Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
       		                      :
 
            BASIL SKIDMORE, 	      :
 
		                      :
 
                 Claimant, 	      :
 
		                      :
 
  		            vs.       :
 
        		              :      File No. 844542
 
            ALTER TRADING CORP.,      :
 
		                      :        A P P E A L
 
                 Employer, 	      :
 
		                      :      D E C I S I O N
 
		            and       :
 
                		      :
 
            LIBERTY MUTUAL INSURANCE  :
 
            COMPANIES,    	      :
 
		                      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ____________________________________________________________
 
            
 
            STATEMENT OF THE CASE
 
            Claimant appeals from an arbitration decision awarding 
 
            permanent partial disability benefits as a result of an 
 
            injury sustained on January 27, 1987.
 
            The record on appeal consists of the transcript of the 
 
            arbitration hearing; claimant's exhibits 1 through 3; and 
 
            joint exhibits A through G.  Both parties filed briefs on 
 
            appeal.
 
            issues
 
            Claimant states the issue on appeal is the nature and extent 
 
            of claimant's disability.
 
            review of the evidence
 
            The arbitration decision filed March 14, 1991 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
 
            
 
                 The analysis of the evidence in conjunction with the 
 
            law in the arbitration decision is adopted with the 
 
            following addition.
 
            Claimant has an 18 percent of the body as a whole impairment 
 
            as a result of his injury.  Claimant has a substantial loss 
 
            of earnings, in that claimant was making in excess of 
 
            $26,000 per year, and now has no earnings.  Claimant's 
 
            present occupation is as a self-employed Realtor.  Although 
 
            it would be speculation to predict whether claimant's 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            business will be profitable in the future, the record shows 
 
            that to date claimant has not been able to replace the 
 
            earnings he enjoyed at the time of his injury.  Claimant has 
 
            shown good motivation to work, having applied for over 200 
 
            jobs, and engaged in retraining to obtain his real estate 
 
            license.
 
            Claimant is not totally unemployable, however.  Claimant has 
 
            skills within his restrictions that he can offer an 
 
            employer.  The defendant employer did make some initial 
 
            effort to accommodate claimant's injury, but the end result 
 
            was that claimant cannot work for defendant employer because 
 
            of his impairment, and defendant employer has not found a 
 
            position for him to accommodate his restrictions.  
 
            Defendants' eleventh hour statement that a job might be 
 
            found for claimant is far outweighed by the many months 
 
            claimant has been unemployed since his injury.  
 
            Based on claimant's age, education, impairment, past work 
 
            experience, and all the other factors of industrial 
 
            disability, it is determined that claimant has an industrial 
 
            disability of 45 percent.
 
            findings of fact
 
            The findings of fact contained in the arbitration decision 
 
            of March 14, 1991 is adopted herein.
 
            conclusions of law
 
            The conclusions of law contained in the arbitration decision 
 
            of March 14, 1991 is adopted herein, except the conclusion 
 
            of law as to claimant's percentage of industrial disability.
 
            Claimant's industrial disability as a result of his work 
 
            injury is 45 percent.
 
            WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            That defendants pay to claimant two hundred twenty-five 
 
            (225) weeks of permanent partial disability benefits at the 
 
            stipulated rate of three hundred twenty-seven and 72/100 
 
            dollars ($327.72) commencing January 14, 1989.
 
            That defendants pay accrued weekly benefits in a lump sum 
 
            and receive credit against the award for weekly benefits 
 
            previously paid.
 
            That defendants shall pay interest on the benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            That defendants shall pay the costs of this action including 
 
            the cost of the transcription of the hearing proceeding.
 
            That defendants receive a credit of five hundred fifty-two 
 
            and 00/100 dollars ($552.00) advanced to claimant for real 
 
            estate school.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            Signed and filed this ____ day of October, 1991.
 
            
 
            
 
            
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James M. Hood
 
            Attorney at Law
 
            302 Union Arcade Bldg.
 
            Davenport, Iowa 5280l
 
            
 
            Mr. Greg A. Egbers
 
            Attorney at Law
 
            600 Union Arcade Bldg.
 
            111 E. 3rd St.
 
            Davenport, Iowa 52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9999
 
            Filed October 31, 1991
 
            Byron K. Orton
 
            JMI
 
            before the iowa industrial commissioner
 
            _____________________________________________________________	
 
		                      :
 
            BASIL SKIDMORE,           :
 
 		                      :
 
                 Claimant,	      :
 
		                      :
 
		            vs.       :
 
        		              :      File No. 844542
 
            ALTER TRADING CORP.,      :
 
		                      :        A P P E A L
 
                 Employer, 	      :
 
		                      :      D E C I S I O N
 
		            and       :
 
                		      :
 
            LIBERTY MUTUAL INSURANCE  :
 
            COMPANIES,     	      :
 
		                      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ____________________________________________________________
 
            _____
 
            Short form affirmance of deputy's decision with additional 
 
            analysis, modifying industrial disability award of 20 
 
            percent.  Claimant, age 45, had an impairment rating of 18 
 
            percent of the body as a whole.  Claimant was making $26,000 
 
            at the time of his injury, but is now unemployed.  Claimant 
 
            had shown good motivation to find work, and had retrained to 
 
            become a real estate agent.  Claimant had not made a profit 
 
            in this occupation at the time of hearing.  Claimant was 
 
            awarded industrial disability of 45 percent.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BASIL SKIDMORE,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 844542
 
            ALTER TRADING CORP.,          :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANIES,                    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Basil 
 
            Skidmore, claimant, against Alter Trading Corporation, 
 
            employer, and Liberty Mutual Insurance Companies, insurance 
 
            carrier, to recover benefits under the Iowa Workers' 
 
            Compensation Act as a result of an injury sustained on 
 
            January 27, 1987.  This matter came on for hearing before 
 
            the undersigned deputy industrial commissioner on February 
 
            27, 1991.  The claimant was present and testified.  Also 
 
            present and testifying was John W. Gentzkow, Vice President 
 
            of Alter Trading Corporation.  The record in this case 
 
            consists of joint exhibits A-G and claimant's exhibits 1-3.  
 
            The case was considered fully submitted at the close of the 
 
            hearing.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and order, the 
 
            parties have stipulated as follows:
 
            
 
                 1.  That an employer-employee relationship existed 
 
            between claimant and employer at the time of the alleged 
 
            injury;
 
            
 
                 2.  That claimant sustained an injury on January 27, 
 
            1987, which arose out of and in the course of employment 
 
            with employer;
 
            
 
                 3.  That the alleged injury is a cause of temporary 
 
            disability during a period of recovery;
 
            
 
                 4.  That the work injury is a cause of permanent 
 
            disability;
 
            
 
                 5.  That claimant is entitled to healing period 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            benefits from July 31, 1987 through June 11, 1987 and from 
 
            March 5, 1988 through January 13, 1989;
 
            
 
                 6.  That the permanent disability is an industrial 
 
            disability to the body as a whole;
 
            
 
                 7.  That the commencement date for permanent partial 
 
            disability, in the event such benefits are awarded, is 
 
            January 14, 1989;
 
            
 
                 8.  That in the event of an award of weekly benefits, 
 
            the rate of weekly compensation is $327.72 per week;
 
            
 
                 9.  That all requested medical benefits have been or 
 
            will be paid by defendants; and,
 
            
 
                 10.  That defendants are entitled to a credit for 
 
            healing period benefits paid to claimant from January 31, 
 
            1987 through June 11, 1987 and from March 5, 1988 through 
 
            January 13, 1989 and for permanent partial disability 
 
            benefits which have been paid and continue to be paid since 
 
            January 14, 1989 at the rate of $327.72 per week and for 
 
            $552.00 in tuition money paid to claimant for real estate 
 
            school.
 
            
 
                 The only issue remaining to be decided is the extent of 
 
            permanent disability, if any.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, the arguments made and the 
 
            evidence contained in the exhibits herein, and makes the 
 
            following findings:
 
            
 
                 Claimant was born on August 14, 1945 and graduated from 
 
            high school in 1963.  He completed a home study 
 
            correspondence course in electricity in 1971-1972 and 
 
            attended Muscatine Community College for one year.  He 
 
            studied management supervision but did not graduate from the 
 
            program.  He worked at various times as a service station 
 
            attendant, assembler, warehouseman, fire fighter and 
 
            construction/maintenance electrician.  In May 1986, he com
 
            menced employment with Alter Trading Corporation and worked 
 
            as a maintenance electrician.  This work included preventive 
 
            maintenance, installation of new equipment, replacing and 
 
            changing defective and burnt out motors and general trouble 
 
            shooting.  He described this work as heavy in exertional 
 
            level with lifting requirements of 15 to 500 pounds.
 
            
 
                 As to his medical problems prior to January 27, 1987, 
 
            claimant testified that he has had since 1979 a history of 
 
            facial pain diagnosed as trigeminal neuralgia for which he 
 
            underwent seven surgical procedures and missed about 2 1/2 
 
            years of work.  His last surgery was in 1983 and since that 
 
            time his facial pain has not been severe or debilitating.  
 
            He stated he has had no other medical problems which have 
 
            left him with permanent defects or physical restrictions.
 
            
 
                 As to the January 27, 1987 injury, claimant testified 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            that he was standing on a conveyor belt changing a light 
 
            bulb when another employee inadvertently turned on the belt 
 
            and he fell injuring his left shoulder and suffering massive 
 
            contusions and bruises.  He has treated by various 
 
            physicians and considers Robert J. Chesser, M.D., his 
 
            treating physician.  He was off work January 31, 1987 
 
            through June 11, 1987 when he was released to return to 
 
            light duty by John M. Hoffman, M.D.  He testified that it 
 
            was his intention to gradually ease into heavier work.  
 
            However, in November 1987, his pain became worse and by 
 
            March 1988, it became so severe that Dr. Hoffman took him 
 
            off all work activity.  He testified that although he 
 
            received no salary from the company after March 1988, he 
 
            remained on the payroll until January 1990.
 
            
 
                 Claimant further testified that his treatment has been 
 
            primarily conservative consisting of physical therapy, heat 
 
            packs, TENS unit and Cortisone injections.
 
