimant incurred reasonable medical expenses as a 
 
            result of her work injury in January 12, 1987.
 
            
 
                 11. As a result of the January 12, 1987 work injury, 
 
            claimant may incur further medical expenses including 
 
            treatment at the New Life Fitness Center for claimant's back 
 
            problem.
 
            
 
                 12. Claimant has proved that she sustained a 12 percent 
 
            loss of earning capacity.
 
            conclusions of law
 
            Claimant proved a causal connection between her back pain 
 
            and her January 12, 1987 work injury.
 
            Claimant proved entitlement to healing period benefits from 
 
            January 12, 1987 through August 14, 1987.
 
            Claimant proved entitlement to 12 percent permanent partial 
 
            disability benefits as a result of her January 12, 1987 work 
 
            injury.
 
            Claimant proved entitlement to reasonable medical expenses 
 
            and that she will be entitled to reasonable and necessary 
 
            future medical expenses, including treatment at the New Life 
 
            Fitness Center incurred as a result of her January 12, 1987 
 
            work injury.
 
            WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            order
 
            THEREFORE, it is ordered:
 
            That defendant shall pay unto claimant sixty (60) weeks of 
 
            permanent partial disability benefits at the stipulated rate 
 
            of two hundred forty-five and 22/100 dollars ($245.22) per 
 
            week as a result of the injury on January 12, 1987.
 
            That defendant shall pay unto claimant healing period 
 
            benefits beginning on January 12, 1987 through August 14, 
 
            1987 at the stipulated rate of two hundred forty-five and 
 
            22/100 dollars ($245.22) per week as a result of the injury 
 
            on January 12, 1987.
 
            That defendant shall pay medical expenses in the amount of 
 
            twenty-two dollars ($22) to Steindler Orthopedic Clinic.
 
            That defendant shall pay future reasonable and necessary 
 
            medical expenses related to claimant's lower back including, 
 
            but not limited to, the costs of treatment at the New Life 
 
            Fitness Center.
 
            That payments that have accrued shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            That defendant shall be given credit for all benefits 
 
            previously paid to claimant.
 
            That defendant pay the cost of this proceeding including the 
 
            cost of transcription of the arbitration hearing.
 
            That defendant file claim activity reports pursuant to 
 
            Division of Industrial Services Rule 343-3.1(2).
 
            
 
                 Signed and filed this ____ day of August, 1990.
 
            
 
            
 
            
 
            
 
                                          
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            ________________________________
 
                                                   CLAIR R. CRAMER
 
                                           ACTING INDUSTRIAL 
 
            COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Emmit George, Jr.
 
            Attorney at Law
 
            500 Dubuque Street
 
            P.O. Box 3090
 
            Iowa City, Iowa 52244
 
            
 
            Mr. Harry Dahl
 
            Attorney at Law
 
            974 73rd Street
 
            Suite 16
 
            Des Moines, Iowa 50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1803, 5-1802
 
                                          Filed August 29, 1990
 
                                          CLAIR R. CRAMER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CYNTHIA SAWDEY,               :
 
                                          :
 
                 Claimant,                :      File No. 843379
 
                                          :
 
            vs.                           :        A P P E A L
 
                                          :
 
            SHELLER-GLOBE CORPORATION,    :      D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Based upon the testimony of William Pontarelli, M.D., and 
 
            upon claimant's testimony concerning the work injury, 
 
            claimant proved a casual connection between the work injury 
 
            and claimant's back injury.  Claimant complained of back 
 
            pain and sought treatment shortly after the injury to her 
 
            foot in a time frame appropriate for a lifting injury.
 
            
 
            5-1802
 
            Healing period ended when Dr. Pontarelli opined that 
 
            claimant had reached maximum medcial improvement.  Dr. 
 
            Pontarelli stated that claimant's symptoms patterns had not 
 
            changed and he ruled out low back surgery.  
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CYNTHIA SAWDEY,                               File No. 843379
 
         
 
              Claimant,                             A R B I T R A T I O N
 
         
 
         vs.                                           D E C I S I O N
 
         
 
         SHELLER-GLOBE CORPORATION,                       F I L E D
 
         
 
              Employer,                                  JUN 16 1989
 
              Self-Insured,
 
              Defendant.                             INDUSTRIAL SERVICES
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is an arbitration proceeding brought by Cynthia Sawdey, 
 
         claimant, against Sheller-Globe Corporation, self-insured 
 
         employer, defendant.  The case was heard by the undersigned in 
 
         Cedar Rapids, Iowa, on October 27, 1988.
 
         
 
              The record consists of the testimony of claimant.  The 
 
         record also consists of the testimony of Alice Casper.. 
 
         Additionally, the record consists of claimant's exhibits 1 
 
         through 7 and defendant's exhibits 1 through 4.
 
         
 
              At the hearing, defendant raised the issue that the list of 
 
         all proposed exhibits and witnesses had not been served pursuant 
 
         to paragraph six of the hearing assignment order.  According to 
 
         defendant, he did not receive the lists until October 15, 1988. 
 
         However, the proofs of service indicate the lists were mailed on 
 
         October 12, 1988.  Under Rule 343-4.13 of the Division of 
 
         Industrial Services, service by mail is complete upon mailing.  
 
         In this instance the lists were mailed within fifteen days. 
 
         Therefore, the witnesses listed and the proposed exhibits are 
 
         properly admitted.
 
