Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DELBERT THOMPSON,             :
 
                                          :         File No. 844676
 
                 Claimant,                :
 
                                          :      A R B I T R A T I O N
 
            vs.                           :
 
                                          :         D E C I S I O N
 
            J I CASE CO.,                 :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Delbert Thompson, against his employer, J I 
 
            Case Co., self-insured employer, defendant.  The case was 
 
            heard on November 14, 1990, in Burlington, Iowa at the Des 
 
            Moines County Courthouse.  The record consists of the 
 
            testimony of claimant and the testimonies of Delbert L. 
 
            Thompson, III, Shanon L. Thompson and Carmeline Ann 
 
            Thompson.  Additionally, the record consists of claimant's 
 
            exhibits 1-17 and defendant's exhibits A and C.  The 
 
            attorneys are advised to review their records more closely.  
 
            Some of the same medical records appeared four times in the 
 
            evidence presented to the undersigned.
 
            
 
                                      issues
 
            
 
                 The sole issue to be determined is:  1) whether 
 
            claimant is entitled to permanent total/partial disability 
 
            benefits.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant is 35 years old.  He is married with three 
 
            children.  He sustained a work related injury to his back on 
 
            January 30, 1987.  He saw the plant nurse immediately after 
 
            the injury.  That day claimant was taken to the emergency 
 
            room at the Burlington Medical Center.
 
            
 
                 Subsequent to his injury, claimant was treated by James 
 
            J. Kivlahan, M.D., and S. C. Lindo, Jr., M.D., general 
 
            practitioners.  He was also treated by three orthopedic 
 
            specialists, James Weinstein, M.D., Koert R. Smith, M.D., 
 
            and William Roberts, M.D.
 
            
 
                 In July of 1987, claimant attempted a return to work 
 
            with defendant employer.  After two evenings of light duty, 
 
            claimant was unable to continue working.  Since that time 
 
            claimant has not worked.  Claimant is currently receiving 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            social security disability benefits.
 
            
 
                                conclusions of law
 
            
 
                 In Diederich v. Tri-City R. Co., 219 Iowa 587, 258 N.W. 
 
            899 (1935) the court, addressing the issue of the meaning of 
 
            disability stated:
 
            
 
                    What is "permanent total disability"?  Does 
 
                 this clause refer to "functional disability" or to 
 
                 "industrial disability"?
 
            
 
                    For clearness we shall use the term "industrial 
 
                 disability" as referring to disability from 
 
                 carrying on a gainful occupation--inability to 
 
                 earn wages.  By "functional disability" we shall 
 
                 refer to the disability to perform one or more of 
 
                 the physical movements which a normal human being 
 
                 can perform.
 
            
 
                    ....
 
            
 
                    It is obvious that "disability" here used 
 
                 cannot refer to mere "functional disability",...
 
            
 
                    It is...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 terms of 
 
                 percentages of the total physical and mental 
 
                 ability of a normal man.
 
            
 
                    ....
 
            
 
                 ...[T]he Compensation law was passed for the 
 
                 purpose of compensating the working man when 
 
                 injured.  The loss which this claimant suffered 
 
                 due to the injury which he received while in the 
 
                 employ of the company is the inability to carry on 
 
                 the work he was doing prior to the time of the 
 
                 injury, or any work which he could perform.  This 
 
                 man at fifty-nine years of age, after thirty years 
 
                 as a street car motorman, with little education, 
 
                 cannot find or hold a position that would not 
 
                 require some manual labor, and, of course, due to 
 
                 the condition of his back, he cannot perform such 
 
                 work.  To say that he might become a stenographer 
 
                 or a lawyer or a clerk or a bookkeeper is to 
 
                 suppose the impossible, for a fifty-nine-year old 
 
                 man, with no education, is not capable of securing 
 
                 or filling any such position.  His disability may 
 
                 be only a twenty-five or thirty per cent 
 
                 disability compared with the one hundred per cent 
 
                 perfect man, but, from the standpoint of his 
 
                 ability to go back to work to earn a living for 
 
                 himself and his family, his disability is a total 
 
                 disability, for he is not able to again operate 
 
                 the street car and perform the work which the 
 
                 company demanded of him prior to the time of the 
 
                 accident.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 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
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985);  Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 Under the odd-lot doctrine, which was formally adopted 
 
            by the Iowa Supreme Court in Guyton v. Irving Jensen Co., 
 
            373 N.W.2d 101, 105 (Iowa 1985), 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 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            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.  Id., citing Lee v. 
 
            Minneapolis Street Railway Company, 230 Minn.315, 320, 41 
 
            N.W.2d 433, 436 (1950).  The rule of odd-lot allocates the 
 
            burden of production of evidence.  If the evidence of degree 
 
            of obvious physical impairment, coupled with other facts 
 
            such as claimant's mental capacity, education, training or 
 
            age, places claimant prima facie in the odd-lot category, 
 
            the burden should be on the employer to show that some kind 
 
            of suitable work is regularly and continuously available to 
 
            the claimant.  Certainly in such cases it should not be 
 
            enough to show that claimant is physically capable of 
 
            performing light work and then round out the case for non
 
            compensable by adding a presumption that light work is 
 
            available.  Guyton, 373 N.W.2d at 105.
 
            
 
                 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 falls in the 
 
            odd-lot category, the worker is entitled to a finding of 
 
            total disability.  Even under the odd-lot doctrine, the 
 
            trier of fact is free to determine the weight and 
 
            credibility of the evidence in determining whether the 
 
            worker's burden of persuasion has been carried.  Only in an 
 
            exceptional case would evidence be sufficiently strong to 
 
            compel a finding of total disability as a matter of law.  
 
            Guyton, 373 N.W.2d at 106.  The court went on to state:
 
            
 
                    The commissioner did not in his analysis 
 
                 address any of the other factors to be considered 
 
                 in determining industrial disability.  Industrial 
 
                 disability means reduced earning capacity.  Bodily 
 
                 impairment is merely one factor in a gauging 
 
                 industrial disability.  Other factors include the 
 
                 worker's age, intelligence, education, 
 
                 qualifications, experience, and the effect of the 
 
                 injury on the worker's ability to obtain suitable 
 
                 work.  See Doerfer Division of CCA v. Nicol, 359 
 
                 N.W.2d 428, 438 (Iowa 1984).  When the combination 
 
                 of factors precludes the worker from obtaining 
 
                 regular employment to earn a living, the worker 
 
                 with only a partial functional disability has a 
 
                 total disability.  See McSpadden v. Big Ben Coal 
 
                 Co, 288 N.W.2d 181, 192 (Iowa 1980).
 
            
 
                 Claimant alleges he is permanently and totally disabled 
 
            or in the alternative he alleges he is an odd-lot employee.  
 
            Defendant denies claimant is totally disabled but does admit 
 
            claimant has sustained some industrial disability.
 
            
 
                 Dr. Roberts has assessed a functional impairment rating 
 
            of five percent to claimant's condition.  He has also 
 
            restricted claimant from lifting more than 30 pounds, from 
 
            sitting or standing for more than one hour at a time, from 
 
            driving for more than one to two hours a day in a vehicle, 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            or from repetitive bending, stooping or reaching.
 
            
 
                 Dr. Weinstein, another orthopedic specialist, rated 
 
            claimant as having a five percent permanent impairment.
 
            
 
                 Dr. Smith ordered a CT scan and a myelogram.  The test 
 
            results were in the normal range although the CT scan did 
 
            show:  "Focal bulging disc at L5-Sl somewhat to the right of 
 
            midline as described.  Otherwise essentially normal lumbar 
 
            CT."
 
            
 
                 Dr. Kivlahan, a general practitioner, wrote in his 
 
            report of August 24, 1988:
 
            
 
                 Delbert continue [sic] to have severe pain in the 
 
                 low back, hip, thigh areas.  He is limited in 
 
                 flexion at the lumbosacral area to 25o because of 
 
                 the pain.  In addition, Delbert has had extensive 
 
                 evaluation by orthpedic [sic] surgeons in 
 
                 Burlington, Cedar Rapids, and Iowa City, Ia.  He 
 
                 has been tried on numerous anti-inflammatory and 
 
                 analgesic medication, TENS Electrical Unit, and 
 
                 physical therapy without significant improvement.
 
            
 
                 Impression:  acute and chronic low back strain.
 
            
 
                 I believe that Delbert is disabled for the 
 
                 present.  He has considerable pain and tenderness 
 
                 low back with almost any type of activity.  I 
 
                 suspect the symptoms and signs will persist for 
 
                 considerable length of time.
 
            
 
                 As of July 10, 1988, Dr. Kivlahan had restricted 
 
            claimant to no lifting greater than five pounds and to 
 
            minimal bending and sitting.
 
            
 
                 Finally, there is the opinion of Dr. Lindo.  He 
 
            concurred with the opinion of Dr. Kivlahan but admitted his 
 
            care of claimant was only secondary.  The restrictions 
 
            imposed by Dr. Lindo included no lifting greater than five 
 
            pounds or no bending or stooping.  He also admitted he would 
 
            defer to the opinions of claimant's treating orthopedic 
 
            surgeons.
 
            
 
                 Claimant is functionally impaired.  He may lift 5 to 30 
 
            pounds.  He is not to repetitively bend, stoop, or reach.  
 
            He can drive for two hours.
 
            
 
                 It is acknowledged Richard B. Erickson, vocational 
 
            consultant, assessed claimant's employability.  In his 
 
            report of October 6, 1988, Mr. Erickson wrote:
 
            
 
                 Dr.J.J.Kivlahan [sic] placed functional 
 
                 restrictions of no lifting over 5 pounds with 
 
                 minimal bending.  Dr. Roberts cited functional 
 
                 limitations which included no lifting greater than 
 
                 30 pounds, no repetitive bending, stooping, 
 
                 reaching, and no sitting for more than one hour at 
 
                 a time.  The therapists who worked with Mr. 
 
                 Thompson in the Work Hardening Program reported a 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 minimal increase in his ability to tolerate 
 
                 activity of approximately 1 to 1Æ hours with 
 
                 frequent rest breaks.  Due to his poor progress 
 
                 towards achieving greater work tolerance, they 
 
                 recommended termination of his involvement in the 
 
                 program.
 