            
 
                 Claimant further testified that he was released to 
 
            return to work in December 1989 with restrictions imposed by 
 
            Dr. Chesser which included no overhead lifting or repetitive 
 
            lifting in excess of two pounds.  He was given an impairment 
 
            rating of 30 percent of the left upper extremity.  In 
 
            January 1990, he spoke with Mr. Hough at Alter Trading 
 
            Corporation and asked whether they had any employment which 
 
            would accommodate his restrictions.  He testified that he 
 
            was told that no employment existed at the company for him 
 
            in view of his physical limitations.  Prior to this time, he 
 
            attended real estate school and successfully completed the 
 
            program and obtained his license in January 1990.  He has 
 
            been an independent real estate agent since January 1990 but 
 
            has made no money in this business.  In 1990, he suffered a 
 
            loss of $1,500.
 
            
 
                 Claimant testified that his left shoulder impingement 
 
            severely incapacitates him from performing activities 
 
            requiring bilateral manual dexterity and therefore he is 
 
            unable to perform any of his past work activity.  He cannot 
 
            use his left arm above waist level and cannot lift more than 
 
            a gallon of milk.
 
            
 
                 Mr. Gentzkow testified that it was his understanding 
 
            that when claimant approached Mr. Hough in January 1990, he 
 
            was already established in the real estate business.  In any 
 
            event, he agreed that no jobs existed at Alter at that time 
 
            which could accommodate the restrictions imposed on claimant 
 
            by Dr. Chesser.  However, he also testified that since 
 
            January 1991, a possibility of employment with Alter exists 
 
            for claimant in their recycling operation.  He emphasized 
 
            that before offering any job to claimant, he would have to 
 
            undergo a complete physical evaluation.
 
            
 
                 The pertinent medical evidence of record reveals that 
 
            on January 27, 1987, the claimant presented to Paul 
 
            Hartmann, M.D., with complaints of back, left shoulder and 
 
            neck pain after being struck by a conveyor belt during the 
 
            course of his duties while at work.  On examination, he was 
 
            noted to have extremely limited range of motion of the left 
 
            shoulder and tenderness over the C7 spinous process.  
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Initial x-rays were negative.  His shoulder was placed in a 
 
            sling and he was prescribed pain medication and physical 
 
            therapy.  He was reevaluated by Dr. Hartmann on March 13, 
 
            1987 and 50 percent improvement was noted (Exhibit B).
 
            
 
                 On April 23, 1987, claimant was evaluated by Dennis L. 
 
            Miller, an orthopedist.  He presented with complaints of 
 
            pain in the anterior aspect of the left shoulder.  Due to an 
 
            inability to tolerate anti-inflammatory medications, he was 
 
            taking Tylenol #3 at this time.  On examination, Dr. Miller 
 
            noted no bruising or abrasions about the shoulder area or 
 
            definite muscle atrophy.  Full range of motion of the neck, 
 
            including full rotation and lateral bending was observed.  
 
            There was no tenderness over the upper thoracic spine.  
 
            There was no tenderness along the scapula.  He had fairly 
 
            generalized tenderness to palpitation over the anterior and 
 
            superior aspect of the left shoulder.  He had full activity 
 
            range of motion although he did the motion with considerable 
 
            grimacing.  No crepitus was evident.  Most of his discomfort 
 
            seemed to be going from about 90-120 degree elevation.  Dr. 
 
            Miller did not think there was any definite muscle weakness 
 
            in the upper extremity nor was there any sensory loss to 
 
            light touch.  He also made films of the shoulder in the AP, 
 
            lateral projections.  These were within normal limits.  Dr. 
 
            Miller could make no definite diagnoses other than contusion 
 
            to the shoulder.  He was advised to take plain Tylenol and 
 
            to continue with physical therapy (Ex. E).
 
            
 
                 Dr. Miller reexamined claimant on May 8, 1987 and noted 
 
            that "[h]e has full active and passive range of motion.  The 
 
            ranges are nice and symmetrical.  There is no atrophy of the 
 
            upper arm circumference or the forearm circumference 
 
            compared to the opposite arm.  There is tenderness about the 
 
            shoulder but it's fairly generalized.  He really had good 
 
            strength of abduction at 90o."  (Ex. E, page 3)  Again, Dr. 
 
            Miller indicated that he could not make a specific diagnosis 
 
            but ruled out rotator cuff tear.  He urged claimant to try 
 
            to increase his activity.  On May 22, 1987, Dr. Miller 
 
            reexamined claimant and found his condition essentially 
 
            unchanged from the previous two examinations.  He noted that 
 
            his responses to palpitation were somewhat hyperactive and 
 
            inappropriate.  It was his opinion that his symptoms were 
 
            out of portion to the physical findings (Ex. E, p. 4).
 
            
 
                 Claimant returned to Dr. Hartmann on June 2, 1987 and 
 
            he felt that a second opinion was warranted.  He therefore 
 
            referred claimant to John M. Hoffman, an orthopedist.  Dr. 
 
            Hoffman initially saw claimant on June 9, 1987.  Dr. 
 
            Hoffman's clinical impression was of a shoulder impingement 
 
            syndrome.  He gave claimant a subacromial bursa injection 
 
            and recommended that he be off work for one week and then 
 
            return to work.  Claimant returned to work and saw Dr. 
 
            Hoffman on June 18, 1987 for follow-up evaluation.  His 
 
            examination was essentially unchanged with good motion and 
 
            strength but positive shoulder impingement.  To rule out a 
 
            rotator cuff tear, an arthrogram was performed on July 1, 
 
            1987.  The test was negative.  Claimant was then seen by Dr. 
 
            Hoffmann on July 21, 1987.  Since he had been unresponsive 
 
            to physical therapy and anti-inflammatory medications, 
 
            another cortical steroid injection was tried.  He was 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            restricted from performing heavy work activity and overhead 
 
            work using the left upper extremity.  Dr. Hoffman 
 
            subsequently saw claimant on September 3, 1987, November 24, 
 
            1987 and March 8, 1988.  On all occasions, his symptoms had 
 
            not changed but examination revealed full range of motion 
 
            and full strength.  An x-ray of the AC joint taken on March 
 
            3, 1988, did not show any osteolysis or degenerative joint 
 
            changes in that area.  Nevertheless, in view of his 
 
            discomfort, a steroid injection was performed to which the 
 
            claimant had an unusual reaction.  On March 8, 1988, Dr. 
 
            Hoffman prescribed Tylenol with Codeine and Tolectin (Ex. 
 
            C).
 
            
 
                 Claimant was then referred by Sara Jones, 
 
            rehabilitation nurse, to the Franciscan Rehabilitation 
 
            Center in Rock Island, Illinois for evaluation.  He was seen 
 
            by Robert J. Chesser, M.D., on March 24, 1988 for 
 
            evaluation.  He diagnosed chronic bursitis and recommended 
 
            physical therapy.  To rule out any carpal tunnel entrapment, 
 
            Dr. Chesser recommended NCV studies.  On April 5, 1988, EMG 
 
            and nerve conduction studies were performed and were within 
 
            normal limits.  There was nothing to indicate any peripheral 
 
            denervation or entrapment of the carpal tunnel.  Dr. Chesser 
 
            then recommended a work hardening program and a 
 
            psychological assessment.  He stated that "I am unable to 
 
            find much objective to account for the extent of his pain 
 
            symptoms, but continue to feel that there may be an 
 
            underlying bursitis or tendinitis contributing to his 
 
            symptoms."  (Ex. A, p. 10)
 
            
 
                 Claimant was referred by Dr. Chesser on April 7, 1988, 
 
            for a Work Fitness Evaluation.  A two day evaluation was 
 
            conducted and a physical capacity evaluation report stated 
 
            that "Mr. Skidmore's stated level of discomfort was not 
 
            noted to be consistent with  observed pain behavior or pain 
 
            relief techniques."  (Ex. G, p. 15)  The validity of the 
 
            results was questionable due to Mr. Skidmore's self-limiting 
 
            performance.  On May 6, 1988, Dr. Chesser released claimant 
 
            to return to work with restrictions placing him on a "30 lb. 
 
            weight limit and no overhead lifting."  (Ex. A, p. 16)
 
            
 
                 On May 11, 1988, claimant began participation in a work 
 
            hardening program.  On May 20, 1988, Dr. Chesser reported 
 
            that "I continue to find little to account for his ongoing 
 
            symptoms."  (Ex. A, p. 18)  Claimant's symptoms persisted 
 
            and when seen on June 3, 1988 by Dr. Chesser, he noted a 
 
            very consistent drop-off inflection at about 90 degrees on 
 
            isokinetic testing.  He felt this warranted further study, 
 
            namely, an arthroscopy (Ex. A, p. 21).
 
            
 
                 On June 3, 1988, claimant was evaluated by Thomas L. 
 
            VonGillern, orthopedist.  It was his impression that 
 
            claimant had an impingement with chronic subacromial 
 
            bursitis and mild acromioclavicular joint narrowing.  An 
 
            arthrogram was recommended to rule out rotator cuff tear.  
 
            This was performed on July 8, 1988 and showed no definite 
 
            rotator cuff tear but did show evidence of a definite 
 
            impingement syndrome.  His shoulder was injected with 
 
            Depo-Medrol without reaction.  Dr. VonGillern reexamined 
 
            claimant on November 16, 1988 and noted evidence of marked 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            cogwheeling and overreaction with marked grimacing with any 
 
            attempted range of motion exercises.  It was his opinion 
 
            that claimant's symptom complex is far in excess of his 
 
            physical findings.  A second opinion from Dr. Jersild was 
 
            obtained and he was in concurrence with this assessment (Ex. 
 
            F, p. 3).
 
            
 
                 Claimant's shoulder symptoms persisted and Dr. Chesser 
 
            felt that another orthopedic evaluation was warranted.  On 
 
            December 2, 1988, he indicated that claimant would be 
 
            limited to primarily one-handed activities with a two pound 
 
            left hand lifting limit and no repetitive or overhead 
 
            lifting.  He anticipated these to be only temporary 
 
            restrictions and referred him to the Mayo Clinic for further 
 
            evaluation (Ex. A, p. 38).
 
            
 
                 Claimant was evaluated at the Mayo Clinic from January 
 
            8 through 9, 1989.  Cervical spine and shoulder films were 
 
            performed on January 12, 1989 and revealed hypertrophic 
 
            changes of the cervical spine but no abnormalities of the 
 
            left shoulder.  An MMPI was normal.  An electromyography of 
 
            the left upper extremity was normal with no evidence of 
 
            radiculopathy.  A consultation in the Department of 
 
            Orthopedics revealed post-traumatic mild left shoulder 
 
            rotator cuff tendinitis.  Continued physiotherapy and other 
 
            conservative modalities was recommended.  An orthopedic 
 
            biomechanics laboratory evaluation on the Cybex showed good 
 
            reproducible torque curves and a 60 percent strength 
 
            reduction of all major shoulder muscle groups as compared 
 
            with other normative data for his age.  Surgery was not 
 
            indicated from this evaluation.  It was concluded that he 
 
            could not return to heavy work activity and future work 
 
            should be at the sedentary to light level, that is, ten to 
 
            20 pounds with the restriction of overhead activities.  At 
 
            this time there was no evidence of any permanency (Ex. D, 
 
            pp. 26-27).
 