         
 
                                      ISSUES
 
         
 
              As a result of the prehearing report and order submitted and 
 
         approved on October 27, 1989, the issues presented by the parties 
 
         are:
 
         
 
              1.  Whether there is a causal relationship between the 
 
         alleged injury and the disability;
 
              
 
              2.  Whether claimant is entitled to temporary disability/ 
 
         healing period benefits or permanent partial or total disability 
 
         benefits;
 
         
 
              3.  Whether claimant is entitled to medical benefits under 
 
         section 85.27;
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              4.  Whether claimant is entitled to benefits under section 
 
         86.13.
 
         
 
                                   STIPULATIONS
 
         
 
              Prior to the hearing, the parties entered into a number of 
 
         stipulations.  These stipulations are as follow s:
 
         
 
              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 in the event of an award of weekly benefits, the 
 
         rate of weekly compensation is stipulated to be $245.22 per week. 
 
         Claimant is single with three exemptions; and
 
              
 
              4.  That it is also stipulated defendant paid claimant 45 
 
         6/7 weeks of compensation at the rate of $245.22 per week prior 
 
         to hearing.
 
         
 
                                 FACTS PRESENTED
 
         
 
              At the time of the hearing, claimant was thirty-three years 
 
         old.  She is a single parent with two children.  Claimant 
 
         received her G.E.D in 1975.  In August of 1983, claimant 
 
         commenced her employment with defendant.  She continued her 
 
         employment until January 12, 1987.  Claimant has not worked since 
 
         January 12, 1987.
 
         
 
              Claimant testified during direct examination that acetone 
 
         was stored in fifty-five gallon barrels on the premises of the 
 
         plant. The barrels were on rollers and housed in a cabinet.  
 
         Claimant stated one of the barrels rolled out of the cabinet and 
 
         onto claimant's foot.  Claimant indicated she lost her balance, 
 
         but she did manage to push the barrel back into the cabinet.  At 
 
         the time, claimant reported she felt a severe pain in her left 
 
         foot. Claimant related that she showed her foot to a coemployee, 
 
         LuAnne Shelton, to Larry Shannon, the foreman, and to the company 
 
         nurse. An appointment was then arranged with the company doctor, 
 
         Philip A. McLaughlin, M.D.
 
         
 
              Claimant testified that within forty-eight hours of the work 
 
         injury, she felt numbness in her leg and pain in her lower back. 
 
         Claimant stated she had never injured her back prior to January 
 
         12, 1987, and she was not involved in any injuries immediately 
 
         subsequent to the work injury.
 
         
 
              Claimant reported she was referred to an orthopedic 
 
         specialist, William Pontarelli, M.D.  Dr. Pontarelli remained the 
 
         treating physician.  Claimant indicated she believes she has not 
 
         fully recovered and as of the day of the hearing, claimant was 
 
         still taking medication for the pain in her back and left leg.  
 
         She also indicated she was subsequently experiencing pain because 
 
         of her parental duties.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant reported she was studying to become a medical 
 
         assistant at Kirkwood Community College.  She revealed she 
 
         selected to further her education rather than to return to work 
 
         and that her education was being financed through vocational 
 
         rehabilitation.
 
         
 
              Alice Casper, an industrial nurse, testified for defendant. 
 
         She stated claimant had reported her work injury on January 12, 
 
         1987 to her, but there was no mention of a back injury.  
 
         According to Ms. Casper's testimony, claimant had only complained 
 
         of an injury to her left foot.
 
         
 
              Dr. Pontarelli testified by way of deposition.  He reported 
 
         claimant had been referred to him from Dr. Skaugstad.  Dr. 
 
         Pontarelli also recited the patient history which was provided by 
 
         claimant.  Dr. Pontarelli testified as follows:
 
         
 
                   Q.  At the time that she saw you what history did she 
 
              give as to how this injury she is claiming happened?
 
         
 
                   A.  She was at work.  She was trying to get acetone 
 
              from a 60-gallon barrel.  The barrel rolled off a mooring 
 
              which was a roller and landed on her foot.  She was holding 
 
              the barrel up and boosted it back up onto the roller.  Then 
 
              she noticed that her foot began hurting her.  Developed 
 
              swelling, discoloration and could not put weight on it.  She 
 
              also noticed that she was developing subsequent to this 
 
              thigh pain and calf pain and then hip and then the low back.  
 
              If I can recall correctly this didn't happen immediately but 
 
              that subsequent hours, the days after the accident that it 
 
              did occur.
 
         
 
                   Q.  Was it your understanding that the pains besides 
 
              those in the foot did occur while she was under the care of 
 
              Dr. Skaugstad or Dr. McLaughlin?
 
         
 
                   A.  She told me she mentioned it to Dr. McLaughlin and 
 
              Dr. McLaughlin didn't say anything about it to her, and she 
 
              was a little bit frustrated by that because she felt that 
 
              that needed some attention too.
 
         
 
                   Q.  Did she tell you whether or not she had pain in her 
 
              back immediately when this episode with the barrel happened?
 
         
 
                   A.  She told me that she did not feel that pain 
 
              immediately, if I can recall correctly, but that it came up 
 
              within, say, twenty-four to thirty-six hours,,if I can 
 
              remember correctly, which I thought was still within the 
 
              time frame appropriate for a lifting injury.
 
         
 
                   Q.  Did she tell you whether or not the barrel tipped 
 
              over or whether she lifted the barrel at all?
 