            
 
                 Based on the cited functional restrictions, 
 
                 individually and collectively, I am of the opinion 
 
                 that Mr. Thompson is unable to perform the work of 
 
                 a production welder.
 
            
 
                     ...
 
            
 
                 Dr. Roberts reports Mr. Thompson is able to 
 
                 lift/carry objects weighing up to 30 pounds.  This 
 
                 weight restriction would suggest the ability to 
 
                 perform work of a light classification.  However, 
 
                 Dr.Roberts [sic] places several additional 
 
                 restrictions.  These include a sitting and 
 
                 standing tolerance of 1 hour respectively and no 
 
                 repetitive bending, stooping, or reaching.  (These 
 
                 functional findings aren't consistent with the 
 
                 other two reports or Mr.Thompson's [sic] reported 
 
                 physical capacities.)  Considering these factors, 
 
                 I am of the opinion that the restrictions in his 
 
                 standing and/or sitting tolerance coupled with an 
 
                 inability to do repetitive reaching would have a 
 
                 negative impact on the significant number of 
 
                 unskilled jobs which might be considered.
 
            
 
                 Based on the facts which I have available 
 
                 regarding Mr. Thompson's physical capacities, 
 
                 education, and work history, I am of the opinion 
 
                 that employment isn't a realistic expectation at 
 
                 the present time.  If he is able to increase his 
 
                 activity level and tolerance then vocational 
 
                 rehabilitation efforts are recommended for some 
 
                 form of sedentary or light occupation.  If I can 
 
                 be of additional assitance [sic], please contact 
 
                 me.
 
            
 
                 However, not much weight is given to Mr. Erickson's 
 
            report by the undersigned.  It is not known whether Mr. 
 
            Erickson has ever visited claimant personally, conducted any 
 
            vocational testing, or attempted job placement.  It appears 
 
            to the undersigned that Mr. Erickson has only reviewed 
 
            claimant's medical reports and formulated an opinion of 
 
            nonemployability.
 
            
 
                 Claimant is a young man.  He has many years of 
 
            employability.  Claimant has a high school education.  He 
 
            appears articulate and reasonably intelligent.  Dr. Roberts 
 
            believed claimant was gifted in many areas and could be put 
 
            back to work.  While claimant denies he is capable of 
 
            engaging in shoe sales, it does not appear that he is 
 
            precluded from engaging in all types of retail business, or 
 
            from engaging in sales.  Claimant is capable of route sales 
 
            since he can drive for at least one to two hours without a 
 
            break.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 It is true claimant is incapable of returning to his 
 
            former position as a welder.  Both Dr. Roberts and Dr. Smith 
 
            are in agreement that claimant is unable to continue in that 
 
            position.  Defendant has not provided retraining to 
 
            claimant.  Nor has defendant found a job within the plant 
 
            for claimant.  Once claimant left the plant in July of 1987, 
 
            the channels of communication seemed to close.  There has 
 
            been very little effort on the part of either side to put 
 
            this claimant back to work.
 
            
 
                 Therefore, based upon the foregoing and based upon:  1) 
 
            the personal observation of claimant; 2) agency expertise 
 
            (Iowa Administrative Procedures Act 17A.141s); and 3) 
 
            claimant's testimony, the undersigned determines claimant 
 
            has a 50 percent permanent partial disability.
 
            
 
                                      order
 
            
 
                 IT IS ORDERED:
 
            
 
                 Defendant is to pay two hundred fifty (250) weeks of 
 
            permanent partial disability benefits at the stipulated rate 
 
            of four hundred forty-four and 24/l00 dollars ($444.24) per 
 
            week commencing on October 29, 1987.
 
            
 
                 Interest shall be paid pursuant to Iowa Code section 
 
            85.30.
 
            
 
                 Defendant shall receive credit for all benefits 
 
            previously paid and not credited.
 
            
 
                 Costs of the action shall be assessed to defendant 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendant shall file a claim activity report pursuant 
 
            to rule 343 IAC 3.1
 
            
 
            
 
            
 
                 Signed and filed this ____ day of May, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Rd
 
            Keokuk  IA  52632-1087
 
            
 
            Mr. William J. Cahill
 
            Attorney at Law
 
            200 Jefferson St
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            P O Box 1105
 
            Burlington  IA  52601
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1803
 
                           Filed May 21, 1991
 
                           MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DELBERT THOMPSON,             :
 
                                          :         File No. 844676
 
                 Claimant,                :
 
                                          :      A R B I T R A T I O N
 
            vs.                           :
 
                                          :         D E C I S I O N
 
            J I CASE CO.,                 :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            1803
 
            Claimant was awarded a 50 percent permanent partial 
 
            disability.  Claimant was functionally impaired in the 
 
            amount of 5 percent but he was severely restricted.  
 
            Claimant's restrictions included lifting 5 to 30 pounds.  He 
 
            was precluded from repetitively bending, stooping or 
 
            reaching.  He could drive for 2 hours without a break.
 
            Claimant was 35 years old with a high school diploma.  He 
 
            was unable to return to his position as a welder.  Defendant 
 
            provided no retraining to claimant.  Nor did defendant find 
 
            another job for claimant in the plant.  Very little effort 
 
            was made by claimant or defendant to return to work.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARSHA K. HURSEY,
 
         
 
              Claimant,
 
                                                   File No. 844849
 
         vs.
 
                                                     A P P E A L
 
         GARY AND PAT McCLuRE d/b/a
 
         COUNTRY COTTAGE,                          D E C I S I 0 N
 
         
 
              Employer,                               F I L E D
 
              Defendant.
 
                                                     NOV 22 1989
 
         
 
                                                 INDUSTRIAL SERVICES
 
                                  
 
                                  
 
                                  STATEMENT OF THE CASE
 
         
 
              Defendant appeals from an arbitration decision awarding 
 
         permanent partial disability benefits, healing period benefits, 
 
         and medical expenses.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing, joint exhibits 1 through 4 and defendant's 
 
         exhibit 5.  Both parties filed briefs on appeal.
 
         
 
                                      ISSUES
 
         
 
              The issue on appeal is whether the injury to claimant's left 
 
         thumb on December 24, 1986 arose out of and in the course of her 
 
         employment with defendant.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision filed July 28, 1988 adequately and 
 
         accurately reflects the pertinent evidence and it will not be 
 
         reiterated herein.
 
         
 
                                  APPLICABLE LAW
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received an injury on December 24, 1986 which 
 
         arose out of and in the course of her employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The legal test for determining the compensability of 
 
         injuries for social activities is discussed in Linderman v. 
 
         Cownie Furs, 234 Iowa 708, 13 N.W.2d 677, 680-81 (1944).
 
         
 
                        A good statement of the test to be applied is 
 
                   contained in a case where compensation was denied.  See 
 
                   Smith v. Steamless Rubber Company, 111 Conn. 365, 150 
 
                   A. 110, 111, 69 A.L.R. 856, where the court stated:  
 
                   "Where an employer merely permits an employee to 
 
                   perform a particular act, without direction or 
 
                   compulsion of any kind, the purpose and nature of the 
 
                   act becomes of great, often controlling significance in 
 
                   determining whether an injury suffered while performing 
 
                   it is compensable.  If the act is one for the benefit 
 
                   of the employer or for the mutual benefit of both, an 
 
                   injury arising out of it will usually be compensable; 
 
                   on the other hand, if the act being performed is for 
 
                   the exclusive benefit of the employee so that it is a 
 
                   personal privilege, or is one which the employer 
 
                   permits the employee to undertake for the benefit of 
 
                   some other person or for some cause apart from his own 
 
                   interests, an injury arising out of it will not be 
 
                   compensable."
 
         
 
              The test was further discussed in Farmers Elevator Co., 
 
         Kingsley v. Manning, 286 N.W.2d 174, 177 (Iowa 1979).
 
         
 
                   When faced on prior occasions with the argument that an 
 
              injured employee's presence at the scene of an accident was 
 
              not "required," this court has adopted a liberal 
 
              interpretation of the "course of employment" criterion.  We 
 
              have thus said that
 
         
 
                        [a]n injury occurs in the course of the employment 
 
                   when it is within the period of employment at a place 
 
                   where the employee reasonably may be in performing his 
 
                   duties, and while he is fulfilling those duties or 
 
                   engaged in doing something incidental thereto.  An 
 
                   injury in the course of employment embraces all 
 
                   injuries received while employed in furthering the 
 
                   employer's business and injuries received on the 
 
                   employer's premises, provided that the employee's 
 
                   presence must ordinarily be required at the place of 
 
                   the injury, or, if not so required, employee's 
 
                   departure from the usual place of employment must not 
 
                   amount to an abandonment of employment or be an act 
 
                   wholly foreign to his usual work.  An employee does not 
 
                   cease to be in the course of his employment merely 
 
                   because he is not actually engaged in doing some 
 
                   specifically prescribed task, if, in the course of his 
 
                   employment, he does some act which he deems necessary 
 
                   for the benefit or interest of his employer.
 
         
 
              Bushing v. Iowa Railway & Light Co. 208 Iowa 1010, 1018, 226 
 
              N.W. 719, 723 (1929) (citations omitted, emphasis added [by 
 
              the court]).
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
                 ....
 
         
 
              The test is whether the act is "in any manner dictated by 
 
              the course of employment to further the employer's 
 
              business."
 
         
 
         Id. at 177.
 
         
 
              In Briar Cliff College v. Campolo, 360 N.W.2d 91, 94 (Iowa 
 
         1984), the court stated:
 
         
 
              The commissioner also relied upon Larson's business-related 
 
              benefit test which states that recreational or social 
 
              activities are in the course of employment when "[t]he 
 
              employer derives substantial direct benefit from the 
 
              activity beyond the intangible value of improvement in 
 
              employee health and morale that is common to all kinds of 
 
              recreation and social life."  1A A. Larson, Workmen's 
 
              Compensation Section 22.00, at 5-72 (8th ed. 1982).  Stating 
 
              that it was the "degree of employer benefit which heavily 
 
              tips the scale in the claimant's favor" and "[a]nother 
 
              factor weighing in claimant's favor is the special nature of 
 
              a teacher's job," the deputy commissioner found claimant had 
 
              established that the death had occurred in the course of 
 
              decedent's employment.  The commissioner affirmed on appeal.
 