            
 
                 On March 2, 1989, Dr. Chesser reported that "[a]t this 
 
            time, treatmentwise, I feel there is little more to offer 
 
            him."  (Ex. A, p. 43).  On November 29, 1989, Dr. Chesser 
 
            reported that claimant's MRI was normal and failed to reveal 
 
            any specific abnormality.  He reported, "I continue to feel 
 
            that his symptoms are due to a shoulder impingement and that 
 
            he has reached maximal medical improvement.  Based on his 
 
            ongoing pain symptoms and limited range of motion I feel 
 
            that there is a 30% impairment to the left upper extremity.  
 
            Although I would expect ongoing symptoms, I would not expect 
 
            this to be a progressive disorder."  (Ex. A, p. 44).
 
            
 
                                conclusions of law
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            his employment.  Section 85.3(1).
 
            
 
                 The parties have agreed that on January 27, 1987, 
 
            claimant sustained an injury which arose out of and in the 
 
            course of his employment which caused a temporary total 
 
            disability/healing period from January 31, 1987 through June 
 
            11, 1987 and from March 5, 1988 through January 13, 1989.  
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            At issue is whether claimant's injury resulted in permanent 
 
            disability and, if so, the extent thereof and, additionally, 
 
            whether claimant is an odd-lot employee under Guyton v. 
 
            Irving Jensen Co., 373 N.W.2d 101, 105 (Iowa 1985).
 
            
 
                 In Guyton v. Irving Jensen Co., 373 N.W.2d 101, 103 
 
            (Iowa 1985), the Iowa court formally adopted the "odd-lot 
 
            doctrine."  Under that doctrine a worker becomes an odd-lot 
 
            employee when an injury makes the worker incapable of 
 
            obtaining employment in any well-known branch of the labor 
 
            market.  An odd-lot worker is thus totally disabled if the 
 
            only services the worker can perform are "so limited in 
 
            quality, dependability, or quantity that a reasonably stable 
 
            market for them does not exist.
 
            
 
                 The burden of persuasion on the issue of industrial 
 
            disability always remains with the worker.  However, 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 of suitable employment shifts to the 
 
            employer.  If the employer fails to produce such evidence 
 
            and the trier of fact finds the worker does fall in the 
 
            odd-lot category, the worker is entitled to a finding of 
 
            total disability.  Id.  Even under the odd-lot doctrine, the 
 
            trier of fact is free to determine weight and credibility of 
 
            evidence in determining whether the worker's burden of 
 
            persuasion has been carried, and only in an exceptional case 
 
            would evidence be sufficiently strong to compel a finding of 
 
            total disability as a matter of law.  Id.  In Guyton, the 
 
            court also stated the following regarding determination of a 
 
            worker's industrial loss.
 
            
 
                    The question is more than the one posed by the 
 
                 commissioner concerning what the evidence shows 
 
                 Guyton "can or cannot do."  The question is the 
 
                 extent to which the injury reduced Guyton's 
 
                 earning capacity.  This inquiry cannot be answered 
 
                 merely by exploring the limitations on his ability 
 
                 to perform physical activity associated with 
 
                 employment.  It requires consideration of all the 
 
                 factors that bear on his actual employability.  
 
                 See New Orleans (Gulfwide) Stevadores v. Turner, 
 
                 661 F.2d 1031, 1042 (5th Cir. 1981) (are there 
 
                 jobs in the community that the worker can do for 
 
                 which he could realistically compete?)  Id.
 
            
 
                 In determining whether claimant is an odd-lot employee, 
 
            it must first be determined whether claimant has made a 
 
            prima facie case of total disability by producing 
 
            substantial evidence that he is not employable in the 
 
            competitive job market.  Although the undersigned cannot 
 
            dispute that claimant has obstacles to employment, it 
 
            clearly has not been shown that he is unemployable.  
 
            Claimant returned to the competitive job market in January 
 
            1990, when he commenced a real estate sales practice.  
 
            Therefore, the evidence does not establish that the only 
 
            services he can perform are so limited in quality, 
 
            dependability or quantity that a reasonable stable market 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            for them does not exist.
 
            
 
                 Claimant does, however, have a permanent partial 
 
            disability.  Dr. Chesser opined that claimant's injury 
 
            represents a 30 percent functional impairment.  This 
 
            converts to 18 percent body as a whole under the AMA 
 
            Guidelines.  There are no other impairment ratings in the 
 
            record.
 
            
 
                 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, 125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 
 
            Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985);  Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 Claimant is 45 years old and a high school graduate.  
 
            His work activity has been primarily manual heavy labor.  
 
            For the past 15 years he has worked as an electrician.  His 
 
            impairment precludes him from performing his past relevant 
 
            work activity.  Despite the paucity of clinical and 
 
            laboratory findings, and based primarily on claimant's 
 
            subjective complaints, Dr. Chesser imposed significant 
 
            lifting limitations on claimant's use of his left upper 
 
            extremity including no overhead work or repetitive lifting 
 
            in excess of two pounds.  A 30 percent functional impairment 
 
            rating to the left upper extremity was given on November 29, 
 
            1989.  This rating was given despite the fact that every 
 
            physician who treated and/or examined the claimant found his 
 
            symptoms to be out of proportion to the objective findings.  
 
            No physician has recommended surgery in view of the negative 
 
            clinical and laboratory findings.  In any event, claimant 
 
            has made numerous attempts to find work to accommodate his 
 
            limitations and eventually successfully completed a real 
 
            estate sales program and obtained his license in the state 
 
            of Iowa and Illinois.  He opened his own business in January 
 
            1990 and testified that he works between 40-50 hours a week 
 
            in this occupation.  This job accommodates his limitations.  
 
            However, claimant has experienced a significant loss of 
 
            earnings since starting his own business and because of the 
 
            nature of the job, he is neither assured of the substantial 
 
            hourly wage nor the benefits he received from working at 
 
            Alter Trading Corporation.  It is evident that his 
 
            impairment restricts him from the large variety of heavy 
 
            laboring occupations that he could otherwise have entered if 
 
            he was not so restricted.  Such heavier labor occupations 
 
            often are significantly more lucrative than jobs classified 
 
            in the sedentary-light weight category, especially those 
 
            jobs which do not require significant educational 
 
            background.  It is evident that claimant's loss of earning 
 
            capacity on account of his injury is significant, but not 
 
            overwhelmingly so.
 
            
 
                 Therefore, considering all of the elements of 
 
            industrial disability, including claimant's age; education; 
 
            past relevant work; successful vocational retraining 
 
            resulting in new employment; a 30 percent functional 
 
            impairment rating to the left upper extremity which converts 
 
            to 18 percent body as a whole impairment under the AMA 
 
            Guidelines; loss of earnings and earning capacity; and 
 
            minimal clinical and laboratory findings which support 
 
            claimant's complaints; the undersigned concludes that 
 
            claimant has sustained a permanent partial disability of 20 
 
            percent for industrial purposes, entitling him to 100 weeks 
 
            of permanent partial disability benefits commencing on 
 
            January 14, 1989.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
                 That defendants pay to claimant one hundred (100) weeks 
 
            of permanent partial disability benefits at the stipulated 
 
            rate of three hundred twenty-seven and 72/l00 dollars 
 
            ($327.72) commencing January 14, 1989.
 
            
 
                 That defendants pay accrued weekly benefits in a lump 
 
            sum and receive credit against the award for weekly benefits 
 
            previously paid.
 
            
 
                 That defendants shall pay interest on the benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants receive a credit of five hundred 
 
            fifty-two and no/l00 dollars ($552.00) advanced to claimant 
 
            for real estate school.
 
            
 
                 That defendants file claim activity reports as required 
 
            by this agency.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of March, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James M. Hood
 
            Attorney at Law
 
            302 Union Arcade Bldg
 
            Davenport  IA  52801
 
            
 
            Mr. Greg A. Egbers
 
            Attorney at Law
 
            600 Union Arcade Bldg
 
            111 E 3rd St
 
            Davenport  IA  52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1803; 4100
 
                           Filed March 14, 1991
 
                           JEAN M. INGRASSIA
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BASIL SKIDMORE,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 844542
 
            ALTER TRADING CORP.,          :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANIES,                    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1803; 4100
 
            Only issue in this case is the extent of permanent 
 
            disability, if any.
 
            Claimant, a 45 year old male with a high school education 
 
            and relevant work as an electrician, injured his left upper 
 
            extremity diagnosed as left shoulder impingement syndrome.  
 
            His subjective complaints of pain and dysfunction appear out 
 
            of proportion to clinical and laboratory findings.  A 
 
            functional impairment rating of 30% to the left upper 
 
            extremity was given by claimant's treating physician.  He 
 
            imposed 10 to 20 pound lifting restriction with no overhead 
 
            activity.
 
            Claimant found not to be an odd-lot employee as he retrained 
 
            and earned his real estate sales license and opened his own 
 
            business.  He was found to have a 20% industrial disability 
 
            and entitled to 100 weeks of permanent partial disability 
 
            benefits.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-2500; 5-1803
 
                                          Filed August 30, 1990
 
                                          CLAIR R. CRAMER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CANDACE HOLMES,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File Nos. 844544
 
            GLENWOOD STATE HOSPITAL       :                861984
 
            SCHOOL,                       :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-2500
 
            Medical benefits awarded where one doctor gave a definitive 
 
            opinion as to causal connection to the work injury, and 
 
            second doctor's statement was ambiguous as to causal 
 
            connection.
 
            
 
            5-1803
 
            Claimant, 39 years old, with ratings of permanent partial 
 
            impairment of 15 percent and 20-25 percent of the body as a 
 
            whole, lifting restriction of 40 pounds, high school 
 
            education, and two years of college, work experience in 
 
            insurance, residential treatment, and as an obstetrics aide 
 
            and medication aide, but who had not sought alternative 
 
            employment, awarded 40 percent industrial disability.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                        BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         CANDACE HOLMES,
 
         
 
              Claimant,                            File Nos. 844544
 
                                                             861984
 
         vs.
 