         
 
                   A.  It hadn't tipped over completely.  She thought she 
 
              was doing something really important by not letting it tip 
 
              over since it had a flammable liquid in it, and she felt 
 
              that it took all her strength that she had to put it back to 
 
              right.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
                   Q.  So she told you or led you to believe anyway that 
 
              she had lifted the barrel erect?
 
         
 
                   A.  Not really.  I didn't get the impression that she 
 
              cleared the ground with it or anything.  I thought it was 
 
              kind of tipped and she shoved it up a little bit further.
 
         
 
                   Q.  Did she tell you whether or not the barrel had hit 
 
              her anyplace?
 
         
 
                   A.  I think it hit her on the foot.
 
                   
 
                   Q.  When you examined her did you see any abrasions?
 
                   
 
                   A.  She didn't have skin break.  No.  She did have an 
 
              ecchymotic area at the top of her foot.
 
                   
 
                   Q.  What is your understanding, that she had told some 
 
              other physician that she had back pain before she consulted 
 
              you after this tipping episode?
 
                   
 
                   A.  Yes.  She told Dr. McLaughlin that she had it when 
 
              she saw him.
 
         
 
                   Q.  Apparently what you've told us already, doctor, 
 
              that it is important in your deciding whether or not she had 
 
              a back injury from this episode as to the time after it when 
 
              she began having symptoms.  Would that be correct?
 
                   
 
                   A.  Right.
 
                   
 
                   Q.  I'm using symptoms knowingly here as being 
 
              complaints that she voices rather than signs which are what 
 
              you can physically observe or get through tests; right?
 
         
 
                   A.  Right.
 
         
 
                   Q.  If she didn't complain of any back pain for more 
 
              than two weeks after she hit her foot isn't it unlikely then 
 
              that that episode caused the back symptoms that you elicited 
 
              from her?
 
         
 
                   A.  Not directly, yes.  That's correct.
 
                   
 
                   Q.  Just so that I get this clear, the foot injury 
 
              itself probably didn't cause her to have back pain from what 
 
              you've conceived of how this happened?
 
                   
 
                   A.  Not directly, yes.
 
                   
 
                   Q.  The x-ray reports of her back indicate that here 
 
              was spondylitic defect with a mild grade Roman numeral I 
 
              spondylolysis at L5-S1 which appeared stable.  And have I 
 
              used the right terms and right interpretation of that?
 

 
              
 
 
 
 
 
 
 
 
 
 
 
                   
 
                   A.  Yes, sure.
 
                   
 
                   Q.  Would you describe for us in layman's terms so that 
 
              we simple folks can understand what that means?
 
                   
 
                   A.  She had a break in the ring of the back that 
 
              surrounds the spinal canal where the nerve elements are.  
 
              The break was probably old and it had allowed for a slippage 
 
              of one vertebrae on the other.
 
         
 
                   Q.  Is that the type of a defect that is usually or 
 
              maybe always something that is congenital?
 
         
 
                   A.  Actually it was the type of defect that most people 
 
              feel have traumatic origins at the time of adolescence but 
 
              often is silent, so people question whether it may not be 
 
              just congenital.
 
         
 
                   Q.  You apparently viewed these films yourself.
 
                   
 
                   A.  That's correct.
 
                   
 
                   Q.  Is there anything that showed on the x-rays of the 
 
              lumbar spine that indicated that there was a defect or bony 
 
              damage from injury, recent injury, say, as in January?
 
                   
 
                   A.  She had two soft herniations of disk at 3-4 and 4-5 
 
              above this level.
 
         
 
                   Q.  Were they actually herniations or bulging?
 
                   
 
                   A.  I think bulging would be.more appropriate to say of 
 
              the amount of displacement of the disk.  Yes.
 
                   
 
                   Q.  From your physical examination can you tell whether 
 
              any of these bulgings were impinging upon a spinal nerve?
 
         
 
                   A.  Yes, I could; and I could not tell that they were.
 
                   
 
         (Plaintiff's Exhibit No. 5, page 6 line 2 to page 10 line 23)
 
                   
 
              Dr. Pontarelli further testified:
 
                   
 
                   Q.  Doctor, you mentioned an old back injury that might 
 
              have been congenital.  Was there evidence after you 
 
              completed the tests that were performed of some injury that 
 
              had been recent?
 
                   
 
                   A.  I thought the appearance of the disk protruding 
 
              backward at L4-5 has been described as bulging which 
 
              connotes something less than a significant problem still 
 
              represented fresh injury in my mind.
 
                   
 
                   Q.  Do you anticipate any permanent partial disability 
 
              for Cynthia?
 

 
              
 
 
 
 
 
 
 
 
 
 
 
                   
 
                   A.  Yes, I do.
 
         
 
                   Q.  Do you have a rating?...
 
                   
 
                   Q.  Doctor, what rating would you assign to the injury 
 
              which has been sustained by your patient?
 
                   
 
                   A.  A 5 percent whole body physical impairment.
 
                   
 
                   Mr. George:  That's all that I have.
 
              
 
                          REDIRECT EXAMINATION BY MR. DAHL
 
         
 
                   Q.  Doctor, what condition are you describing as having 
 
              the 5 percent according to the book?
 
         
 
                   A.  The back.
 
                   
 
                   Q.  And what particular pathology?
 
                   
 
                   A.  Periodic acute episodes of acute pain for low back 
 
              pain, disk injury.
 