         
 
                   We conclude that the commissioner applied the correct 
 
              principles of law.  Whether decedent's acts benefited his 
 
              employer is a question of fact.
 
         
 
                                     ANALYSIS
 
         
 
              The starting point in this case is whether claimant has met 
 
         her burden of proof that her injury on December 24, 1986 arose 
 
         out of and in the course of her employment.  The test under Iowa 
 
         case law is whether claimant was engaged in some activity 
 
         necessary for the substantial direct benefit or interest of her 
 
         employer.  The claimant cut her left thumb while carrying cups at 
 
         a Christmas party held on the employer's premises.
 
         
 
              It has been discussed that a general boost to morale is not 
 
         enough to constitute benefit to an employer.  "Employer benefit, 
 
         as in the opportunity to work in a few remarks on salesmanship, 
 
         argues for coverage, but a general boost to morale is not 
 
         enough." 1A Larson, Workmen's Compensation Law Section 22.23(b) 
 
         at 5-126 (1985) citing to Wooten v. Roden, 260 Ala. 606, 71 So.2d 
 
         802 (1954).
 
         
 
              The only evidence of employer benefit in this case was an 
 
         attempt by claimant to show that the social activity, a Christmas 
 
         party, improved the morale of the employees.  There was testimony 
 
         that the morale of the employees was good and did not need 
 
         improvement.  It will be assumed that this party, like any 
 
         Christmas party, would at least maintain the otherwise good 
 
         morale of the employees.  But a general boost to morale is not 
 
         enough. The only other evidence of possible employer benefit 
 
         presented by the claimant was a fairly loosely organized gift 
 
         exchange.  Some employees participated in a grab bag.  A group of 
 
         employees, for the first time in the existence of the employers, 
 
         gave the employers a gift.  One employee individually gave the 
 
         employers a gift.  The employers gave some employees gifts at the 
 
         party but gave others gifts at other times.  When the party was 
 
         planned it was not known whether Patricia McClure, one of the 
 
         employers, would be at the party.  She returned from a business 
 
         trip to California the morning of the party.  The party was not 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         planned to present an opportunity for the employers to give 
 
         employees gifts nor for the employers to make speeches, awards, 
 
         etc.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              There was no indication that the employer gained any benefit 
 
         from the party other than a general boost of morale.  Claimant 
 
         has not proved that the party at which she was participating was 
 
         activity necessary for the benefit or interest of the employer. 
 
         Claimant has not proved that the activity was a substantial 
 
         direct benefit to the employer.  Thus, claimant has not proved 
 
         that she suffered an injury that arose out of and in the course 
 
         of her employment.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was an employee of defendant employer on 
 
         December 24, 1986.
 
         
 
              2.  On December 24, 1986 a Christmas party was held on 
 
         defendant-employer's premises.
 
         
 
              3.  On December 24, 1986 claimant injured her left thumb at 
 
         the Christmas party while carrying cups.
 
         
 
              4.  The defendant employer benefited from the party by 
 
         maintaining a good relationship with the employees.
 
         
 
              5.  The gift exchange at the party was not for the benefit 
 
         of the employer.
 
         
 
              6.  The party was of no benefit nor interest to the employer 
 
         other than maintaining good morale.
 
         
 
              7.  The party was not a substantial direct benefit to the 
 
         employer.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Claimant has not proved that she suffered an injury on 
 
         December 24, 1986 that arose out of and in the course of her 
 
         employment.
 
         
 
              WHEREFORE, the decision of the deputy is reversed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant take nothing from these proceedings.
 
         
 
              That defendant, Gary and Pat McClure, d/b/a Country Cottage, 
 
         pay the costs of these proceeding including the costs of 
 
         transcribing the arbitration hearing.
 
         
 
              Signed and filed this 22nd day of November, 1989.
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                                 DAVID E. LINQUIST
 
                                              INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Jeffrey L. Larson
 
         Attorney at Law
 
         11005 7th St.
 
         Harlan, Iowa  51537
 
         
 
         Mr. Bennett Cullison, Jr.
 
         Attorney at Law
 
         P.O. Box 68
 
         Harlan, Iowa  51537
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1109
 
                                            Filed November 22, 1989
 
                                            DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARSHA K. HURSEY,
 
         
 
              Claimant,
 
                                                 File No. 844849
 
         vs.
 
                                                    A P P E A L
 
         GARY AND PAT McCLURE d/b/a
 
         COUNTRY COTTAGE,                         D E C I S I 0 N
 
         
 
              Employer,
 
              Defendant.
 
              
 
         
 
         
 
         1109
 
         
 
              Claimant was injured while participating in Christmas party 
 
         activities on Christmas eve on the employers' premises.  The 
 
         employers permitted the party to be held.  The law to be applied 
 
         was whether the employer derived a substantial direct benefit or 
 
         interest from the activity.  Larson was cited for the proposition 
 
         that merely fostering good morale of employees did not constitute 
 
         sufficient benefit to the employers.  Claimant did not prove that 
 
         the activity was a substantial direct benefit or interest to the 
 
         employers other than merely improving the morale of the 
 
         employees. Thus, claimant did not prove an injury that arose out 
 
         of and in the course of her employment.  Deputy reversed on 
 
         appeal.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARSHA K. HURSEY,
 
                                              File No. 844849
 
              Claimant,
 
                                            A R B I T R A T I O N
 
         vs.
 
                                               D E C I S I O N
 
         GARY AND PAT McCLURE d/b/a
 
         COUNTRY COTTAGE,
 
         
 
              Employer,
 
              Defendant.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Marsha K. 
 
         Hursey, claimant, against Gary and Pat McClure d/b/a Country 
 
         Cottage, employer (hereinafter referred to as McCluresO), who are 
 
         uninsured, for workers' compensation benefits as a result of an 
 
         alleged injury on December 24, 1986.  The caption in this case 
 
         was amended at hearing to reflect the real parties in interest.  
 
         On April 27, 1988 a hearing was held on claimant's petition and 
 
         the matter was considered fully submitted at the close of this 
 
         hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing from claimant and the 
 
         following witnesses:  Nancy Swenson, Pat McClure, Kathy Kienast, 
 
         Daryl Nissen and Carol Doran.  The exhibits received into the 
 
         evidence at the hearing are listed in the prehearing report.  
 
         According to the prehearing report the parties have stipulated to 
 
         the following matters:
 
         
 
              1.  The injury to the left hand on December 24, 1986 was a 
 
         cause of temporary and permanent disability;
 
         
 
              2.  In the event defendant is liable for the December 24, 
 
         1986 injury, claimant is entitled to healing period benefits from 
 
         December 24, 1986 through February 19, 1987 and permanent 
 
         disability benefits consisting of nine weeks from February 20, 
 
         1987 for a 15 percent loss of use of the thumb;
 
         
 
              3.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits from this proceeding shall be $103.11 
 
         per week; and,
 
         
 
              4.  The medical bills submitted by claimant at the hearing, 
 
         exhibit 1, were fair and reasonable and causally connected to the 
 
         injury to claimant's hand on December 24, 1986.
 
         
 
        
 

 
         
 
         
 
         
 
         HURSEY V. GARY AND PAT McCLURE d/b/a COUNTRY COTTAGE
 
         PAGE   2
 
                                 
 
                                 
 
                                 ISSUE
 
              
 
              The only issue submitted by the parties for determination in 
 
         this proceeding is whether the injury claimant received to her 
 
         left hand on December 24, 1986 arose out of and in the course of 
 
         her employment at McClures'.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  For the sake of brevity, only the evidence most pertinent 
 
         to this decision is discussed.  Whether or not specifically 
 
         referred to in this summary, all of the evidence received at the 
 
         hearing was considered in arriving at this decision.  As will be 
 
         the case in any attempted summarization, conclusions about what 
 
         the evidence offered may show are inevitable.  Such.conclusions, 
 
         if any, in the following summary should be considered as 
 
         preliminary findings of fact.
 
         
 
              Gary and Pat McClure own and operate Country Cottage, a 
 
         small business engaged in the manufacture of wooden wear items.  
 
         The business had eight to nine full time employees at the time of 
 
         the alleged injury.  The McClures are currently engaged in 
 
         publishing craft and related materials.  Claimant testified that 
 
         she began working for McClures' in July, 1986 and performed 
 
         duties such as tracing patterns, sanding and drilling.
 
         
 
              Claimant testified that she injured her left hand while 
 
         assisting in serving refreshments during a Christmas party on 
 
         December 24, 1986 which was held upon the Country Cottage 
 
         business premises and which began immediately after McClures' 
 
         employees ended their work for the day at noon.  In attendance at 
 
         this party were most of the employees and some of their spouses 
 
         and children.  Also in attendance were the McClures and some of 
 
         their friends.  Claimant said that while stacking soup cups in a 
 
         kitchen area in the shop, the cups fell and broke severely 
 
         cutting her hand.  According to the medical records submitted 
 
         into the evidence, claimant suffered cuts to the tendons 
 
         requiring surgical repair and several weeks of healing.  Claimant 
 
         now suffers from a 15 percent loss of use to the thumb as a 
 
         result of the incident.
 
         
 
              All of the witnesses at hearing agree that McClures did not 
 
         organize the Christmas party.  Pat McClure testified that she 
 
         announced in the weeks prior to Christmas that the company party 
 
         would be held after Christmas, not before.  However, after a 
 
         request by one of the employees, Nancy Swenson, to conduct a 
 
         party on the premises after work on Christmas Eve she consented. 
 
          The party was apparently organized according to the testimony by 
 
         an employee group effort.  Kathy Kienast, placed a list on the 
 
         break room refrigerator seeking persons to sign up for the 
 
         donation of various foods and beverage items for the party.  
 