                                                A R B I T R A T I 0 N
 
         GLENWOOD STATE HOSPITAL-SCHOOL,
 
                                                   D E C I S I 0 N
 
              Employer,
 
                                                      F I L E D
 
         and
 
                                                     SEP 5 1989
 
         STATE OF IOWA,
 
                                                INDUSTRIAL SERVICES
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This decision concerns two proceedings in arbitration 
 
         brought by Candace Holmes against the Glenwood State 
 
         Hospital-School.  The case was heard and fully submitted at 
 
         Council Bluffs, Iowa, on January 31, 1989.  The record in the 
 
         proceeding consists of testimony from Candace Holmes, Jeannine 
 
         McKay, Jacqueline Holmes, and Franklin Robert Huff.  The record 
 
         also contains joint exhibits 1 through 23 and defendants' 
 
         exhibits 1 through 4.
 
         
 
                                      ISSUES
 
         
 
              Claimant seeks additional compensation for healing period 
 
         and permanent partial disability.  During the introductory 
 
         portion of the hearing, it was stipulated by the parties that all 
 
         of claimant's permanent partial disability was due to the 
 
         November 3, 1986 injury.  Upon that stipulation being made, 
 
         claimant dismissed file number 861984.  It was further stipulated 
 
         that claimant had been paid healing period compensation for the 
 
         period of January 27, 1987 to January 26, 1988.  Additional 
 
         healing period was claimed for the period commencing August 1, 
 
         1988 to November 24, 1988.  The parties stipulated that in the 
 
         event the employer is liable for the second surgery which 
 
         claimant underwent, the amount of healing period compensation 
 
         sought is correct.  The issues identified for determination are 
 
         whether claimant's second surgery and its resulting healing 
 
         period and medical expenses were proximately caused by the 
 
         November 3, 1986 injury and also determination of claimant's 
 
         entitlement to permanent partial disability compensation.
 
         
 
                               SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Of all the evidence received at the hearing, only that 
 
         considered most pertinent to this decision is discussed. 
 
         Conclusions about what the evidence showed are inevitable with 
 
         any summarization.  The conclusions in the following summary 
 
         should be considered to be preliminary findings of fact.
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Candace Holmes is a 39-year-old single lady who graduated 
 
         from high school in 1968 and attended two years of college on a 
 
         part-time basis.  Candace stated that her grades were mostly 
 
         "A's" and "B's."  Candace is a Certified Medication Aide.
 
         
 
              Claimant had worked at the Glenwood State Hospital-School 
 
         (hereinafter referred to as GSHS) during high school as an 
 
         assistant child care worker.  After high school, she held a 
 
         variety of positions.  She has worked for Hartford Insurance 
 
         Company and Western Electric.  She has been an obstetrical 
 
         technician at Bergen Mercy Hospital.  In 1981 and 1982, she was 
 
         in the advertising business.  In 1983, she returned to Iowa and 
 
         resumed employment at GSHS.
 
         
 
              In 1971, claimant was involved in an automobile accident in 
 
         which she suffered a severe brain contusion which resulted in 
 
         paralysis on the left side of her body.  Claimant stated that she 
 
         eventually recovered from the incident, except for slight 
 
         residual spasticity in her left hand.  Claimant also related a 
 
         1979 automobile accident in which she injured her cervical and 
 
         thoracic spine.  Claimant stated that she had never consulted a 
 
         physician for her low back prior to the time she returned to Iowa 
 
         in 1983.
 
         
 
              Claimant testified that, in January of 1983, she returned to 
 
         Iowa in order to resume work with the mentally retarded at GSHS. 
 
         She stated that due to a hiring freeze, she was not able to 
 
         commence work until December of 1983.  She was hired to be a 
 
         Resident Treatment Worker.  Claimant stated that the duties of a 
 
         Resident Treatment Worker include providing all of the daily 
 
         needs of clients including getting them up, bathing them and 
 
         subduing behavior problems.  Some patients are not ambulatory.
 
         
 
              Claimant stated that, on November 3, 1986, she was working 
 
         with Jeannine McKay lifting a client onto a toilet when she felt 
 
         a searing pain down her leg and in her low back.  Claimant 
 
         reported the incident to her supervisors and obtained treatment 
 
         from her family physician.  Claimant stated that the doctor took 
 
         her off work and gave her pain medications, but that she was sent 
 
         back to work, despite the fact that she was still in pain.  
 
         Claimant testified that she worked to the best of her ability, 
 
         but required assistance from coworkers.  Claimant stated that she 
 
         worked until January 27, 1987 wearing a longline bra and back 
 
         brace.  She was then referred to R. Schuyler Gooding, M.D., by 
 
         her family physician.  Diagnostic tests were interpreted by Dr. 
 
         Gooding as showing a herniated disc at the L4-L5 level and a 
 
         minimal bulging of the L5-S1 disc which was not felt to be 
 
         surgically significant (exhibit 18).  Claimant testified that she 
 
         requested that Dr. Gooding perform surgery on both of the discs, 
 
         but that he performed surgery only at one level.  On February 5, 
 
         1987, Dr. Gooding performed a left L4-5 interlaminal discectomy 
 
         (exhibit 16).
 
         
 
              Claimant testified that she initially felt better following 
 
         the surgery, but that her condition then worsened.  She gained 
 
         some weight.  The hospital admission from February 3, 1987 showed 
 
         her weight to be 183 pounds (defendants' exhibit 2, pages 1 and 
 
         5).  Claimant entered a weight loss program wherein her weight 
 
         was reduced from 194 pounds to 143 pounds.  Claimant stated that 
 
         while Dr. Gooding felt her pain complaints were due to the excess 
 
         weight which she was carrying, the weight loss did not cause the 
 
         pain to go away.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant stated that she returned to work in February, 1988 
 
         as a Resident Treatment Worker on the late night shift.  Claimant 
 
         stated she worked one hour into her shift and was doing her job, 
 
         but was then sent home.  She stated that she has not been 
 
         recalled to work despite a number of inquiries which she made to 
 
         the employer.
 
         
 
              Claimant testified that she still had sharp spasm in her low 
 
         back and pain down her left hip when she attempted to return to 
 
         work.  She stated that the pain interfered with her daily 
 
         activities.   Claimant eventually sought further medical 
 
         treatment from Leslie Hellbusch, M.D., in August, 1988 at the 
 
         recommendation of a friend.  After further diagnostic tests were 
 
         conducted, claimant underwent further surgery which was performed 
 
         by Dr. Hellbusch on August 2, 1988 (joint exhibits 5 and 6).  The 
 
         surgery was described as a partial hemilaminectomy at L4,5 on the 
 
         left and a micro-lumbar discectomy at L5,S1 on the left.
 
         
 
              Claimant testified that following the second surgery, she 
 
         felt fine for approximately six weeks, but that her condition 
 
         then worsened and that it is now the same as it was prior to the 
 
         time of the second surgery.  Claimant denied sustaining any other 
 
         injuries or incidents between the time of the November 3, 1986 
 
         injury and the time she first saw Dr. Hellbusch.  Claimant stated 
 
         that she has constant pain that continues even when she lies 
 
         down. Claimant stated that she was quite physically active prior 
 
         to her injury, but that she is now unable to dance, garden or 
 
         engage in intimate relationships.  She stated that her walking is 
 
         limited to one and one-half blocks and that bending causes a 
 
         shooting pain in her hip.
 
         
 
              Claimant testified that she is currently in a vocational 
 
         rehabilitation program conducted in Omaha, Nebraska, where she is 
 
         training to become a chemical dependency counselor.  Claimant 
 
         stated that she attends class two days per week and that 
 
         graduation is not expected until 1991.  Claimant expressed 
 
         uncertainty with regard to whether or not she will be able to 
 
         work as a counselor.  She stated that many of the jobs require 
 
         driving, an activity which severely aggravates her symptoms.
 
         
 
              Claimant has sought to return to work at GSHS at lighter 
 
         positions, but none have been offered to her.  It was claimant's 
 
         understanding that she was still on a recall list and that she 
 
         knew of no one with less seniority who had been called to fill 
 
         any of those positions in lieu of her.
 
         
 
              Claimant stated that she considers herself to be disabled 
 
         now and that she did in the spring of 1988, despite the fact that 
 
         she listed her health as good when applying for the lighter 
 
         positions.
 
         
 
              Jeannine McKay, a Resident Treatment Worker at GSHS, 
 
         recalled the incident of November 3, 1986 of which claimant 
 
         testified. McKay confirmed claimant's description of the duties 
 
         of a Resident Treatment Worker.  McKay recalled when claimant 
 
         returned to work for a few days following the injury.  McKay 
 
         stated that claimant frequently complained of pain and wore a 
 
         back support and longline bra.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Jacqueline Holmes, claimant's 64-year-old mother, is also a 
 
         retiree from GSHS and was severely injured and beaten by a 
 
         patient at GSHS.  Jacqueline stated that Candace liked her work 
 
         at GSHS.
 
         
 
              Jacqueline stated that claimant initially felt better 
 
         following the surgery performed by Dr. Gooding, but that she then 
 
         worsened again.  Jacqueline described a similar scenario 
 
         following the surgery performed by Dr. Hellbusch.  Jacqueline 
 
         does not know of any other low back injury which claimant has 
 
         sustained, except the one that occurred on November 3, 1986.  She 
 
         stated that prior to that injury, claimant was very active, but 
 
         that now she is limited and unable to perform activities such as 
 
         vacuuming, scrubbing, waxing, yard work and housekeeping.  
 
         Jacqueline stated that when claimant returns from attending the 
 
         classes at Omaha, she has difficulty getting out of the car.  She 
 
         stated that she normally spends the following day in bed.  
 
         Jacqueline stated that claimant is not capable of working as a 
 
         Resident Treatment Worker.
 
         
 
              Franklin Robert Huff, claimant's cohabitant, stated that 
 
         prior to this injury claimant was active and engaged in things 
 
         such as camping, bowling, swimming and travel.  He stated that 
 
         she could do anything she desired and could perform her work 
 
         well. Huff stated that, since the injury, claimant is in pain and 
 
         unable to engage in hobbies.  He stated that he does most of the 
 
         housekeeping.  He stated that Candace is unable to do the work of 
 
         a Resident Treatment Worker.  Huff stated that claimant's current 
 
         problems are about the same as they were prior to the time of her 
 
         first surgery.  He stated that her walking is limited and that 
 
         she never walked for more than a mile to his knowledge except for 
 
         in the time shortly after surgery.  Huff stated that he works 
 
         afternoons at GSHS.  Huff confirmed that claimant showed marked 
 
         improvement following both surgeries, but then in a month or six 
 
         weeks, began to deteriorate.
 