         
 
         (Plaintiff's Exhibit 5, p. 19, line 12 to p. 20 line 24)
 
         
 
              Dr. Pontarelli also indicated in his medical notes that 
 
         subsequent to the incident on January 12, 1987, claimant had two 
 
         occurrences where she experienced back pain.  Both situations 
 
         were unrelated to work.
 
         
 
              Dr. Rouben Mirbegian, M.D., testified by way of deposition. 
 
         Dr. Mirbegian refused.to testify concerning his postgraduate 
 
         education.  Additionally, Dr. Mirbegian also refused to describe 
 
         his military service.  Dr. Mirbegian refused to answer questions 
 
         concerning the number and place where he had done his continuing 
 
         medical education.
 
         
 
              Dr. Mirbegian did testify he examined claimant on October 
 
         15, 1987 for the purpose of rendering an opinion whether claimant 
 
         could return to work.  He reported his examination consisted of 
 
         talking with the patient, taking a patient history, and examining 
 
         claimant regarding her complaints.  During his deposition, Dr. 
 
         Mirbegian opined he could not prove any objective findings and 
 
         claimant was capable of returning to work.  The physician also 
 
         determined he could not relate the barrel injury to claimant's 
 
         back pain.  Finally Dr. Mirbegian found no functional impairment 
 
         on the part of claimant.
 
         
 
              Charles Skaugstad, M.D., testified by way of deposition.  He 
 
         testified he personally examined claimant on January,14, 1987 for 
 
         pain in her left foot.  Dr. Skaugstad indicated he made no 
 
         notation in his medical notes for that date relative to any back 
 
         pain.  Dr. Skaugstad indicated he would have included a notation 
 
         of back pain if claimant would have complained.  However, Dr. 
 
         Skaugstad did testify as follows:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                   Q.  Did you give her as opportunity to give her history 
 
              and describe what parts of the body were bothering her?
 
         
 
                   A.  I usually do.  I don't recall specifically, 
 
              but,....
 
         
 
         (page 6, line 22 to page 7 line 1)
 
         
 
              Later, Dr. Skaugstad indicated he was presented with no 
 
         signs or symptoms which led him to diagnose low back trouble.  He 
 
         also indicated claimant could return to work on January 20, 1987 
 
         without any restrictions.
 
         
 
                                  APPLICABLE LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received an injury on January 12, 1987, 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 may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it."  Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979); McClure, 188 N.W.2d 283 (Iowa 1971); 
 
         Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of January 12, 1987 is causally 
 
         related to the disability on which she now bases her claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The opinions of experts need not be couched in definite, 
 
         positive or unequivocal language.  Sondag v. Ferris Hardware, 220 
 
         N.W.2d 903 (Iowa 1974).  An opinion of an expert based upon an 
 
         incomplete history is not binding upon the commissioner, but must 
 
         be weighed together with the other disclosed facts and 
 
         circumstances.  Bodish, 257 Iowa 516, 133 N.W.2d 867 (1965).  The 
 
         expert medical evidence must be considered with all other 
 
         evidence introduced bearing on the causal connection between the 
 
         injury and the disability.  Burt, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  In regard to medical testimony, the commissioner is 
 
         required to state the reasons on which testimony is accepted or 
 
         rejected.  Sondag, 220 N.W.2d 903 (1974).
 
         
 
              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 Iowa Supreme Court cites, apparently with approval, the 
 
         C.J.S. statement that the aggravation should be material if it is 
 
         to be compensable.  Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's 
 
         Compensation section 555(17)a.
 
         
 
              Our supreme court has stated many times that a claimant may 
 
         recover for a work connected aggravation of a preexisting 
 
         condition.  Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 
 
         N.W. 35 (1934).  See also Auxier v. Woodward State Hospital Sch., 
 
         266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 
 
         N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 
 
         704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United States Gypsum 
 
         Co., 252 Iowa 613, 106 N.W.2d 591 (1960).
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler v. United States Gypsum Co., 252 Iowa 
 
         613, 620, 106 N.W.2d 591 (1960), and cases cited.
 
         
 
              An employee is not entitled to recover for the results of a 
 
         preexisting injury or disease but can recover for an aggravation 
 
         thereof which resulted in the disability found to exist.  Olson, 
 
         255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 
 
         N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960). 
 
         See also Barz, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist, 218 
 
         Iowa 724, 254 N.W. 35 (1934).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              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, 222 Iowa 272, 268 N.W. 598 
 
         (1936).
 
         
 
              An injury to a scheduled member.may, because of after 
 
         effects (or compensatory change), result in permanent impairment 
 
         of the body as a whole.  Such impairment may in turn form the 
 
         basis for a rating of industrial disability.  Dailey v. Pooley 
 
         Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943).  Soukup, 222 Iowa 
 
         272, 268 N.W. 598 (1936).
 
         
 
              An injury to a scheduled member which, because of 
 
         after-effects (or compensatory change), creates impairment to the 
 
         body as a whole entitles claimant to industrial disability.  
 
         Barton, 253 Iowa 285, 110 N.W.2d 660 (1961).  Daily, 233 Iowa 
 
         758, 10 N.W.2d 569 (1943).
 
         
 
              An injury is the producing cause; the disability, however, 
 
         is the result, and it is the result which is compensated.  Barton 
 
         v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); 
 
         Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943).
 