         Although there was testimony that Kienast was at times placed in 
 
         charge in the absence of McClures, there was no testimony that 
 
         she at any time was directed to place a list on the refrigerator 
 
         by McClures or was acting as a supervisor in the posting of the 
 
         list.  Also, plans for the party were discussed during coffee 
 
         breaks in the days before the party.  At all times, McClures were 
 
         aware of the plans due to the fact that they regularly work side 
 
         by side with their employees.  None of the employees were 
 

 
         
 
         
 
         
 
         HURSEY V. GARY AND PAT McCLURE d/b/a COUNTRY COTTAGE
 
         PAGE   3
 
         
 
         
 
         required to attend.  None of the employees were paid for time 
 
         expended in attending the party.  Gifts were exchanged at this 
 
         party including a gift by employees to Pat McClure.  Although 
 
         McClures furnished no food at the party, Mr. McClure did furnish 
 
         some beer after the party began.
 
         
 
              Claimant and several of the witnesses testified that the 
 
         party was of some benefit to both the employees of Country 
 
         Cottage and to the McClures.  They indicated that such parties 
 
         improve moral and general feeling of goodwill among management 
 
         and employees.  In her testimony, Pat McClure denied that she 
 
         derived any benefit from the party although she admitted that 
 
         shed did not wish to be considered a "jerk" and it would not be 
 
         nice to refuse the employees the opportunity to have a party on 
 
         the premises.
 
         
 
              Claimant's appearance and demeanor at the hearing indicated 
 
         that she was testifying truthfully.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              I.  Claimant has the burden of proving by a preponderance of 
 
         the evidence that claimant received an injury which arose out of 
 
         and in the course of employment.  The words "out of" refer to the 
 
         cause or source of the injury.  The words "in the course of" 
 
         refer to the time and place and circumstances of the injury.  
 
         See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 
 
         1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).  An employer takes an employee subject to any 
 
         active of dormant health impairments, and a work connected injury 
 
         which more than slightly aggravates the condition is considered 
 
         to be a personal injury.  Ziegler v. United States Gypsum Co., 
 
         252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited herein.
 
         
 
              The legal test for determining the compensability of 
 
         injuries for social activities is set forth in Linderman v. 
 
         Cownie Furs, 234 Iowa 708, 13 N.W.2d 677 (1944).
 
         
 
                "Where an employer merely permits an employee to 
 
              perform a particular act, without direction or 
 
              compulsion of any kind, the purpose and nature of the 
 
              act becomes of great, often controlling significance in 
 
              determining whether an injury suffered while performing 
 
              it is compensable.  If the act is one for the benefit 
 
              of the employer or for the mutual benefit of both, an 
 
              injury arising out of it will usually be compensable; 
 
              on the other hand, if the act being performed is for 
 
              the exclusive benefit of the employee so that it is a 
 
              personal privilege, or is one which the employer 
 
              permits the employee to undertake for the benefit of 
 
              some other person or some cause apart from his own 
 
              interest, an injury arising out of it will not be 
 
              compensable.O
 
         
 
              In the case sub judice, although it is clear that McClures 
 
         did not initially organize or plan the party, they clearly took 
 
         an active part in the festivities and furnished some of the 
 
         beverages.  Pat McClure's testimony that she derived no benefit 
 
         from the party is not credible.  She herself admitted that any 
 

 
         
 
         
 
         
 
         HURSEY V. GARY AND PAT McCLURE d/b/a COUNTRY COTTAGE
 
         PAGE   4
 
         
 
         
 
         denial of the party would cause hard feelings between herself and 
 
         her employees.  Obviously she allowed and participated in the 
 
         party to maintain the goodwill of her employees.  Therefore, both 
 
         employees and employer alike derived a benefit from the activity 
 
         and claimantOs injury while participating in this activity arose 
 
         out of and in the course of her employment at Country Cottage.  
 
         This case is not comparable to Inghram v. Winegard Company, II 
 
         Iowa Industrial Commissioner Report 209 (Appeal Decision 1981) 
 
         cited in defendant's brief.  In Inghram, the claimant was not on 
 
         the premises and was not actively engaged in the party activities 
 
         at the time of the injury.  Inghram was on her way home when the 
 
         injury occurred.
 
         
 
              The stipulations of the parties as to the extent of 
 
         disability benefits in the event of a finding of liability will 
 
         be honored and ordered herein.
 
         
 
              Pursuant to Iowa Code section 85.27, claimant is entitled to 
 
         reasonable medical expenses for treatment of a work injury.  
 
         However, claimant is entitled to an order of reimbursement only 
 
         for those expenses which she has previously paid.  Krohn v. 
 
         State, 420 N.W.2d 463 (Iowa 1988).
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              2.  Claimant was in the employ of Country Cottage at all 
 
         times material herein.
 
         
 
              3.  On December 24, 1986, claimant suffered an injury to the 
 
         left thumb which arose out of and in the course of her employment 
 
         with Country Cottage.  While participating in a Christmas party 
 
         on the McClures' premises, claimant cut her left hand severely 
 
         cutting the tendons and requiring extensive medical treatment.  
 
         Although the party was organized by employees, the party was 
 
         allowed by McClures who benefited from the party by maintaining a 
 
         good relationship with their employees.
 
         
 
              4.  The work injury of December 24, 1986 was a cause of the 
 
         medical expenses listed in exhibit 1.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         entitlement to permanent partial disability benefits and healing 
 
         period benefits along with medical benefits as ordered below.
 
         
 
                                      ORDER
 
         
 
              1.  Defendants, Gary and Pat McClure d/b/a Country Cottage, 
 
         shall pay to claimant nine (9) weeks of permanent partial 
 
         disability benefits at the rate of one hundred three and 11/100 
 
         dollars ($103.11) per week from February 20, 1987.
 
         
 
              2.  Defendants, Gary and Pat McClure, shall pay to claimant 
 
         healing period benefits from December 24, 1986 through February 
 
         19, 1987 at the rate of one hundred three and 11/100 dollars 
 
         ($103.11) per week.
 

 
         
 
         
 
         
 
         HURSEY V. GARY AND PAT McCLURE d/b/a COUNTRY COTTAGE
 
         PAGE   5
 
         
 
         
 
         
 
              3.  Defendants, Gary and Pat McClure, shall pay the medical 
 
         expenses listed in exhibit 1 totaling one thousand two hundred 
 
         twenty-six and 78/100 dollars ($1,226.78) plus mileage expense at 
 
         the rate of twenty-one cents ($.21) per mile for a total of two 
 
         hundred fifty-five (255) miles.
 
         
 
              4.  Defendants, Gary and Pat McClure, shall either pay the 
 
         medical provider listed in exhibit 1 if the bill is unpaid or pay 
 
         claimant directly if the bill has been paid by her.
 
         
 
              5.  Defendants, Gary and Pat McClure, shall pay accrued 
 
         weekly benefits in a lump sum.
 
         
 
              6.  Defendants, Gary and Pat McClure, shall pay interest on 
 
         weekly benefits awarded herein as set forth in Iowa Code section 
 
         85.30.
 
         
 
              7.  Defendants, Gary and Pat McClure, shall pay the costs of 
 
         this action pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
              8.  Defendants, Gary and Pat McClure, shall file activity 
 
         reports on the payment of this award as requested by this agency 
 
         pursuant to Division of Industrial Services Rule 343-3.1.
 
         
 
         
 
         
 
         
 
         
 
              Signed and filed this 28th day of July, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                           LARRY P. WALSHIRE
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Jeffrey L. Larson
 
         Attorney at Law
 
         1005 Seventh St.
 
         Box 726
 
         Harlan, Iowa 51537
 
         
 
         Mr. Bennett Cullison, Jr.
 
         Attorney at Law
 
         P. 0. Box 68
 
         Harlan, Iowa 51537
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  1109
 
                                                  Filed July 28, 1988
 
                                                  LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARSHA K. HURSEY,
 
                                                  File No. 844849
 
              Claimant,
 
                                               A R B I T R A T I O N
 
         vs.
 
                                                  D E C I S I O N
 
         GARY AND PAT McCLURE d/b/a
 
         COUNTRY COTTAGE,
 
         
 
              Employer,
 
              Defendant.
 
         
 
         
 
         
 
         1109
 
         
 
              Claimant was injured while participating in Christmas party 
 
         activities on Christmas Eve in 1986.  Although the party was 
 
         organized by employees, employer permitted the party to be held 
 
         on business premises and participated in its activities.  It was 
 
         held that employer derived a benefit from the party in 
 
         maintaining goodwill with its employees.  Consequently, it was 
 
         held that the injury arose out of and in the course of 
 
         employment.
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BARBARA C. O'BRINK,
 
         
 
              Claimant,                               File No. 844851
 
         
 
         vs.                                       A R B I T R A T I O N
 
         
 
         UNIVERSITY OF NORTHERN IOWA,                 D E C I S I O N
 
         
 
              Employer,
 
                                                         F I L E D
 
         and
 
                                                        NOV 13 1989
 
         STATE OF IOWA,
 
                                                    INDUSTRIAL SERVICES
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Barbara C. 
 
         O'Brink against the University of Northern Iowa, her former 
 
         employer, and the state of Iowa.  Claimant seeks benefits as the 
 
         result of an alleged injury of May 21, 1986.  She claims that she 
 
         is totally disabled and asserts the odd-lot doctrine.
 
         
 
              The case was heard and fully submitted on February 15, 1989 
 
         at Manchester, Iowa.  The record in the proceeding consists of 
 
         testimony from Barbara C. O'Brink, Minnie Eel and Delores Boger. 
 
         The record also contains jointly offered exhibits 1 through 50 
 
         and defendants' exhibit A.
 
         
 
                                   ISSUES
 
         
 
              The issues presented by the parties at the time of hearing 
 
         are whether claimant sustained an injury which arose out of and 
 
         in the course of her employment on or about May 21, 1986; 
 
         determination of claimant's entitlement, if any, to compensation 
 
         for temporary total disability, healing period, permanent partial 
 
         disability and/or permanent total disability; determination of 
 
         claimant's entitlement, if any, to payment of medical expenses 
 
         under the provisions of Iowa Code section 85.27; determination of 
 
         the appropriate rate of compensation in the event of an award; 
 
         and, determination of the employer's claim for credits under Iowa 
 
         Code section 85.38(2).  Additional issues identified are whether 
 
         claimant's hip and leg injury are a result of the fall at work on 
 
         May 21, 1986 and whether claimant is an odd-lot employee.
 