         
 
              On February 1, 1988, Dr. Gooding rated claimant as having a 
 
         15 percent permanent impairment of the body as a whole.  He 
 
         recommended that she limit her activities, in particular lifting, 
 
         to a 40-pound maximum weight and that she avoid regular lifting 
 
         of more than 25 pounds (joint exhibit 10).  Dr. Gooding 
 
         subsequently issued a comprehensive report in which he stated 
 
         that he found no objective or subjective evidence that any 
 
         problem at claimant's L5-S1 disc level was a result of the 
 
         original on-the-job injury (joint exhibit 21; defendants' exhibit 
 
         2).  Dr. Gooding stated that when he released claimant in early 
 
         1988, it was his impression that claimant's complaints and 
 
         neurological examination did not suggest a medical problem other 
 
         than that she was continuing to recover satisfactorily from the 
 
         L4-5 disc surgery. He found nothing to indicate that she had a 
 
         significant L5-S1 disc abnormality.
 
         
 
              Dr. Hellbusch expressed the opinion that the surgery which 
 
         he performed was required due to the November 3, 1986 injury 
 
         (joint exhibit 3).  Dr. Hellbusch eventually rated claimant as 
 
         having a 20-25 percent permanent partial disability of the body 
 
         as a whole. He assigned a 20-pound lifting restriction and 
 
         recommended that she avoid repetitive low back bending (joint 
 
         exhibit 1).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The first issue to be addressed is that of causation.  A 
 
         cause is proximate if it is a substantial factor in bringing 
 
         about the result; it need not be the only cause.  Blacksmith v. 
 
         All-American, Inc., 290 N.W.2d 3348, 354 (Iowa 1980).  The 
 
         situation which is presented is that of an individual who had no 
 
         known back problems prior to November 3, 1986, sustained an 
 
         incident of injury and has since had continuing back problems 
 
         with two surgeries.  There are no known intervening traumas.  
 
         Claimant's burden of proof is a preponderance of the evidence.  
 
         It is therefore determined that the opinion of Dr. Hellbusch 
 
         regarding causation is accepted due to the fact that claimant's 
 
         symptoms had their onset on November 3, 1986, have not resolved, 
 
         and there has been no known intervening trauma.  The diagnostic 
 
         studies conducted under the direction of Dr. Gooding did show an 
 
         abnormality at two levels of claimant's spine.  Defendants are 
 
         therefore responsible for the additional stipulated healing 
 
         period running from August 1, 1988 to November 24, 1988 and for 
 
         the costs of medical treatment which were incurred in connection 
 
         with the second surgery.
 
         
 
              As claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Industrial disability or loss of earning capacity is a 
 
         concept that is quite similar to impairment of earning capacity, 
 
         an element of damage in a tort case.  Impairment of physical 
 
         capacity creates an inference of lessened earning capacity.  The 
 
         basic element to be determined, however, is the reduction in 
 
         value of the general earning capacity of the person, rather than 
 
         the loss of wages or earnings in a specific occupation.  
 
         Post-injury earnings create a presumption of earning capacity.  
 
         The earnings are not synonymous with earning capacity and the 
 
         presumption may be rebutted by evidence showing the earnings to 
 
         be an unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
         (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
         516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
         34th Biennial Report, 218 (1979): 2 Larson Workmen's Compensation 
 
         Law, sections 57.21 and 57.31.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The opinions, ratings and restrictions issued by Drs. 
 
         Gooding and Hellbusch are not at great variance.  Claimant and 
 
         the witnesses she called have indicated that her condition is not 
 
         appreciably different since the second surgery.  When all the 
 
         evidence is considered, it is determined that the second surgery 
 
         had little, if any, overall effect upon claimant's ultimate 
 
         disability.  Her physical condition was not appreciably changed 
 
         by the second surgery with regard to her symptoms and 
 
         capabilities. Claimant appears to be intelligent.  She has a 
 
         diverse work background.  Nevertheless, her injury was 
 
         sufficiently severe to foreclose her from portions of the labor 
 
         market which were previously available to her.  It has made her 
 
         unable to perform the duties of a Resident Treatment Worker.  
 
         Claimant went from February until August of 1988 on a hiring list 
 
         for lighter jobs, but was not offered any by GSHS.  There is 
 
         nothing in the record to indicate that any lighter jobs were 
 
         offered to her by the employer during the time that she was under 
 
         medical treatment for the second surgery or up to the time of 
 
         hearing.  This illustrates the difficulty that claimant will 
 
         likely have in obtaining employment at a level of earnings 
 
         comparable to those which she enjoyed as a Resident Treatment 
 
         Worker.  When all the material factors of industrial disability 
 
         are considered, it is determined that Candace Holmes sustained a 
 
         40 percent permanent partial disability as the result of the 
 
         injuries which she suffered on November 3, 1986.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  The November 3, 1986 injury to claimant's low back was a 
 
         substantial factor in producing the need for the surgery and 
 
         other medical treatment which claimant received under the 
 
         direction of Dr. Leslie Hellbusch.
 
         
 
              2.  Candace Holmes has experienced a 40 percent loss of her 
 
         earning capacity as a result of the physical impairment and 
 
         limitations which were produced by the November 3, 1986 injury.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  The injury of November 3, 1986 was a proximate cause of 
 
         the surgery and treatment provided to Candace Holmes by Dr. 
 
         Leslie Hellbusch and the period of recuperation following surgery 
 
         and medical expenses incurred in the course of that treatment.
 
         
 
              3.  Defendants are responsible for the costs of medical 
 
         treatment incurred under the direction of Dr. Hellbusch.
 
         
 
              4.  Defendants are responsible to pay healing period 
 
         compensation to claimant for the period of August 1, 1988 to 
 
         November 24, 1988, a period of 16 4/7 weeks.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              5.  Claimant is entitled to recover 200 weeks of 
 
         compensation for permanent partial disability under the 
 
         provisions of Code section 85.34(2)(u).
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant sixteen 
 
         and four-sevenths (16 4/7) weeks of healing period compensation 
 
         at the stipulated rate of one hundred eighty-two and 73/100 
 
         dollars ($182.73) per week payable commencing August 1, 1988.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant two 
 
         hundred (200) weeks of compensation for permanent partial 
 
         disability at the stipulated rate of one hundred eighty-two and 
 
         73/100 dollars ($182.73) per week payable commencing January 27, 
 
         1988.  The permanent partial disability compensation is to be 
 
         interrupted by the sixteen and four-sevenths (16 4/7) weeks of 
 
         healing period payable commencing August 1, 1988 and then resumed 
 
         to be paid commencing November 25, 1988 until the entire amount 
 
         is fully paid.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         action pursuant to Division of Industrial Services Rule 343-4.33 
 
         in the amount of one hundred twenty and 00/100 dollars ($120.00) 
 
         as shown in items B and C of the cost statement submitted by 
 
         claimant.
 
         
 
              IT IS FURTHER ORDERED that defendants file claim activity 
 
         reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 5th day of September, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Sheldon M. Gallner
 
         Attorney at Law
 
         803 Third Avenue
 
         P.O. Box 1588
 
         Council Bluffs, Iowa  51502
 
         
 
         Mr. Robert D. Wilson
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Building
 
         Des Moines, Iowa  50319
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            51108.50, 51402.30, 51803
 
                                            Filed September 5, 1989
 
                                            MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CANDACE HOLMES,
 
         
 
              Claimant,                           File Nos. 844544
 
                                                            861984
 
         vs.
 
                                               A R B I T R A T I 0 N
 
         
 
         GLENWOOD STATE HOSPITAL-SCHOOL,          D E C I S I O N
 
         
 
              Employer,
 
         
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         51108.50, 51402.30, 51803
 
         
 
              Where the medical opinions differed on causation, the 
 
         scenario of the onset of symptoms and lack of any intervening 
 
         trauma was found to be sufficient to find that the second low 
 
         back surgery was also proximately caused by the original injury.
 
         
 
              Claimant awarded 40 percent permanent partial disability 
 
         based upon a functional impairment of 15-20 percent and lifting 
 
         restrictions in the range of 25 pounds.  She was unable to resume 
 
         her original job and the employer had not made other employment 
 
         available to her.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LISA J. CARTER,
 
         
 
              Claimant,
 
                                             File Nos. 844568 & 825649
 
         vs.
 
                                               A R B I T R A T I O N
 
         PURETHANE, INC.,
 
                                                  D E C I S I O N
 
              Employer,
 
         
 
         and                                         F I L E D
 
         
 
         AETNA COMMERCIAL INSURANCE                 NOV 17 1989
 
         
 
         LIFE & CASUALTY,                   IOWA INDUSTRIAL COMMISSIONER
 
              
 
              Insurance Carrier,
 
              Defendants.
 
              
 
              
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by claimant, 
 
         Lisa Carter, against Purethane, Inc., employer, and Aetna 
 
         Commercial Insurance Life & Casualty, insurance carrier, 
 
         defendants, to recover benefits as a result of alleged injuries 
 
         sustained on May 16, 1986 and January 14, 1987.  This matter came 
 
         on for hearing before the deputy industrial commissioner in Cedar 
 
         Rapids, Iowa on October 17, 1989.  The record consists of the 
 
         testimony of the claimant, Dr. Steve Hammerstrom, Kenny Carter, 
 
         Bill Schlabach and Pat O'Neil; claimant's exhibits 1 through 34 
 
         and defendants' exhibits 1 through 17.
 
         
 
                                      ISSUES
 
         
 
              The issues the parties set out in the hearing report for 
 
         resolution are:
 
         
 
              1.  Whether claimant's injuries arose out of and in the 
 
         course of her employment;
 
              
 
              2.  Whether claimant's disability is causally connected to 
 
         her injuries;
 
              
 
              3.  The nature and extent of claimant's disability; and,
 
              
 
            4.  Whether claimant is entitled to benefits under 85.27.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant testified she is a 1981 high school graduate and 
 
         has no other formal post high school education.  Claimant 
 
         described her various jobs before becoming employed with 
 
         defendant employer around the end of July 1985.  Claimant's jobs 
 
         involved school maintenance; teachers' and lunchroom aide; 
 
         various other cleaning jobs; and, loading and unloading and 
 
         cleaning trucks.  Claimant indicated these jobs involved heavy 
 
         work and lifting.  Claimant contends she never had back problems 
 
         prior to her Purethane job but had bruised her wrist and backside 
 
         of her elbow resulting in numbness and tingling in 1983, but they 
 
         were treated and healed. Claimant said she never lost time from 
 
         work as a result of these injuries.
 