         
 
              If a claimant contends he has industrial disability he has 
 
         the burden of proving his injury results in an ailment extending 
 
         beyond the scheduled loss.  Kellogg v. Shute and Lewis Coal Co., 
 
         256 Iowa 1257, 130 N.W.2d 667 (1964).
 
         
 
              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, 
 
         255 Iowa 1112, 125 N.W.2d 251 (1963).  Barton, 253 Iowa 285, 110 
 
         N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted. Loss of earnings caused by a job transfer 
 
         for reasons related to the injury is also relevant.  These are 
 
         matters which the finder of fact considers collectively in 
 
         arriving at the determination of the degree of industrial 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         disability.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc. 
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 
                                     ANALYSIS
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         that her injury on January 12, 1987 is causally related to the 
 
         disability on which she now bases her claim.  There is medical 
 
         testimony to substantiate the necessary causal connection.
 
         
 
              Dr. Pontarelli, the treating physician, writes in his letter 
 
         of April 13, 1987:
 
         
 
              Cynthia reports to me that initially her left leg went numb 
 
              subsequent to her injury at work.  She says also that she 
 
              reported this to Dr. McLaughlin, the company physician who 
 
              did not make any connection whatsoever of this physical 
 
              complaint.  This has been a consistent finding ever since 
 
              her injury.  I believe it results from the accident at work 
 
              and the subsequent evaluation to this accident shows that 
 
              she has a ruptured disc at L4-L5 caused by the accident at 
 
              work, causing the left leg to go numb.
 
         
 
              I hope this can help clear the matter up regarding Cynthia's 
 
              workmens (sic) comp claim.
 
         
 
              Later, Dr. Pontarelli writes in his subsequent letter dated, 
 
         January 8, 1988:
 
         
 
              To try to clarify such a purpose for Cynthia's back and fit 
 
              that in relationship to expectations, I would have to say 
 
              the following:  Cynthia, because of her injury at work is 
 
              suffering from chronic back pain and I doubt that there will 
 
              be anything available presently to cure her of this back 
 
              pain, but that there would be still a need for something to 
 
              try to ameliorate the severe episodes that she may yet 
 
              experience, an exercise program where the back is 
 
              strengthened and made more flexible seems the.best way to 
 
              achieve this.  Incidentally, she did suffer a severe episode 
 
              of back pain just trying to put her 2 1/2 year old daughter 
 
              on the toilet at home and this is what she suffers now and 
 
              it all arises out of her injury at work.  So the realistic 
 
              way to view an exercise program is for future maintenance of 
 
              whatever wellness state she is in.  I didn't expect it to 
 
              cure her in an active therapeutic sense.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              Finally, in his deposition, Dr. Pontarelli opines that 
 
         claimant's leg and low back pain appeared within the time frame 
 
         he believed was appropriate for the barrel incident.
 
         
 
              While leg and back pain do not appear in the medical notes 
 
         of Philip A. McLaughlin, M.D., until January 19, 1987, claimant 
 
         testified she had reported the pain and numbness to Charles 
 
         Skaugstad, M.D., Dr. McLaughlin's partner, on January 14, 1987. 
 
         Dr. Skaugstad did not believe her back pain was related.to the 
 
         barrel incident.  The date would have been consistent with 
 
         claimant's testimony that the leg and back pain appeared within 
 
         twenty-four to forty-eight hours after the barrel incident.
 
         
 
              Dr. Mirbegian disagreed with the findings of Dr. Pontarelli 
 
         relative to the cause of claimant's back condition.  However, not 
 
         as much weight is accorded to Dr. Mirbegian's testimony.  He 
 
         examined claimant on one occasion for purposes of evaluation 
 
         only. The examination was nine months after the barrel incident 
 
         occurred.  Dr. Mirbegian indicated the examination and 
 
         conversation with claimant lasted only one hour.  This physician 
 
         did not treat claimant.  Furthermore, Dr. Mirbegian's credibility 
 
         is somewhat suspect since he absolutely refused to answer 
 
         background questions and questions about his continuing medical 
 
         education.  According to Dr. Mirbegian, background questions were 
 
         unrelated to his examination.  His testimony was confined to the 
 
         examination.
 
         
 
              There is also the testimony of claimant.  Her testimony is 
 
         uncontroverted.  Her description of the barrel incident is 
 
         credible.  It is entirely understandable why and how claimant 
 
         would feel compelled to push a fifty-five gallon barrel 
 
         containing a highly flammable liquid back into a cabinet, even 
 
         after the barrel had landed on claimant's foot.  It is also easy 
 
         to comprehend how claimant's lower back could become injured 
 
         while claimant was pushing the barrel.  Additionally, there is 
 
         claimant's testimony that subsequent to the barrel incident there 
 
         was no other injury to her back.  This too, is uncontroverted.  
 
         In light of the foregoing, it is the determination of the 
 
         undersigned that claimant has established the requisite causal 
 
         connection.
 
         
 
              The next issue to discuss is the issue of permanency.  The 
 
         treating physician, Dr. Pontarelli, an orthopedic surgeon, opined 
 
         claimant had a 5 percent functional impairment.  This was due to 
 
         her back condition.  Claimant testified her left foot was fine. 
 