         
 
                         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 show are inevitable with any 
 
         summarization.  The conclusions in the following summary should 
 
         be considered to be preliminary findings of fact.
 
         
 
              Barbara C. O'Brink is a 58-year-old lady who lives at 
 
         Washburn, Iowa.  She has six children, all of whom are now 
 
         adults, and has been a widow since 1980.
 
         
 
              O'Brink attended country school through the eighth grade, 
 
         but then dropped out during the second week of the ninth grade.  
 
         She has no further formal education of any type.  Claimant's 
 
         primary employment has been as a cook or waitress in a 
 
         restaurant, but she has also held other jobs as a bottle capper 
 
         and as a nurse's aide. She stated that she has never performed 
 
         office work of any type. Claimant testified that she was never 
 
         fired from any of the several jobs which she has held and that 
 
         she had no problem performing the jobs until the incident which 
 
         is the subject of this case.  Claimant stated that prior to May 
 
         of 1986 she did all of her own housekeeping, mowed and raked her 
 
         lawn, and had painted the inside and outside of her home, all 
 
         without problems.
 
         
 
              Claimant related that her medical history included an ulcer, 
 
         varicose veins, a hysterectomy, and bronchitis.  Claimant related 
 
         that records show she had a low back strain in 1973, but she did 
 
         not recall the incident, and surmised that it must not have 
 
         lasted.very long.  She recalled having left hip pain in 1981, but 
 
         was unsure if she was hospitalized for it.  Claimant stated that 
 
         her family physician has been James H. Jeffries, M.D., since 
 
         1961. She denied missing any work for hip or back pain prior to 
 
         the events which are the subject of this case.
 
         
 
              Claimant commenced her employment with the University of 
 
         Northern Iowa on February 17, 1986.  She stated that she was 
 
         administered a physical examination which she passed and that her 
 
         health was then excellent.  Claimant related that she has 
 
         diabetes, but that she controls it.  Claimant was hired to work 
 
         as a cook in a dormitory dining hall.  She stated that she 
 
         prepared large amounts of food such as 60-90 pounds of hamburger 
 
         at one time.  She stated that the cooking was done in vats and 
 
         that the food was stirred with a utensil which was like an oar.  
 
         Claimant stated that she had to perform reaching and stooping, 
 
         including lifting cases of food products from a cart as she 
 
         prepared to cook the articles.  Claimant stated that she also had 
 
         to clean ovens and fryers, activities which required stooping and 
 
         bending. Claimant stated that she had always been able to perform 
 
         her job. She stated that sometimes she was tired at the end of 
 
         her work day, but that she would still do her wash, visit friends 
 
         and engage in other activities following work.
 
         
 
              Claimant stated that in mid-May when the school term ended, 
 
         there was no need for cooks in the dining hall and she elected to 
 
         perform housekeeping duties rather than be laid off.  Claimant 
 
                                                
 
                                                         
 
         stated that the work involved deep cleaning in the dormitories of 
 
         ceilings, windows and floors.  Claimant stated that at times she 
 
         worked alone and at times worked with another employee.
 
         
 
              Claimant stated that she was being paid $5.41 per hour on 
 
         May 21, 1986, but that she received a raise in July or August to 
 
         $5.62 per hour.
 
         
 
              Claimant stated that on May 21, 1986 she was cleaning a 
 
         lounge with fellow-employee Minnie Eel.  Claimant stated that she 
 
         was coming down a 5-foot stepladder after cleaning a light 
 
         fixture.  Claimant stated that when coming down, she missed the 
 
         bottom step of the ladder, struggled to keep from falling, but 
 
         fell on the floor, onto her buttocks and felt a pain in her back. 
 
         Claimant stated that she fell hard and that she was hurt and 
 
         embarrassed.  Claimant stated that Minnie Eel assisted her in 
 
         getting up from the floor, that the incident was reported to her 
 
         supervisor, and that on the following day a higher supervisor 
 
         took her statement involving the incident.  Claimant stated that 
 
         she had been tired and achy since beginning the housekeeping 
 
         work, but had performed all normal activities prior to May 21, 
 
         1986. Claimant stated that commencing on May 21, 1986, she felt a 
 
         different pain which was more dominant.  Claimant stated that she 
 
         talked about the fall with her sister, but did not seek medical 
 
         care and continued to work.  Claimant stated that for the rest of 
 
         the summer Mrs. Eel performed the bulk of the work which required 
 
         use of a ladder or extensive bending.  Claimant stated that over 
 
         the summer she gradually worsened and that the pain and achiness 
 
         increased.  She stated that it was mainly in her lower back and 
 
         groin area and also went into her left hip and leg.  She stated 
 
         that during the summer she was beat by the end of the day and 
 
         began taking hot baths in the evening after work.  Claimant 
 
         stated that she had been seeing her family doctor for a urinary 
 
         problem and while doing so had mentioned her backache.  Dr. 
 
         Jeffries' office notes of July 23, 1986 contain a reference to 
 
         claimant having low back pain (exhibit 1-T).
 
         
 
              Claimant stated that on August 22, 1986 she resumed duties 
 
         of cooking.  She stated that the lifting and bending were more 
 
         difficult than they had been previously.  She stated that she had 
 
         pain in her left hip and had trouble moving the leg.  She stated 
 
         that she had to use her hand to lift her leg when getting into a 
 
         car.  Claimant explained that she thought the cleaning work was 
 
         aggravating her and that she had expected to get better when she 
 
         resumed cooking, but that she did not improve.  Claimant stated 
 
         that on September 26, 1986 she consulted Dr. Jeffries for her 
 
         back.  She stated that she told him her back and legs hurt and 
 
         that she could hardly get around.  She stated that she probably 
 
         told the doctor that it had been bothering her for two weeks 
 
         because it had really gotten bad during the preceding two weeks, 
 
         although she also told him that it had been hurting all summer. 
 
         She stated that she did not recall the incident of falling when 
 
         she first saw Dr. Jeffries, but that while she was hospitalized a 
 
         few days later her sister reminded her of falling and she asked 
 
         Dr. Jeffries if the fall could have caused her problems.  Dr. 
 
                                                
 
                                                         
 
         Jeffries immediately took her off work.
 
         
 
              On September 29, 1986, three days after initially seeing Dr. 
 
         Jeffries for her back, claimant was hospitalized at Allen 
 
         Memorial Hospital.  She was treated with bed rest and physical 
 
         therapy and made a slow, but incomplete recovery.  She was 
 
         discharged from the hospital on October 10, 1986 with 
 
         restrictions (exhibit 24-EEEE). Claimant stated that she felt 
 
         better after the hospitalization, but that when she increased her 
 
         activity level, her symptoms increased.  The discharge summary 
 
         demonstrates that claimant discussed the May 21, 1986 fall 
 
         incident while she was hospitalized.  Claimant stated that when 
 
         she was released from the hospital, she was not released to 
 
         return to work.
 
         
 
              Claimant was referred to orthopaedic surgeon Dale Phelps, 
 
         M.D., who first saw her on October 22, 1986.  Claimant stated 
 
         that she was given a shot in the back that relieved her symptoms 
 
         for a time, but that they returned.  Claimant was again admitted 
 
         to Allen Memorial Hospital on December 2, 1986.  Diagnostic tests 
 
         demonstrated that she had a lumbar disc problem at the L4-5 level 
 
         of her spine.  On December 4, 1986, Dr. Phelps performed a 
 
         bilateral laminectomy.  Claimant was eventually discharged from 
 
         the hospital on December 15, 1986 (exhibit 26- TTTTT).
 
         
 
                         
 
                                                         
 
              Claimant testified that following the surgery, she was sent 
 
         home and performed the exercises which her doctor had 
 
         recommended. She stated that her back did improve, but that her 
 
         hip was giving more trouble.  Claimant continued to treat with 
 
         Dr. Phelps and Dr. Jeffries.  During the summer of 1987, they 
 
         discussed performing a total hip replacement as a means of 
 
         relieving her left hip pain. Claimant was admitted again to Allen 
 
         Memorial Hospital on October 5, 1987.  She underwent a total left 
 
         hip replacement and was finally discharged on October 13, 1987 
 
         (exhibit 30B, KK and LL). (It should be noted that the operative 
 
         report refers at one portion to the right hip, but that the 
 
         surgery was in fact performed upon claimant's left hip as is 
 
         shown in the text of the report.)  Claimant stated that after 
 
         recovering from the surgery, a lot of the pain in her left hip 
 
         was relieved, but that she still has some achiness in it.
 
         
 
              Claimant testified that in general her physical condition 
 
         has never returned to being as good as it was immediately before 
 
         she fell on May 21, 1986.  She stated that her doctors have not 
 
         released her to return to work, although at one point, it was 
 
         indicated that she might be able to return to work.  Claimant 
 
         stated that she had planned to continue working until age 65 in 
 
         order to obtain maximum Social Security benefits.  She stated 
 
         that the job at UNI was the best paying job she had ever held.
 
         
 
              Claimant testified that she has applied for and received 
 
         Social Security disability benefits commencing in October of 1987 
 
         and that she has applied for and received a handicap sticker for 
 
         her car.  Claimant related that her understanding of the 
 
         restrictions imposed by Dr. Jeffries is that she not vacuum, make 
 
         her bed, or drive too far in a car.  She stated that she is not 
 
         allowed to lift and will not carry a full grocery bag.  Claimant 
 
         stated that her ability to stand is limited to 15 minutes to 
 
         one-half hour.  She stated that her legs get shaky and her back 
 
         hurts so that she needs to sit down to rest.  Claimant stated 
 
         that extended sitting is also uncomfortable and that she is 
 
         limited to approximately one-half hour of continuous sitting.  
 