         
 
              Claimant described her duties at defendant employer as 
 
         preparing inserts; moving and lifting 40 to 50 pound trays of 
 
         production parts; carrying 28 to 43 pound boxes of products to 
 
         load on pallets; and working the trimming line using a scalpel 
 
         and clippers to cut excess foam off the products in the 
 
         manufacturing process.  Claimant said all the jobs involved 
 
         lifting and repetitious motion.  Later claimant said the heaviest 
 
         weight she lifted was 63 pounds which involved a metal tray 
 
         containing all steel arm rests.
 
              
 
              Claimant indicated she first noticed low back pain the first 
 
         part of May 1986 resulting from carrying trays.  Claimant said 
 
         the pain became more severe affecting her arms, legs and causing 
 
         numbness and tingling.  Claimant emphasized she never had gone to 
 
         a chiropractor until she went to Steve Hammerstrom, D.C., on June 
 
         6, 1986.  Claimant said he moved her vertebra and worked on her 
 
         arms and legs.  Claimant indicated she has gone to Dr. 
 
         Hammerstrom 310 times since her first visit in 1986.  Claimant 
 
         said she feels better after her treatments, but the pain never 
 
         completely goes away.  Claimant related that the length and 
 
         nature of the treatments depend on whether her vertebra is to the 
 
         left or right or feels bruised.  Claimant stated she sees the 
 
         chiropractor for services one to two times a week.  Claimant said 
 
         a letter was sent to Purethane by the chiropractor and defendant 
 
         employer agreed to lighter duty for the claimant.  Claimant said 
 
         she then was moved around and complained that her job was too 
 
         strenuous.  Claimant was then moved in April of 1987 to the job 
 
         of trimming and cutting Omega arm rests.  Claimant contends the 
 
         pain became worse and existed seven to eight hours of her working 
 
         day.
 
         
 
              July 4, 1987 was claimant's last day of work at Purethane. 
 
         Claimant said she missed approximately 47 days of work between 
 
         the summer of 1986 and 1987.  She stated the employer would no 
 
         longer place her in a position where she would not get injured 
 
         anymore.
 
         
 
              Claimant testified that prior to June of 1986, she 
 
         participated in volleyball, boating, horseback riding and bike 
 
         riding 10 to 15 miles per day.  Claimant contends she has not 
 
         ridden her personal bike since April of 1986.  Claimant said in 
 
         1981 to early 1982, she was involved in martial arts and advanced 
 
         to the green belt rank.  Claimant indicated she was also involved 
 
         in weight lifting in 1982 and could bench press 65 pounds. 
 
         Claimant said Dr. Hammerstrom gave her the okay to return to work 
 
         on February 17, 1988.  Claimant said she went to work for Casey's 
 
         in February 1988 and worked until July 1988 and has not worked 
 
         anywhere else since.  Claimant acknowledged that her chiropractor 
 
         found she had Scheuermann's disease in her back.  Claimant said 
 
         this disease is caused by lack of calcium and causes the bones to 
 
         degenerate.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant stated her hand and wrist pain became severe in 
 
         January of 1987.  Claimant emphasized her wrist or hand did not 
 
         bother her prior to that time, at least no electrical shocks ran 
 
         through her hand.  Claimant said her hand was drawn into a claw 
 
         position and through chiropractic treatment she can extend it 
 
         now. Claimant says she presently tries ice massage and sits on 
 
         ice during the day and sleeps on ice in the evening.  She also 
 
         said she sits in a hot tub during the day.  Claimant admitted she 
 
         takes no medicine, but takes vitamin supplements.  Claimant said 
 
         she takes powdered calcium and iron pills.  Claimant purchases 
 
         these vitamin supplements from Dr. Hammerstrom.
 
              
 
              Claimant said she saw James B. Worrell, M.D., at defendants' 
 
         request in August of 1986 and February 1989.  Claimant indicated 
 
         the 1989 appointment lasted 20 minutes.  Claimant said the doctor 
 
         was willing to prescribe medicine but she emphasized she did not 
 
         want to take prescription drugs as they were not good for the 
 
         body.  Claimant said they did not discuss any litigation or 
 
         workers' compensation decision.
 
         
 
              Claimant said she has not found work but wants to work. 
 
         Claimant contends she cannot work full time because of her pain. 
 
         Claimant acknowledged she does not anticipate going back to full 
 
         time work and does not known when she thinks she will try to 
 
         work. Claimant revealed she has not looked for work since 
 
         quitting Casey's and has pursued no other education or grants.  
 
         Claimant said she is living off an inheritance resulting from her 
 
         mother's death in March of 1987.  Claimant said she did not try 
 
         to work at defendant employer's again.
 
              
 
              On cross-examination claimant admitted to certain injuries 
 
         which she did not tell her chiropractor or David W. Beck, M.D., 
 
         or Dr. Worrell.  These injuries were namely:  stiff joints, knees 
 
         and fingers (Polyarthritis at age 17); November 1980, back pain 
 
         when a boy jumped on her back; right hand injury in 1982; hurt 
 
         her elbow in 1982; and, contusion to her elbow and twisting her 
 
         right wrist in February 1983.  Claimant did not recall visiting 
 
         the University of Iowa emergency room on June 12, 1986 and having 
 
         x-rays taken and being told her back pain was due to 
 
         Scheuermann's disease. Claimant revealed that she had a candida 
 
         yeast infection in 1983 resulting in her eating every two hours 
 
         and sleeping a lot. Claimant said she gained 43 pounds more than 
 
         her weight when she left defendant employer in July of 1987.  
 
         Claimant stated she now weighs 108 pounds versus 178 in November 
 
         of 1987 when she was put on a diet by the chiropractor.  Claimant 
 
         emphasized the weight loss was not recommended due to 
 
         Scheuermann's disease but was because of her candida condition.
 
         
 
              Dr. Hammerstrom testified his first contact with the 
 
         claimant was June 6, 1986.  He indicated claimant had multiple 
 
         subluxation (misaligned vertebra) and concluded claimant's pain 
 
         was due to lack of motion in her spine.  He emphasized that 
 
         people respond slowly and over long-term with that condition.  
 
         Dr. Hammerstrom said he determined claimant had Scheuermann's 
 
         disease when he was sent her x-rays.  He described it as a 
 
         congenital disease causing early degeneration in the mid-back or 
 
         thoracic vertebra.  Vertebra growth is subdued causing arthritis 
 
         like condition and less motion.  He indicated spurs show up and 
 
         the borders of the vertebra are affected and the vertebra are 
 
         shortened.  Dr. Hammerstrom revealed claimant has a 40 year old 
 
         spine in a 20 year old body and this causes lack of motion.  Dr. 
 
         Hammerstrom emphasized that all the back is affected because the 
 
         cervical and lumbar vertebra must take over and receive 
 
         additional stress since the thoracic vertebra had become less 
 
         mobile.  Dr. Hammerstrom said he could not tell when she first 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         contracted the disease, but is limited by stopping or going into 
 
         regression.  Dr. Hammerstrom said it never reverses itself.  He 
 
         emphasized her back will never get younger.  Dr. Hammerstrom 
 
         recommended claimant not lift weights over 20 pounds; no 
 
         repetitive sitting all day, and, no heavy or repetitious lifting.  
 
         Dr. Hammerstrom acknowledged that he went by only what complaints 
 
         claimant gave him which involved no problems prior to her work at 
 
         defendant employer's.  He indicated claimant made some progress 
 
         but nothing past the spring of 1989.  Dr. Hammerstrom disputed 
 
         Dr. Worrell's rating and lack of testing and time to arm his 
 
         conclusions.  Dr. Hammerstrom opined a 45 percent disability to 
 
         claimant's body as a whole as a result of all of claimant's 
 
         injury at Purethane to her low back. He indicated his intent was 
 
         to relate it to job disability as it applies to his spinal 
 
         disability book.  The doctor acknowledged that his letter of July 
 
         1, 1988 (Claimant's Exhibit 20) opined a maximum healing on that 
 
         date which is inconsistent with his testimony today indicating 
 
         the healing period was reached in the spring of 1989.  In a 
 
         letter to claimant's attorney in July of 1988, Dr. Hammerstrom 
 
         said:  "...I feel she plateaued in her care on 06-23-88."  (Cl. 
 
         Ex. 21).  Dr. Hammerstrom acknowledged he had never been in 
 
         defendant employer's plant to see what in fact claimant was 
 
         lifting or doing, nor had he reviewed the University of Iowa 
 
         emergency room's report of June 1986, which diagnosed claimant's 
 
         condition as Scheuermann's disease.  Dr. Hammerstrom was 
 
         questioned extensively as to certain insurance form exhibits. Dr. 
 
         Hammerstrom acknowledged the inconsistencies and contradictions 
 
         on the forms as they relate to his testimony and other exhibits.  
 
         The doctor rationalized some inconsistencies as typographical 
 
         errors or actions by his insurance clerk, even though he 
 
         acknowledged that he actually signed the form.  Dr. Hammerstrom 
 
         indicated that if they were not filled out as they were, he would 
 
         not have received payments from the medical insurance company 
 
         since the workers' compensation insurance carrier would not 
 
         recognize his coverage.  There was extensive cross-examination 
 
         concerning the same forms relating to the original injury or 
 
         reinjuring and the confusion or inconsistencies of the form 
 
         versus Dr. Hammerstrom's testimony.  The doctor admitted that the 
 
         preexisting Scheuermann's disease itself is unrelated to work at 
 
         defendant employer's.  The doctor said that if it were not for 
 
         the Scheuermann's disease, claimant could have done the work at 
 
         Purethane.  The doctor said there was no permanent impairment of 
 
         claimant's right wrist.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Kenny Carter testified he is claimant's brother and that he 
 
         worked at Purethane in the mid 1986's to early 1987 at the same 
 
         assembly line as the claimant.  He said the claimant was active 
 
         in bike riding and horseback riding, but these activities stopped 
 
         after the Purethane incident.  He stated he lived with the 
 
         claimant during this period and saw claimant resting on the sofa 
 
         with ice.  He said that he could not tell whether claimant was in 
 
         pain.
 