         Dr. Pontarelli also placed certain restrictions on the types of 
 
         jobs which claimant could perform in the future.  He recommended 
 
         light duty work, if possible.  He also restricted claimant from 
 
         engaging in jobs where there were repetitive bending and lifting 
 
         activities.  Finally, Dr. Pontarelli opined claimant should be 
 
         allowed to stand after prolonged sitting, and to sit after 
 
         prolonged standing.  He even advised occasional reclining after 
 
         prolonged periods of either sitting or standing.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              The examining physician, Dr. Mirbegian, did not find any 
 
         permanency.  Dr. Mirbegian reviewed claimant's job duties.  He 
 
         opined claimant was able to return to work at defendant's place 
 
         of business.  He maintained claimant could:
 
         
 
              Q.  What information were you provided about her job or the 
 
              activities that she performed in her job prior to your 
 
              examination of her?
 
         
 
              A.  I was sent a letter that she -- that 8 points that says, 
 
              Obtain parts to be sprayed from tray or from tray or carton 
 
              and attach to fixture on spray conveyor.
 
         
 
                   And there are other, 7 other points.  And I thought 
 
              that she can do all those things.
 
         
 
              Q.  Why don't you read those other points?
 
              
 
              A.  Saturate cheesecloth. the second one is saturate 
 
              cheesecloth in solvent and wash foreign material from cover 
 
              of part and pack when required.  Cuts and folds cheesecloth 
 
              as needed.
 
         
 
                   4 is, Is responsible for good housekeeping and 
 
              following safe operating procedure.
 
         
 
                   5.  Notify spray booth operator or foreman when paint 
 
              coverage is inadequate or when parts are off colored.
 
         
 
                   6.  Check parts for obvious defect when loading parts 
 
              on spray conveyor.
 
         
 
                   7.  Responsible for keeping accurate production counts 
 
              and proper recording such information.
 
         
 
                   8.  Perform other related duty as assigned.
 
         
 
              Q.  Do you know what those other duties would have been at 
 
              the time of your examination?
 
         
 
              A.  Well, there's a general information that, Intent of the 
 
              above description is to accurately and concisely describe 
 
              the primary function of the subject job for identification 
 
              and evaluation and shall not be interpreted as a detailed 
 
              description of all work requirement that might be inherent 
 
              in the job.
 
         
 
         (Defendant's Exhibit 2, p. 11, line 16 to p. 12, line 22)
 
         
 
              Again, for the reasons previously cited, not as much weight 
 
         is given to Dr. Mirbegian's testimony as is given to the 
 
         testimony of Dr. Pontarelli.  It is the determination of the 
 
         undersigned that claimant has a functional impairment of 5 
 
         percent.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant alleges she has an industrial disability.  She 
 
         maintains she is unable to return to work at her former position 
 
         due to her physical condition and to the resulting pain which she 
 
         is experiencing.  Claimant maintains she has experienced a loss 
 
         of earnings and a loss of earning capacity.  The record indicates 
 
         claimant has not returned to work since the date of her injury.
 
         
 
              At the hearing, claimant testified she was unable to return 
 
         to the assembly line where she was required to wash, clean and 
 
         hang dashboards.  As a result, claimant availed herself of the 
 
         services provided at the Kirkwood Skills Center.  After 
 
         evaluation at the center, claimant was enrolled at Kirkwood 
 
         Community College where she is currently studying to become a 
 
         medical assistant.  The course of study is one year as a 
 
         full-time student and two years on a part-time basis.
 
         
 
              Claimant testified in her deposition that a position as a 
 
         medical assistant would generate a salary from $900 per month to 
 
         $1200 per month.  At the time of claimant's injury she was 
 
         working at least 40 hours per week at the rate of $8.39 per hour.  
 
         The wages earned by claimant at defendant's establishment are 
 
         somewhat greater than what claimant would earn as a medical 
 
         assistant.
 
         
 
              Another factor to consider in determining whether claimant 
 
         has an industrial disability is a loss of earning capacity.  This 
 
         is to be distinguished from a loss of earnings.  See Rauch v. 
 
         O'Bryan Brothers, Inc., file no. 828457 (Appeal Decision December 
 
         30, 1988).  Claimant's physical impairment has clearly affected 
 
         her ability to be hired for jobs which require use of her back or 
 
         which entail repetitive bending or twisting.  Claimant is unable 
 
         to sit or stand for prolonged periods of time.  Assembly line 
 
         positions are not viable positions for claimant.  Positions 
 
         involving a multitude of physical activities are unavailable to 
 
         claimant because of her condition.
 
         
 
              Based upon the foregoing and based upon:  (1) the personal 
 
         observation of claimant; (2) agency expertise, [Iowa 
 
         Administrative Procedure Act 17A.14(s); and (3) claimant's 
 
         testimony, the undersigned finds claimant has a 12 percent 
 
         permanent partial disability as a result of the injury on January 
 
         12, 1987.
 
         
 
              The next issue to address is whether claimant is entitled to 
 
         any healing period benefits.
 
         
 
              Section 85.34(1) of the Iowa Code (1987) governs the award 
 
         of hearing period benefits.  That section provides:
 
         
 
              If an employee has suffered 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 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.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              Under Section 85.34(1) claimant was entitled to healing 
 
         period benefits through January 5, 1988.  That was the date Dr. 
 
         Pontarelli determined:
 
         
 
              Physical exam today show no motor deficits in her legs. 
 