         Claimant stated that she has no formal schooling background and 
 
         has no funds with which to go to school.  She stated that in view 
 
         of her current age, she would be retired by the time she finished 
 
         any extensive educational program.  Claimant stated that she 
 
         would be unable to stand long enough to be a cashier or work at a 
 
         McDonalds restaurant.  Claimant stated that she has not applied 
 
         for any work since October of 1986 because she has not been 
 
         released by her doctors.  She does not know of any job that she 
 
         is physically capable of performing that she knows how to do.  
 
         Claimant related that she does some, but not all, of her 
 
         housework.  She stated that she is unable to do any yard work.  
 
         She stated that she has trouble bending and stooping.  Claimant 
 
         related that prior to the time she fell, she could bend over far 
 
         enough to place her palms on the floor.  Claimant denied 
 
         experiencing any trauma subsequent to May 21, 1986.
 
         
 
              Claimant related that during the summer of 1988, she 
 
         accompanied her sister on a vacation to Minnesota, as she had 
 
                                                
 
                                                         
 
         been accustomed to doing prior to the time that she fell.  
 
         Claimant stated that it was necessary to stop so that she could 
 
         get out of the vehicle and ambulate.  She stated that it was 
 
         necessary for her to use a chair for support in order to walk to 
 
         the riverbank in order to fish.  Claimant stated that prior to 
 
         falling, she had engaged in fishing and bowling as her primary 
 
         hobbies, but is now unable to engage in those activities.
 
         
 
              Minnie Eel testified that claimant fell from a ladder on May 
 
         21, 1986 and landed on her bottom.  Eel confirmed that claimant's 
 
         facial expression indicated pain, that she moved slowly following 
 
         the incident and that the incident was reported to their 
 
         supervisor.  Eel stated that following the fall, claimant was 
 
         unable to work on a ladder or stoop as she was in pain.  Eel 
 
         stated that claimant also worked slower following the fall.
 
         
 
              Delores Boger, claimant's sister, stated that she has been 
 
         in close contact with claimant for several years and that prior 
 
         to May 21, 1986, she was unaware of claimant having any 
 
         complaints about her work or being unable to work.   Boger stated 
 
         that she talked with claimant on the evening of May 21, 1986 and 
 
         that claimant related falling and being in discomfort.  Boger 
 
         stated that following May 21, 1986, she could observe that 
 
         claimant seemed to be strained and to be having discomfort.  
 
         Boger stated that the symptoms had begun on approximately May 21, 
 
         1986 and had not existed previously.  Boger denied having any 
 
         knowledge of claimant sustaining any trauma subsequent to May 21, 
 
         1986.  Boger stated that during the summer after the fall, she 
 
         had encouraged claimant to go to the doctor for her complaints 
 
         and that she finally did.  Boger confirmed claimant's testimony 
 
         regarding her preinjury activities which she no longer performs 
 
         and the events concerning the Minnesota trip.
 
         
 
              James H. Jeffries, M.D., claimant's family physician for 
 
         over 25 years, related that claimant had sustained a back strain 
 
         in November of 1973 from which she recovered completely, an 
 
         automobile accident in April of 1975 which he did not treat and 
 
         that she had experienced left flank and hip pain in December of 
 
         1981 from which she recovered completely.  He was not aware of 
 
         claimant having any other problems affecting her back or hip 
 
         prior to 1986 (exhibit 38, pages 8-10).
 
         
 
              Dr. Jeffries stated that when he saw claimant on September 
 
         26, 1986, he did not take an extensive history from her, but did 
 
         examine her for low back and left hip pain.  He stated that it 
 
         was during her subsequent hospitalization that a more detailed 
 
         history showed she had fallen from a ladder at work, as he 
 
         reported on the discharge summary (exhibit 38, pages 7, 14, and 
 
         32-35).
 
         
 
              Dr. Jeffries stated that claimant's complaints were 
 
         consistent with a fall from a ladder, that the earlier hip and 
 
         back incidents for which he had treated claimant were not related 
 
         to her current problems, that it was possible that both her back 
 
         and hip problems resulted from the ladder incident, and that in 
 
                                                
 
                                                         
 
         his opinion claimant's back problem was certainly a result of the 
 
         fall and that with regard to the hip, the fall was a terminal 
 
         contributing event which required the surgery that was ultimately 
 
         performed (exhibit 38, pages 15, 21, 22 and 37).
 
         
 
              Dr. Jeffries stated that he has restricted claimant from 
 
         lifting, from household activities such as vacuuming, mopping, or 
 
         bending over to clean floors and that he has advised her to avoid 
 
         traveling for any distance in the car.  Dr. Jeffries related that 
 
         claimant could not perform jobs which required extended standing 
 
         or extended sitting due to her back and hip problems and that her 
 
         condition is unlikely to get any better (exhibit 38, pages 
 
         24-26).
 
         
 
              Dale Phelps, M.D., was claimant's treating orthopaedic 
 
         surgeon.  When deposed, Dr. Phelps expressed the opinion that 
 
         claimant's complaints and the results of his examination were 
 
         consistent with a fall from a ladder.  Dr. Phelps expressed the 
 
         opinion that claimant's symptoms which he observed were connected 
 
         with the injuries she sustained in the fall, that the pain in 
 
         claimant's hip was caused by the fall, and that the pain in 
 
         claimant's hip had been coming from the hip, rather than from her 
 
         back (exhibit 37, pages 6, 8, 13-15, and 20-22).  Dr. Phelps 
 
         explained that degenerative arthritis is not an unusual condition 
 
         in a person of claimant's age and that trauma can aggravate a 
 
         preexisting degenerative condition.  He stated that claimant's 
 
         hip did not initially show a great deal of degeneration, but then 
 
         developed rapid degeneration during the time that he treated her. 
 
         Dr. Phelps stated that the arthritis in her hip was posttraumatic 
 
         rather than idiopathic (exhibit 37, pages 14, 27, 41 and 42).
 
         
 
              Dr. Phelps stated that claimant reached maximum healing six 
 
         months following her second surgery (exhibit 37, pages 30 and 
 
         31). He stated that she has a permanent 15 percent impairment of 
 
         the body as a whole due to the condition of her back and a 
 
         permanent 15 percent permanent impairment of the body as a whole 
 
         due to the condition of her hip (exhibit 37, page 32-35).  Dr. 
 
         Phelps stated that claimant has permanent restrictions against 
 
         squatting, climbing, heavy lifting, repeated bending or stooping, 
 
         jumping or running.  He felt that her condition was permanent 
 
         (exhibit 37, page 31).
 
         
 
              Claimant was evaluated by Ernest M. Found, M.D., a spinal 
 
         surgeon at the University of Iowa Hospitals and Clinics.  Dr. 
 
         Found expressed the opinion that claimant's back condition was 
 
         caused by the fall that she experienced at her employment and 
 
         that she had a residual 10 percent permanent impairment of the 
 
         body as a whole due to the condition of her back.  Dr. Found also 
 
         stated, however, that claimant's hip condition was not caused by 
 
         the original injury.  Dr. Found felt that claimant's recuperation 
 
         and healing had ended, that she was deconditioned and needed to 
 
         be placed in a reconditioning program (exhibit 49 A and B).  Dr. 
 
         Found indicated that with proper conditioning and exercise, 
 
         claimant could get back to doing the type of activities which she 
 
         enjoys.
 
                                                
 
                                                         
 
         
 
              While at the University of Iowa Hospitals and Clinics for 
 
         evaluation, claimant was seen by Ted Wernimont, MSW, the clinical 
 
         coordinator at the treatment center.  Wernimont stated, "It is my 
 
         impression that Ms. O'Brink would have a very difficult time 
 
         returning to full-time employment as a cook or in any other 
 
         position which she has had significant experience."  While being 
 
         evaluated, claimant was found to be well motivated.
 
         
 
                      APPLICABLE LAW AND ANALYSIS
 
         
 
              Defendants deny that claimant sustained any injury which 
 
         arose out of and in the course of her employment on or about May 
 
         21, 1986.
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received an injury on May 21, 1986 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 words "out of" refer to the cause or source of the 
 
         injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 
 
         246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The testimony from claimant and Minnie Eel was to the effect 
 
         that claimant had fallen from a ladder at work and landed on her 
 
         buttocks.  Delores Boger confirmed that claimant had reported the 
 
 
 
                      
 
                                                         
 
         incident to her on the day that it happened.  The employer's own 
 
         records confirm that claimant reported the injury at the time 
 
         when it occurred (exhibits 44 and 47A).  Claimant's testimony 
 
         regarding the incident that occurred on May 21, 1986 is 
 
         corroborated by the evidence from other witnesses and by written 
 
         evidence from the employer.  The appearance and demeanor of 
 
         claimant and the other two witnesses was observed and considered 
 
         in light of the other evidence in the case.. All three who 
 
         testified are found to be credible witnesses.  It is therefore 
 
         determined that claimant did fall from a ladder and land on her 
 
         buttocks as she described on May 21, 1986.
 
         
 
              Claimant testified that she did not recall the incident and 
 
         did not relate it to Dr. Jeffries when she initially saw him on 
 
         September 26, 1986, but that after being reminded by her sister, 
 
         she did report it to him a few days later when she was 
 
         hospitalized.  Claimant also related that she had mentioned back 
 
         pain to Dr. Jeffries when she had seen him during the summer of 
 
         1986 for other medical problems.  Claimant's testimony regarding 
 
         making those complaints to Dr. Jeffries is substantiated by the 
 
         office note of July 23, 1986 found at exhibit 1-T.  Claimant's 
 
         explanation for the lack of reporting the fall when she initially 
 
         saw Dr. Jeffries on September 26, 1986 is accepted as being 
 
         credible and correct.  Dr. Jeffries confirmed that he did not 
 
         take an extensive history at the time of the September 26, 1986 
 
         office call.  Claimant's testimony of experiencing continuing 
 
         complaints following May 21, 1986 is corroborated by Eel, Boger 
 
         and the July 23 office note.  In short, claimant's testimony 
 
         regarding the sequence of events beginning on May 21, 1986 is 
 
         well corroborated by testimony from other witnesses and the other 
 
         documents in the record.  There is, in fact, no directly 
 
         conflicting evidence from any source in the record.  Claimant's 
 
         explanation of her reasons for delaying treatment and for failing 
 
         to relate the fall to Dr. Jeffries when she initially consulted 
 
         him regarding her back on September 26, 1986 are quite plausible 
 
         and are accepted as being credible and correct.  Based upon 
 
         claimant's formal education and apparent lack of medical 
 
         expertise, it is not remarkable that she might not have 
 
         understood the possible relationship between the fall and her 
 
         back and hip pain.  In fact, in her testimony, she stated that 
 
         she had felt it was possibly related to the change in activities 
 
         from working as a cook to working as a housekeeper.  It is noted 
 
         that she had been on the housekeeping job only a few days at the 
 
         time of the fall and had been sore from performing housekeeping 
 
         duties.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of May 21, 1986 is causally related 
 
         to the disability on which she now bases her claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
         insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
                                                
 
                                                         
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              Drs. Jeffries, Phelps and Found have all related claimant's 
 
         back condition, surgery and disability to the May 21, 1986 fall. 
 