         
 
              Bill Schlabach testified he is claimant's fiance and they 
 
         live together.  He said he could tell claimant is in pain by the 
 
         way she sits and moves.  He said she does not ride a bike nor go 
 
         speed boating anymore.
 
              
 
              Pat O'Neil testified he has worked for defendant employer 
 
         for five years and has worked on the production floor and was 
 
         made production supervisor in the winter of 1987.  He said he is 
 
         familiar with claimant during 1985, '86 and '87.  Her work was 
 
         not piece work but done on an hourly basis.  He stated that the 
 
         company went on a share plan in the fall of 1987.  He 
 
         acknowledged that claimant's work record included no quality of 
 
         work or amount of work complaint.  He testified defendant 
 
         employer tried to accommodate claimant.  He indicated the 
 
         heaviest tray claimant would lift was 50 pounds.
 
         
 
              University of Iowa records on June 11, 1986, reflect: 
 
         "Diagnosis:  1.  Back pain due to Scheuermann's disease  2.  
 
         Upper back and arm numbness."  (Cl. Ex. 1, page 2) The University 
 
         of Iowa Radiology report reflects:  "CHANGES SUGGESTIVE OF MILD 
 
         SCHUEURMANN'S [sic] DISEASE, AS EVIDENCE BY MULTIPLE SCHMORLS 
 
         [sic] NODES AND WEDGING OF A MID THORACIC VERTEBRAL BODY.  NO 
 
         ACUTE ABNORMALITY."  (Cl. Ex. 2) Dr. David W. Beck, M.D., 
 
         Assistant Professor of Neurosurgery at The University of Iowa, 
 
         wrote on June 17, 1936:
 
         
 
              It is my impression that Lisa's pain is from all the lifting 
 
              she does at work.  I think she is experiencing cervical and 
 
              upper thoracic muscle spasms.  I told her that I think all 
 
              her pain would go away if she laid off work for awhile, but 
 
              if that is not feasible it would be helpful if she tried 
 
              different positions of her head and neck at work.  I also 
 
              think that if the chiropractic manipulations are helpful 
 
              that she ought to continue those.
 
              
 
         (Cl. Ex. 4)
 
         
 
              The Department of Roentgenology, Palmer College, reflects:
 
              
 
              IMPRESSIONS:
 
              
 
              1.  Essentially negative osseous study, with the exception 
 
              of residual deformity from healed Scheuermann's disease.
 
              2.  Early degenerative changes involving the thoracic spine. 
 
              3.  Minimal thoracic scoliosis.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
         (Cl. Ex. 5)
 
         
 
              Dr. Hammerstrom signed a form on June 9, 1986, for 
 
         Prudential Insurance Company that reflects:
 
         
 
              10.  WAS CONDITION RELATED TO:
 
                A.  PATIENT'S EMPLOYMENT
 
         
 
                   YES    X   NO
 
         
 
              Thoracic radicalgia with degenerative joint disease from 
 
              healed Scheuermann's disease with minimal thoracic scoliosis 
 
              complicated by myofascitis and neurospinal compression 
 
              syndrome of T1, T6 and T8
 
              
 
         (Cl. Ex. 7, p. 3)
 
         
 
              On a standard surgeon's report form Dr. Hammerstrom wrote: 
 
         "Acute carpal tunnel syndrome w/associated rotation subluxation 
 
         of T1.  Objective findings:  paresthesis [sic] of rt. 4 & 5 
 
         digits, rt. bicep 56% weaker than..." (Cl. Ex. 11)
 
         
 
              On medical claim forms to Principal Financial Insurance 
 
         dated June 4, 1987 and September 20, 1987, the claimant signed 
 
         and checked that the illness began April 8, 1987 and was not work 
 
         related.  Page 5 of claimant's exhibit 13 reflects:  "Lisa hurt 
 
         her low back while helping a friend lift a fishing boat out of 
 
         the lake on April 8, 1987.  She was not injured at work which 
 
         should explain why we did not file for worker's compensation."  
 
         (Cl. Ex. 13, p. 5)
 
         
 
              Dr. Hammerstrom's letter of August 3, 1987 reflects:
 
         
 
              Because of the chronic degenerative condition of Lisa 
 
              Carter's spine caused by the Scheuermann's [sic] Disease I 
 
              instructed Lisa to quit her job at Purethane, Inc.
 
              
 
              Lisa's job required her to do extremely repetitive lifting 
 
              at sometimes odd angles which in turn created an acute 
 
              inflammatory neuro-musculo skeletal [sic] problem.  This 
 
              caused her extreme pain which resulted in excessive sleep 
 
              loss.
 
              
 
              Because of this work, I found it impossible to make any 
 
              rehabilitative progress with Lisa.  In fact, her condition 
 
              continued to regress.  Therefore, I found it necessary to 
 
              have her quit her job.
 
              
 
              Her current diagnosis is acute thoraco-lumbar [sic] pain 
 
              with rotation subluxation of L5, L1 and T8.
 
              
 
         (Cl. Ex. 15)
 
         
 
              On claimant's exhibit 16 dated August 6, 1987, Dr. 
 
         Hammerstrom indicated, "[b]oth injuries were definitely caused by 
 
         the work she was doing" and opined temporary 16 to 20 percent 
 
         disability and a guess of permanent disability of 8 to 12 
 
         percent. Dr. Hammerstrom's oral testimony appears he means 
 
         disability rather than impairment.  Of course it is the 
 
         undersigned's sole responsibility to determine disability as a 
 
         matter of law.  The medical opinions should only go to 
 
         impairment.  On March 28, 1988, Dr. Hammerstrom wrote:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Again, after doing some repetitive lifting of items such as 
 
              gallons of milk, eight packs of pop and other grocery items, 
 
              her lower back at the L1-T12 vertebral levels flared up.  It 
 
              becomes more and more clear that permanent damage to her 
 
              spine has occurred.  It seems that anytime she does any 
 
              physical activity her vertebrae become inflamed.  How much 
 
              of this is caused by the Scheurmann's [sic] Disease and how 
 
              much is caused by her injury at Purethane, Inc. has yet to 
 
              be determined.  One thing is certain.  Both contributed to 
 
              this condition.
 
              
 
         (Cl. Ex. 19)
 
         
 
              On July 1, 1988, Dr. Hammerstrom wrote:
 
              
 
              Enclosed is a complete spinal impairment rating report on 
 
              Lisa Carter.  Her whole body disability came out to 58%.  I 
 
              feel she plateaued in her care on 06-23-88.  I would 
 
              estimate that her disability during acute care would be 
 
              70-80%.
 
              
 
         (Cl. Ex. 21)
 
         
 
              The undersigned believes the doctor means impairment in 
 
         claimant's exhibit 21 because later on in a letter, he corrected 
 
         the 58% and reduced it to 45% impairment.
 
         
 
              On or around July 28, 1988, claimant and Dr. Hammerstrom 
 
         signed documents (Cl. Ex. 22) and indicated either the injury 
 
         represented was a "...reinjury 2-1-88 of a condition first 
 
         reported on August 17, 1987 and not due to an accident or 
 
         occupational illness."  The form signed by the claimant stated: 
 
         "IT IS A CRIME TO FILL OUT THIS FORM WITH INFORMATION YOU KNOW IS 
 
         FALSE OR TO LEAVE OUT FACTS YOU KNOW ARE IMPORTANT."  Claimant's 
 
         exhibits 23, 24, 26, 28 & 29 are similar to claimant's exhibit 22 
 
         except they refer to August 24, 1988, December 2, 1988, March 8, 
 
         1989, February 7, 1989 and February 9, 1989 dates respectively. 
 
         Dr. Hammerstrom wrote to claimant on November 1, 1988 (Cl. Ex. 
 
         25), "Ms. Carter injured dorso-lumbar area on 08-17-87 and 
 
         reinjured area again on 02-01-88."  On May 8, 1989, Dr. 
 
         Hammerstrom corrected his opined impairment ruling of 58 percent 
 
         to 45 percent. (Cl. Ex. 31)
 
         
 
              On February 23, 1989, Dr. James B. Worrell, M.D., wrote:
 
         
 
              I note a complete impairment rating dictated by Dr. 
 
              Hammerstrom on July 1, 1988.  I don't understand all of the 
 
              manipulations and findings that he outlined but I think an 
 
              impairment rating of 58% of the whole body is absolutely 
 
              absurd.  Lisa Carter has a myofascial pain disorder which I 
 
              am convinced is at least partially aggravated by the 
 
              litigation, the chronic anxiety associated with that.  She 
 
              has absolutely no objective findings on neurological 
 
              examination.  She has no sign of any degenerative or 
 
              progressive neurological disease.  Even the chiropractic 
 
              radiologist indicated on her spinal x-rays that there were 
 
              no major findings except for some old healed Scheuermann's 
 
              disease.  Their impression was essentially negative osseous 
 
              study.  I do think it would be reasonable to assign an 
 
              impairment rating in her case and have this situation 
 
              settled and behind us all.  I think an impairment rating of 
 
              5% to 7% of the body as a whole is more than reasonable and 
 
              appropriate.  She can then get along with her life and try 
 
              to find suitable employment.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
         (Defendants' Ex. 16, pp. 2 & 3)
 
         
 
                                  APPLICABLE LAW
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received injuries on May 16, 1986 and January 
 
         14, 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 claimant has the burden of proving by a preponderance of 
 
         the evidence that the injuries of May 16, 1986 and January 14, 
 
         1987 are causally related to the disability on which she now 
 
         bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
         N.W.2d 867 (1965).  Lindahl v. L.O. Boggs, 236 Iowa 296, 18 
 
         N.W.2d 607 (1945).  A possibility is insufficient; a probability 
 
         is necessary.  Burt v. John Deere Waterloo Tractor Works, 247 
 
         Iowa 691, 73 N.W.2d 732 (1955).  The question of causal 
 
         connection is essentially within the domain of expert testimony.  
 
         Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 
 
         (1960).
 
         
 
              A treating physician's testimony is not entitled to greater 
 
         weight as a matter of law than that of a physician who later 
 
         examines claimant in anticipation of litigation.  Weight to be 
 
         given testimony of physician is a fact issue to be decided by the 
 
         industrial commissioner in light of the record the parties 
 
         develop.  In this regard, both parties may develop facts as to 
 
         the physician's employment in connection with litigation, if so; 
 
         the physician's examination at a later date and not when the 
 
         injuries were fresh; the arrangements as to compensation; the 
 
         extent and nature of the physician's examination; the physician's 
 
         education, experience, training, and practice; and all other 
 
         factors which bear upon the weight and value of the physician's 
 
         testimony may be considered.  Both parties may bring all this 
 
         information to the attention of the fact finder as either 
 
         supporting or weakening the physician's testimony and opinion.  
 