              Sensory is okay.  Straight leg raise, sitting root tests are 
 
              negative.  She is responding to Darvocet and Motrin and she 
 
              reinstituted her back brace. [sic] She wasn't able 
 
              unfortunately to get the New Life Fitness exercise program 
 
              instituted because the workmens' comp. people will not honor 
 
              it any longer.  I doubt that such a program will cure her of 
 
              her chronic back ache, but certainly it would improve the 
 
              situation for her a great deal in a maintenance standpoint.
 
         
 
         (Plaintiff's Exhibit 3, page 2)
 
         
 
              It was on that date Dr. Pontarelli opined there would be no 
 
         more significant medical improvement.  He confirmed this opinion 
 
         in his report of January 8, 1988 when he wrote in relevant 
 
         portion:
 
         
 
              To try to clarify such a purpose for Cynthia's back and fit 
 
              that in relationship to expectations, I would have to say 
 
              the following:  Cynthia, because of her injury at work is 
 
              suffering from chronic back pain and I doubt that there will 
 
              be anything available presently to cure her of this back 
 
              pain, but that there would be still a need for something to 
 
              try to ameliorate the severe episodes that she may yet 
 
              experience, an exercise program where the bark is 
 
              strengthened and made more flexible seems the best way to 
 
              achieve this...
 
         
 
              The next issue to address is whether claimant is entitled to 
 
         benefits under section 85.27.  Iowa Code section 85.27 provides 
 
         that claimant is entitled to reasonable medical expenses for a 
 
         work-related injury.  The employer and its insurance carrier have 
 
         the right to choose a treating physician, but section 85.27 does 
 
         not give them the right to invade the province of medical 
 
         professionals in determining what diagnostic tests and/or methods 
 
         of treatment are to be utilized.  Martin v. Armour Dial Co., 
 
         Inc., File No. 754732 (Arbitration Decision filed July 31, 1985.)
 
         
 
              In the case at hand, Dr. McLaughlin, the company physician, 
 
         referred claimant to Dr. Pontarelli.  Defendant acquiesced to Dr. 
 
         Pontarelli's treatment of claimant.  Dr. Pontarelli was the only 
 
         authorized physician.  Defendant cannot object to the methods of 
 
         treatment utilized by Dr. Pontarelli.  He recommended treatment 
 
         at the New Life Fitness Center, a back clinic.  Claimant is 
 
         entitled to this treatment under section 85.27.
 
         
 
              Claimant is also entitled to the payment of a medical bill 
 
         to Dr. Pontarelli at the Steindler Orthopedic Clinic in the 
 
         amount of $22.  The parties have previously stipulated that the 
 
         provider of the services would testify that the treatment was 
 
         reasonable and necessary treatment of the alleged work injury and 
 
         defendant would not offer contrary evidence.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Finally, there is the issue whether claimant is entitled to 
 
         benefits under section 86.13.  In the prehearing report, the 
 
         parties stipulated to item 11 as follows:
 
         
 
              Bifurcated Claims.
 
              Claimant's claim for 86.13 which has been bifurcated
 
              from these proceedings:
 
         
 
                     (x)  Remains asserted.      ( )  Is now waived.
 
         
 
              The parties stipulated to item 11 in error.  According to 
 
         the hearing assignment order which was filed by Deputy Industrial 
 
         Commissioner Helenjean Walleser on July 28, 1988, section 86.13 
 
         was listed as a hearing issue under paragraph three.  There was 
 
         no mention on the face of the hearing assignment order that the 
 
         issue was bifurcated.  Since the prehearing deputy did not 
 
         designate 86.13 as a bifurcated issue, section 86.13 remained an 
 
         issue to be proven at the hearing held on October 27, 1988.
 
         
 
              Section 86.13 of the Iowa Code provides in relevant portion:
 
         
 
                   If a delay in commencement or termination of benefits 
 
              occurs without reasonable or probable cause or excuse, the 
 
              industrial commissioner shall award benefits in addition to 
 
              those benefits payable under this chapter, or chapter 85, 
 
              85A, or 85B, up to fifty percent of the amount of benefits 
 
              that were unreasonably delayed or denied.
 
         
 
              Under section 86.13 benefits are not awarded for medical 
 
         expenses.  The section 86.13 benefits are only applicable to 
 
         weekly compensation benefits.  Zahn v. Iowa State Men's 
 
         Reformatory, IV Iowa Industrial Commissioner Report 409 (1983).
 
         
 
              If it is alleged that an employer wrongfully withholds 
 
         weekly compensation benefits from a claimant, the claimant must 
 
         establish the benefits are withheld unreasonably in order for the 
 
         Claimant to receive additional benefits under section 86.13.  
 
         Curtis v. Swift Independent Packing, IV Iowa Industrial 
 
         Commissioner Report 88 at 93 (1983).  In a previous decision 
 
         before the Division of Industrial Services, a hearing deputy has 
 
         ruled that it is reasonable for an employer to withhold benefits 
 
         when the employer is not alerted to occurrences which would 
 
         notify a reasonable person that benefits will be.due or when 
 
         there is not work time lost.  McCormick v. Sunsprout, I-1 Iowa 
 
         Industrial Commissioner Decisions 142 at 144 (1984).
 
         
 
              In a separate decision before the Division of Industrial 
 
         Services, the same deputy industrial commissioner has awarded 
 
         benefits under section 86.13.  There was an unreasonable delay 
 
         since there were no contradictions in the claimant's claim.  
 