         There is.not a scintilla of evidence in the record to the 
 
         contrary.  Their collective assessment of the case in that regard 
 
         is therefore accepted as being correct.  Dr. Found assigned a 10 
 
         percent permanent impairment rating due to the back while Dr. 
 
         Phelps assigned a 15 percent rating.  The difference in their 
 
         ratings is not irreconcilable.  The point of irreconcilable 
 
         difference deals with whether or not claimant's hip problems 
 
         resulted from the fall.  Drs. Jeffries and Phelps relate them to 
 
         the fall, while Dr. Found does not.
 
         
 
              The law is clear that aggravation of a preexisting condition 
 
         is one form of compensable injury.  An employer takes an employee 
 
         subject to any active or dormant health impairments, and a work 
 
         connected injury which more than slightly aggravates the 
 
         condition is considered to be a personal injury.  Ziegler v. 
 
         United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 
 
         (1960), and cases cited.
 
         
 
              The fact that the normal aging process may produce the 
 
         ailment from which a claimant suffers as an actual result from 
 
         the employment experience does not bar a finding of disability. 
 
         McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 191 (Iowa 1980).
 
         
 
              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).
 
         
 
              In view of claimant's long-term history of being greatly 
 
         overweight, it is quite likely that her hips had been subjected 
 
         to substantial trauma by her day-to-day activities.  It is quite 
 
         likely that a degenerative process was already underway long 
 
         prior to May 21, 1986.  Claimant had, however, been capable of 
 
         working without apparent problem prior to May 21, 1986.  When she 
 
                                                
 
                                                         
 
         was initially seen by Dr. Phelps, her hips showed little in the 
 
         way of degenerative change, but a rapidly degenerating condition 
 
         was subsequently found.  Dr. Phelps related the rapid 
 
         degeneration to the fall.  This is precisely the type of 
 
         aggravation, lighting up or acceleration of a preexisting 
 
         condition which the law holds to be compensable.  Dr. Found 
 
         apparently felt that there had been insufficient time between the 
 
         fall and the hip replacement surgery for substantial degeneration 
 
         to have occurred.  His opinion in that regard is in conflict with 
 
         Dr. Phelps' interpretation of the hip x-rays which were taken.  
 
         The assessment of the case made by Drs. Jeffries and Phelps with 
 
         regard to claimant's hip is accepted as being correct.  They are 
 
         the treating physicians and are more familiar with claimant's 
 
         total course than Dr. Found.  Their assessment which finds a 
 
         causal connection is supported by the radiographic evidence of 
 
         rapid degeneration following the fall. Defendants are therefore 
 
         liable for the disability affecting not only claimant's back but 
 
         also her hip.
 
         
 
              The rate of compensation is based upon claimant's normal 
 
         weekly earnings as defined in Iowa Code section 85.36.  The 
 
         record shows that she was working a normal 40-hour week and was 
 
         paid $5.41 per hour at the time she fell.  She had a raise and 
 
         was paid $5.62 per hour at the time she ceased employment on 
 
         September 25, 1986.  Claimant seeks application of the cumulative 
 
         trauma rule in order to have the rate be based upon the higher 
 
         hourly wage in accordance with McKeever Custom Cabinets v. Smith, 
 
         379 N.W.2d 368 (Iowa 1985).  In this case, all the physicians 
 
         have related claimant's medical problems to the May 21, 1986 
 
         fall.  None of them have stated that continuing to work in any 
 
         manner subjected the claimant to cumulative trauma which worsened 
 
         the result which would have otherwise eventually occurred from 
 
         the fall itself.  In view of such, the cumulative trauma rule is 
 
         not available for determining the rate of compensation.  The rate 
 
         is therefore to be based upon claimant's earnings of $5.41 per 
 
         hour.  This provides gross weekly earnings of $216.40.  The 
 
         prehearing report stipulates that claimant is single and is 
 
         entitled to one exemption.  Based upon the July 1, 1985 benefit 
 
         schedule, the rate of compensation is therefore $136.54 per 
 
         week.
 
         
 
              The back and hip surgeries have clearly left claimant with 
 
         physical impairments of the body as a whole.  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.
 
         
 
              Functional,impairment ratings in this case range from 10-15 
 
         percent of claimant's back.  The only rating of her hip is 15 
 
         percent.  Dr. Found noted that claimant's lower extremities were 
 
         extremely deconditioned.  The lifting restrictions which he 
 
         placed on her were an eight-pound maximum and a four-pound 
 
         repetitive limit.  Claimant is restricted from performing many of 
 
         the activities of normal day-to-day life by Drs. Phelps and 
 
         Jeffries. None of the physicians have indicated that claimant is 
 
         physically capable of returning to any of the types of employment 
 
         which she has previously held, in particular that of a cook or 
 
         waitress. Since she is restricted from performing parts of what 
 
         would be considered normal housework, it stands to reason that 
 
                      
 
                                                
 
                                                         
 
         she would not be capable of working as a hired housekeeper.  The 
 
         problems which claimant has with standing or sitting for extended 
 
         times restrict her from counter sales type of work or work as a 
 
         cashier in most establishments.  She has a complete lack of 
 
         office or clerical experience.  Her education is limited to the 
 
         eighth grade.  Claimant has no demonstrated aptitude for academic 
 
         pursuits.  Under the precedents established by the industrial 
 
         commissioner, claimant cannot avail herself of the odd-lot 
 
         doctrine and the shifting of the burden of proof since she has 
 
         not actually sought employment.  Collins v. Friendship Village, 
 
         Inc., file number 679258 (App. Decn. 1988); Emshoff v. Petroleum 
 
         Transp. Servs., file number 753723 (App. Decn. 1987).
 
         
 
              In this case, however, it is not necessary to rely upon the 
 
         shifting of the burden of proof in order for the claimant to 
 
         establish her entitlement to compensation for permanent total 
 
         disability.  Permanent total disability results when a person, as 
 
         the result of a work-related injury, is precluded from obtaining 
 
         regular employment in which he or she can earn a living for 
 
         himself or herself.  Guyton v. Irving Jensen Co., 373 N.W.2d 101, 
 
         103 (Iowa 1985); McSpadden v. Big Ben Coal Co., 282 N.W.2d 181, 
 
         192 (Iowa 1980); Diederich v. Tri-City R. Co., 219 Iowa 587, 594, 
 
         258 N.W. 899, 902 (1935); 2 Larson Workmen's Compensation Law, 
 
         section 52.21(d).  The record of this case contains not so much 
 
         as a hint that Barbara O'Brink is capable of reentering the 
 
         general employment market and earning sufficient wages with which 
 
         she could be self-supporting.  She is therefore permanently and 
 
         totally disabled and is entitled to recover weekly compensation 
 
         under the provisions of Iowa Code section 85.34(3).
 
         
 
              The record of this case contains many references to 
 
         claimant's state of being overweight.  That fact may have 
 
         affected her agility and caused her to fall when a younger, more 
 
         nimble person may not have fallen from the ladder.  The excessive 
 
         weight may very well have impaired her recovery.  As Dr. Phelps 
 
         indicated, it aggravates her disability.  It is, nevertheless, 
 
         the way she was when she was hired.  It is the way she has been 
 
         throughout her adult life.  The fact that she is overweight does 
 
         not mean that she is not disabled.
 
         
 
              Exhibit 36 contains a summarization of other exhibits found 
 
         in the record regarding the expenses of medical treatment.  After 
 
         having reviewed the entire record, it is determined that all the 
 
         expenses shown on exhibit 36 were incurred in obtaining 
 
         reasonable treatment for claimant's back and hip conditions which 
 
         resulted from the May 21, 1986 fall except that $36.00 of the 
 
         charges from Dr. Jeffries for the period of August 24, 1987 
 
         through December 18, 1987 were for treating claimant's diabetes 
 
         and for a flu vaccination.  Accordingly, the charge of $286.00 is 
 
         reduced to $250.00 and the appropriate total figures contained in 
 
         exhibit 36 are likewise reduced by $36.00.  The total allowable 
 
         charges from Dr. Jeffries are therefore $1,065.50 and the 
 
         allowable total medical is therefore $24,498.16.  Defendants are 
 
         therefore responsible for payment of all the medical expenses 
 
         listed by the claimant in exhibit 36.
 
                                                
 
                                                         
 
         
 
              Defendants are also entitled to credit for amounts paid by 
 
         Blue Cross/Blue Shield of Iowa pursuant to Iowa Code section 
 
         85.38(2) and defendants' exhibit A.  An examination of all the 
 
         charges shown on the fourth and fifth pages of exhibit 5 shows 
 
         the payments made by Blue Cross/Blue Shield to have been made 
 
         upon the bills found in exhibit 36 with only four exceptions.  
 