         All factors go to the value of the physician's testimony as a 
 
         matter of fact not as a matter of law.  Rockwell Graphic Systems, 
 
         Inc. v. Prince, 366 N.W.2d 187; 192 (Iowa 1985).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
         N.W.2d 128 (1967).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756, (1956).  
 
         If the claimant had a preexisting condition or disability that is 
 
         aggravated, accelerated, worsened or lighted up so that it 
 
         results in disability, claimant is entitled to recover.  Nicks v 
 
         Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, (1962).
 
              
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, (1960).
 
         
 
              The Iowa Supreme Court cites, apparently with approval, the 
 
         C.J.S. statement that the aggravation should be material if it is 
 
         to be compensable.  Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's 
 
         Compensation section 555(17)a.
 
              
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler, 252 Iowa 613, 620, 106 N.W.2d 591 
 
         (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 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
         Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 
 
         613, 106 N.W.2d 591 (1960).  See also Barz v. Oler, 257 Iowa 508, 
 
         133 N.W.2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 Iowa 
 
         724, 254 N.W. 35 (1934).
 
         
 
                                     ANALYSIS
 
         
 
              Claimant is 26 years old.  Her longest period of employment 
 
         has been with this defendant employer.  Claimant contends her May 
 
         16, 1986 back injury and her January 14, 1987 right wrist injury 
 
         were the result of the nature of her repetitive work.  Claimant 
 
         downplayed, forgot or could not recall some of her medical 
 
         problems she had prior to her alleged injuries.  Claimant 
 
         appeared to be active in repetitive strenuous activity before her 
 
         alleged injuries.  These activities involved bike riding, weight 
 
         lifting, volleyball, horseback riding, martial arts, kicking, 
 
         punching and complete destruction technics.  Claimant contends 
 
         she can no longer do these activities and solely blames it on her 
 
         alleged work related injuries.
 
         
 
              Dr. Hammerstrom originally concluded claimant has 
 
         Scheuermann's disease as did the University of Iowa in June of 
 
         1986 when claimant was taken there on an emergency basis.  Dr. 
 
         Hammerstrom described Scheuermann's disease as congenital and not 
 
         caused by claimant's work. He said that claimant has a 
 
         40-year-old spine in a 20-year-old body.  Claimant did not give 
 
         Dr. Hammerstrom all of her medical history and her doctor only 
 
         went on the history claimant gave him, as incomplete as it was.  
 
         It is obvious that Dr. Hammerstrom rendered his opinions based on 
 
         incomplete medical history, but he is also basing his opinions on 
 
         the belief that claimant's work aggravated a preexisting 
 
         condition.  There are several forms signed by the claimant and/or 
 
         Dr. Hammerstrom that indicate claimant's condition is not work 
 
         related.  These exhibits also indicate different injuries or 
 
         reinjuries.  The undersigned believes exhibit 19 dated March 28, 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         1984, reflects a true status of the confusion and the failure of 
 
         claimant to establish causal connection.  This exhibit indicates 
 
         that claimant had an injury approximately three weeks prior to 
 
         March 28, 1988, while working at Casey's, yet it refers to the 
 
         fact that Dr. Hammerstrom does not know how much of this injury 
 
         is caused by the Scheuermann's disease and how much is caused by 
 
         her injury at Purethane.  Additional confusion results from 
 
         claimant's exhibits 23, 24, 26, 28 and 29, which are various 
 
         forms signed by either the claimant or Dr. Hammerstrom.  Dr. 
 
         Hammerstrom's oral testimony seemed to downplay part of the 
 
         confusion as attributing the manner in which the questions were 
 
         answered as errors, mistakes or the insurance clerk filling out 
 
         the form incorrectly. It is obvious that if the form was filled 
 
         out any differently then they were, Dr. Hammerstrom would not 
 
         have been paid for his chiropractic services rendered to the 
 
         claimant and, therefore, he would have had to look to the 
 
         workers' compensation carrier who denied liability.  The 
 
         undersigned expects insurance forms to be filled out correctly 
 
         and reflect an expected degree of honesty. Dr. Hammerstrom 
 
         acknowledges that his signatures were on those forms and there is 
 
         no testimony that disputes the claimant's signature on the 
 
         respective forms.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant contends she cannot work, at least not the whole 
 
         day.  It appears she is determined at this time to make no effort 
 
         to find any work.  She has done nothing since she quit working at 
 
         Casey's in July of 1988.  It is obvious claimant is content at 
 
         the present and for an undetermined time into the future to live 
 
         off her mother's inheritance.  Claimant has no motivation at this 
 
         time.  She continued to have weekly chiropractic treatment.  It 
 
         is clear claimant seeks these treatments to maintain her spine 
 
         stability affected by her Scheuermann's disease condition and 
 
         that she will not improve.  The undersigned believes claimant's 
 
         condition is the result of her preexisting Scheuermann's disease 
 
         condition which was not caused by nor materially aggravated or 
 
         worsened by her work.  The undersigned further believes that her 
 
         condition is the result of a natural building up of a body 
 
         process coupled with a degenerating congenital disease that 
 
         occurred notwithstanding her work.  If in fact claimant's work 
 
         had any bearing or acceleration of her current condition, 
 
         claimant's nonwork activity had as much, if not greater, affect 
 
         in accelerating her preexisting condition resulting in her 
 
         current disability.  Claimant's exhibit 13, page 5 reflects 
 
         claimant hurt her low back April 8, 1987, while helping a friend 
 
         lift a fishing boat out of the lake.  This nonrelated injury adds 
 
         further confusion to the record.
 
         
 
              The undersigned feels sorry for the claimant.  Sympathy is 
 
         not the rule of law.  Claimant needs to motivate herself and 
 
         maybe the end of this litigation may give claimant some impetus.  
 
         The defendant employer is to be congratulated for attempting to 
 
         accommodate this claimant.  It would be fortunate if some work 
 
         could be found for this claimant.  The record indicates defendant 
 
         insurance company paid 30 weeks of disability payments to the 
 
         claimant.  This is not acknowledgement of liability on the part 
 
         of the defendant.  Such action is praised rather than held 
 
         against the defendants.  Likewise, this type of action prevents 
 
         the possible application of 86.13 if it is later found that 
 
         defendants unduly withheld delayed payments and if that becomes 
 
         an issue in a case.  It is unnecessary to further set out 
 
         inconsistencies, problems or contradictions in the medical 
 
         evidence.
 
         
 
              There is little evidence on the claimant's alleged right 
 
         wrist injury.  In a report (Cl. Ex. 11) it appears it is tied in 
 
         with the claimant's T-1.  The report indicates, "...carpal tunnel 
 
         syndrome w/associated rotation subluxation of T1...."  Of course 
 
         this T-1 problem is the area affected by the Scheuermann's 
 
         disease.  The undersigned believes this right wrist condition is 
 
         not the result of a work injury but is contributed to as much, if 
 
         not more, to claimant's nonwork activity.  There is no impairment 
 
         rating by any doctor as to claimant's wrist.  The undersigned 
 
         finds that claimant's injuries on May 16, 1986 and January 14, 
 
         1987 did not arise out of or in the course of her employment.  
 
         That claimant's disability to her right wrist or to her low back 
 
         is not causally connected to her alleged injuries above.  The 
 
         above findings make any other issues moot.  Claimant takes 
 
         nothing from the pleadings.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                   
 
                                 FINDINGS OF FACT
 
                   
 
              1.  Claimant failed to prove that her May 16, 1986 back 
 
         injury is a result of her employment.
 
              
 
              2.  Claimant failed to prove that her January 14, 1987 right 
 
         wrist injury is the result of her employment.
 
              
 
              3.  Claimant's back impairment and disability is not the 
 
         result of a work related injury on May 16, 1986.
 
              
 
              4.  Claimant has no right wrist impairment as a result of a 
 
         work related injury on January 14, 1987.
 
              
 
              5.  Claimant has a congenital degenerating Scheuermann's 
 
         disease which preexisted her May 16, 1986 injury and was not 
 
         materially aggravated or worsened by any work related injury on 
 
         May 16, 1986.
 
              
 
              6.  Claimant is not motivated to work.
 
                   
 
                                CONCLUSIONS OF LAW
 
                   
 
              Claimant's May 16, 1986 injury did not arise out of or in 
 
         the course of her employment.
 
              
 
              Claimant's January 14, 1987 injury did not arise out of or 
 
         in the course of her employment.
 
              
 
              Claimant's back disability is not causally connected to her 
 
         alleged injury of May 16, 1986.
 
              
 
              Claimant's right wrist alleged disability is not causally 
 
         connected to her alleged injury on January 14, 1987.
 
              
 
              Claimant is entitled to no benefits as a result of her two 
 
         alleged injuries.
 
                   
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
              
 
              That claimant takes nothing from these proceedings.
 
              
 
              That defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 17th day of November, 1989.
 
              
 
              
 
              
 
              
 
              
 
                                       BERNARD J. O'MALLEY
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Davis L. Foster
 
         Attorney at Law
 
         920 5 Dubuque
 
         P O Box 2000
 
         Iowa City, IA  52244
 
         
 
         Mr. Craig A. Levien
 
         Ms. Therese M. Botts
 
         Attorneys at Law
 
         600 Union Arcade Bldg
 
         111 E Third St
 
         Davenport, IA  52801
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         
 
                                            5-1108; 5-1400
 
                                            Filed November 17, 1989
 
                                            BERNARD J. O'MALLEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LISA J. CARTER,
 
         
 
              Claimant,
 
                                           File Nos. 844568 & 825649
 
         vs.
 
                                             A R B I T R A T I O N
 
         PURETHANE, INC.,
 
                                                 D E C I S I O N
 
              Employer,
 
              
 
         and
 
         
 
         AETNA COMMERCIAL INSURANCE
 
         LIFE & CASUALTY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
              
 
              
 
              
 
         5-1400; 5-1108
 
         
 
              Held claimant's degenerating Scheuermann's disease which 
 
         preexisted both her back injury and wrist injury was the cause of 
 
         her disability.  Doctor testified claimant had a 40-year-old 
 
         spine in her 20-year-old body.  Claimant awarded no benefits.