         Willis v. Ruan Transport Corporation, IV Iowa Industrial 
 
         Commissioner Report 395 at 396 (1984).  In the Willis case at 396 
 
         the deputy wrote:
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              ...Reports and letters from the doctor are consistent with 
 
              claimant's statements regarding his injury.
 
         
 
                   There were no ambiguities and inconsistencies in 
 
              claimant's claim.  Withholding benefits was arbitrary and 
 
              unreasonable.  The five percent award based on Iowa Code 
 
              section 86.13 will be attached to healing period only. 
 
              Although the evidence presented clearly relates claimant's 
 
              permanent impairment to his injury, defendants will be given 
 
              the benefit of the doubt as to whether or not a failure to 
 
              pay permanent disability also was unreasonable.  Claimant 
 
              had prior back troubles and conceivably some portion of his 
 
              impairment might have been related to those difficulties or 
 
              to a preexisting arthritis rather than to his injury.
 
         
 
              Here, claimant has not met her burden of proving that 
 
         defendant has unreasonably withheld her weekly compensation 
 
         benefits or that without probable cause, the defendant has 
 
         withheld the benefits.  At the October hearing the parties 
 
         stipulated defendant paid claimant through November 27, 1987 for 
 
         weekly benefits.  It would not be unreasonable for defendant to 
 
         stop payment on that date.  The date was more than thirty days 
 
         after Dr. Mirbegian's report of October 23, 1987 which stated 
 
         claimant could return to work.  Such a decision is reasonable in 
 
         light of the facts.  Therefore, no benefits are due to claimant 
 
         under section 86.13.
 
         
 
                     FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         principles of law previously stated, the following findings of 
 
         fact and conclusions of law are made:
 
         
 
              Finding 1.  Claimant sustained a back and foot injury 
 
         arising out of and in the course of her employment on January 12, 
 
         1987.
 
         
 
              Finding 2.  Claimant sustained only a temporary disability 
 
         to her left foot as a result of her injury on January 12, 1987.
 
         
 
              Finding 3.  As a result of the injury on January 12, 1987, 
 
         claimant has an attributable functional impairment of 5 percent 
 
         of the body as a whole.
 
         
 
              Finding 4.  Claimant reached maximum recovery on January 5, 
 
         1988.
 
         
 
              Conclusion A.  Claimant has met her burden of proving she 
 
         has a 12 percent permanent partial disability.
 
         
 
              Conclusion B.  Claimant was in the healing period from 
 
         January 12, 1987 to January 5, 1988.
 
         
 
              Finding 5.  Claimant incurred reasonable medical expenses as 
 
         a result of her injury on January 12, 1987.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Finding 6.  As a result of the January 12, 1987 injury, 
 
         claimant may incur further medical expenses including treatment 
 
         at the New Life Fitness Center.
 
         
 
              Conclusion C.  Claimant met her burden of proving that she 
 
         is entitled to medical expenses and that she will be entitled to 
 
         reasonable and necessary future medical expenses, including 
 
         treatment at the New Life Fitness Center.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, defendant is to pay unto claimant sixty (60) 
 
         weeks of permanent partial disability benefits at the stipulated 
 
         rate of two hundred forty-five and 22/100 ($245.22) dollars per 
 
         week as a result of the injury on January 12, 1987.
 
         
 
              Defendant is to also pay unto claimant fifty-one and one 
 
         seventh (51 1/7) weeks of healing period benefits at the 
 
         stipulated rate of two hundred forty-five and 22/100 ($245.22) 
 
         dollars per week as a result of the injury on January 12, 1987.
 
         
 
              Defendant is to also pay medical expenses in the amount of 
 
         twenty-two ($22) dollars to Steindler Orthopedic Clinic.
 
         
 
              Defendant is also ordered to pay future reasonable and 
 
         necessary medical expenses related to claimant's lower back, 
 
         including, but not limited to, the costs of treatment at the New 
 
         Life Fitness Center.
 
         
 
              Payments that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         
 
              Defendant is to be given credit for all benefits previously 
 
         paid to claimant.
 
         
 
              Costs of this action are assessed against the defendant 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendant shall file a claim activity report upon payment of 
 
         this award..
 
         
 
              Signed and filed this 16th day of June, 1989.
 
              
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       MICHELLE A McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Copies to:
 
         
 
         Mr. Emmit George, Jr.
 
         Attorney at Law
 
         500 Dubuque St.
 
         PO Box 3090
 
         Iowa City, IA  52244
 
         
 
         Mr. Harry Dahl
 
         Attorney at Law
 
         974 - 73rd St., STE 16
 
         Des Moines, Ia  50312
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            51803
 
                                            Filed June 16, 1989
 
                                            MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CYNTHIA SAWDEY,
 
         
 
              Claimant,                               File No. 843379
 
         
 
         vs.                                       A R B I T R A T I 0 N
 
         
 
         SHELLER-GLOBE CORPORATION,                   D E C I S I 0 N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         51803
 
         
 
              Claimant sustained a foot and back injury while she was at 
 
         work.  A 55 gallon barrel fell on claimant's foot.  Claimant 
 
         pushed the barrel back into the storage cabinet.
 
         
 
              Within 48 hours, claimant had low back pain.  Claimant's 
 
         foot injury was only temporary.  She sustained a 5 percent 
 
         functional impairment to her back.  Claimant did not return to 
 
         work.  She returned to college.  Claimant had a 12 percent 
 
         permanent partial disability.