         The charges of 10-5-87 in the amount of $62.00 with Dr. Collins 
 
         are not contained in exhibit 36 and therefore no credit is 
 
         allowed for the $55.80 paid by Blue Cross/Blue Shield for that 
 
         claim.  The charges of 9-16-87 in the amount of $95.50 from 
 
         Radiological Associates are likewise not included in the totals 
 
         found in exhibit 36 and no credit is allowed for the $85.95 paid 
 
         by Blue Cross/Blue Shield. The charges of 9-9-87 in the amount of 
 
         $65.00 from Dr. Kothari are not contained in exhibit 36 and 
 
         therefore no credit is granted for the $58.50 paid by Blue 
 
         Cross/Blue Shield on that claim.  Finally, the charges from 
 
         9-26-86 in the amount of $85.00 from Covenant Medical Center are 
 
         not contained in exhibit 36 and therefore no credit is allowed 
 
         for the $76.50 paid by Blue Cross/Blue Shield. The total amount 
 
         of credit to which the employer is entitled is therefore 
 
         $23,891.59.  The difference between the amount for which the 
 
         employer is liable as shown in exhibit 36 and the credit for 
 
         amounts paid by Blue Cross/Blue Shield is $606.57.  There is no 
 
         evidence in the record from which any award can be made for 
 
         transportation expenses incurred by claimant when seeking medical 
 
         treatment.  Defendants shall pay to the provider any portion of 
 
         the medical expenses shown in exhibit 36 which remain unpaid, 
 
         reimburse Blue Cross/Blue Shield for the amounts which it paid 
 
         for which credit has been given, and reimburse claimant for any 
 
         amounts which she herself paid directly on the medical bills and 
 
         expenses contained in exhibit 36.
 
         
 
                          FINDINGS OF FACT
 
         
 
              1.  On May 21, 1986, Barbara O'Brink was a resident of the 
 
         state of Iowa employed by the University of Northern Iowa at 
 
         Cedar Falls, Iowa.
 
         
 
              2.  O'Brink was injured on May 21, 1986 when she fell from a 
 
         ladder, landing on her buttocks, while working as a housekeeper 
 
         for the employer, University of Northern Iowa.
 
         
 
              3.  Following the injury, claimant continued to work until 
 
         September 26, 1986 when she sought medical treatment, although 
 
         her symptoms had continued and had increased.
 
         
 
              4.  Claimant has not since returned to work since September 
 
         26, 1986.  She is not now and is not likely to ever become 
 
         medically capable of returning to employment substantially 
 
         similar to that in which she was engaged at the time of injury.
 
         
 
              5.  Claimant reached the point that it was medically 
 
         indicated that further significant improvement from the injury 
 
         was not anticipated as of April 5, 1988, a date six months 
 
                                                
 
                                                         
 
         following the date of claimant's hip replacement surgery.
 
         
 
              6.  The injuries which claimant sustained in the fall on May 
 
         21, 1986 include an injury to her spine which was diagnosed as a 
 
         herniated lumbar disc between the fourth and fifth lumbar 
 
         vertebrae and an injury to claimant's hip which substantially 
 
         accelerated what had previously been a relatively latent, 
 
         asymptomatic degenerative process.  The injury necessitated the 
 
         laminectomy and total hip replacement surgeries which were 
 
         performed by Dr. Phelps and the resulting functional impairments 
 
         and physical limitations which currently afflict claimant.
 
         
 
              7.  Claimant, Minnie Eel, and Delores Boger are all fully 
 
         credible witnesses.
 
         
 
              8.  The assessment of claimant's case, as provided by Dr. 
 
         Phelps, is accepted as being correct wherever his assessment 
 
         differs from that made by Dr. Found.
 
         
 
              9.  Claimant's entire prior work history is limited to work 
 
         which involved bending, lifting, and other physical activities 
 
         which she is no longer capable of performing.  Claimant has no 
 
         experience in office work of any type and has no demonstrated 
 
         aptitude for academic achievement or retraining.  Her formal 
 
         education is limited to the eighth grade.
 
         
 
              10.  Substantial retraining for claimant at her current age 
 
         is not a realistic option.
 
         
 
              11.  Claimant does not have sufficient residual earning 
 
         capacity at the present time in order to enable herself to earn 
 
         sufficient funds with which to be self-supporting.
 
         
 
              12.  The evidence in this case does not identify a single 
 
         source of substantial gainful employment for this claimant and 
 
         the undersigned, when relying upon agency experience and 
 
         expertise, is likewise unaware of any substantial gainful 
 
         employment which would be available to this claimant in the 
 
         general labor market in view of her physical condition and other 
 
         general qualifications.
 
         
 
              13.  Claimant's injuries are the result of a single 
 
         traumatic event and are not a result of cumulative trauma.
 
         
 
              14.  All the medical expenses itemized in exhibit 36 were 
 
         incurred in obtaining reasonable treatment for the injuries that 
 
         claimant sustained on May 21, 1986, except for $36.00 of charges 
 
         with Dr. Jeffries.  The total charges incurred in obtaining 
 
         treatment for the May 21, 1986 are $24,498.16.
 
         
 
              15.  Blue Cross/Blue Shield made payments toward those 
 
         charges in the amount of $23,891.59.
 
         
 
                              CONCLUSIONS OF LAW
 
         
 
                                                
 
                                                         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Claimant sustained an injury to her back and left hip on 
 
         May 21, 1986 which arose out of and in the course of her 
 
         employment with the University of Northern Iowa.
 
         
 
              3.  Since claimant's injuries are the result of a single 
 
         traumatic incident, the cumulative trauma rule does not apply in 
 
         determining the rate of compensation.  The rate is therefore 
 
         $136.54 per week.
 
         
 
              4.  Claimant is permanently and totally disabled within the 
 
         meaning of Iowa Code section 85.34(3).  She is entitled to 
 
         receive weekly compensation at the rate of $136.54 commencing 
 
         September 26, 1986 and continuing for so long as her current 
 
         state of disability persists.
 
         
 
              5.  Claimant's recuperation ended on April 5, 1988, a date 
 
         which is six months following the date of her hip replacement 
 
         surgery.
 
         
 
              6.  The fall which claimant sustained on May 21, 1986 was a 
 
         proximate cause for the herniated lumbar disc and for the 
 
         degenerated left hip which Dr. Phelps treated and of the 
 
         resultant surgery expenses and disability.
 
         
 
              7.  The injury to the hip was an aggravation of a 
 
         preexisting condition which accelerated and made symptomatic what 
 
         had formerly been relatively latent and asymptomatic.
 
         
 
              8.  Defendants are responsible for payment of all of 
 
         claimant's medical expenses shown in exhibit 36, except for 
 
 
 
                              
 
                                                         
 
         $36.00 of charges with Dr. Jeffries, under the provisions of Iowa 
 
         Code section 85.27.  Defendants are also entitled to credit under 
 
         Iowa Code section 85.38(2) in the amount of $23,891.59.
 
         
 
                                   ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant weekly 
 
         compensation for permanent total disability at the rate of one 
 
         hundred thirty-six and 54/100 dollars ($136.54) payable 
 
         commencing September 26, 1986 and continuing thereafter, through 
 
         the date of this decision, for so long as claimant's present 
 
         state of total disability persists.
 
         
 
              IT IS FURTHER ORDERED that all amounts which are accrued as 
 
         of the date of this decision shall be paid to claimant in a lump 
 
         sum together with interest at the rate of ten percent, (10%) per 
 
         annum computed from the date each weekly payment came due until 
 
         the date of actual payment in accordance with Iowa Code section 
 
         85.30.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant's medical 
 
         expenses in the total amount of twenty-four thousand four hundred 
 
         ninety-eight and 16/100 dollars ($24,498.16).  Defendants are 
 
         entitled to credit for amounts paid by Blue Cross/Blue Shield in 
 
         the amount of twenty-three thousand eight hundred ninety-one and 
 
         59/100 dollars ($23,891.59) and shall reimburse Blue Cross/Blue 
 
         Shield for such amount.  Defendants shall pay any unpaid 
 
         remaining charges directly to the provider of the medical 
 
         services and shall reimburse claimant for any amounts that 
 
         claimant has paid for the services which were provided.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         action pursuant to Division of Industrial Services Rule 343-4.33, 
 
         including one hundred thirty-five and 00/100 dollars ($135.00) as 
 
         an expert witness fee for Dr. Jeffries, one hundred fifty and 
 
         00/100 dollars ($150.00) as an expert witness fee for Dr. Phelps, 
 
         and three hundred fourteen and 88/100 dollars ($314.88) for 
 
         deposition costs.
 
         
 
              IT IS FURTHER ORDERED that defendants file claim activity 
 
         reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 34
 
         
 
              Signed and filed this 13th day of November, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
                                                
 
                                                         
 
         
 
         Mr. Edward J. Gallagher, Jr.
 
         Ms. Cynthia Scherrman
 
         Attorneys at Law.
 
         405 East Fifth Street
 
         P.O. Box 2615
 
         Waterloo, Iowa  50704
 
         
 
         Mr. Greg Knoploh
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Building
 
         Des Moines, Iowa  50319
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1402.30, 1804, 2206, 2209
 
                                            3002, 4100
 
                                            Filed November 13, 1989
 
                                            MICHAEL G. TRIER
 
         
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BARBARA C. O'BRINK,
 
         
 
              Claimant,
 
         
 
         vs.                                        File  No. 844851
 
         
 
         UNIVERSITY OF NORTHERN IOWA,            A R B I T R A T I 0 N
 
         
 
              Employer,                             D E C I S I 0 N
 
         
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1402.30
 
         
 
              Although liability was completely denied, the evidence 
 
         clearly established, without any conflict, that the claimant fell 
 
         from a ladder and injured her back for which surgery was 
 
         performed.  Claimant also had a hip problem which her treating 
 
         physicians felt was caused or aggravated by the fall which the 
 
         employer's examining physician felt was not related to the fall. 
 
         The treating physicians' assessments were adopted over the 
 
         examining physician.  The hip injury was also held to be work 
 
         related.
 
         
 
         2209, 3002
 
         
 
              Where the fall was a single traumatic event, the fact that 
 
         claimant continued working for approximately three months did not 
 
         require application of the cumulative trauma rule in order to 
 
         have the rate be determined based upon claimant's earnings at the 
 
         time she ceased working, rather than those at the time of the 
 
         actual injury.
 
         
 
         1804, 4100
 
         
 
              Where claimant did not seek employment, it was held that she 
 
         could not avail herself of the odd-lot doctrine, but she was 
 
         nevertheless found to be permanently totally disabled.
 
         
 
         2206
 
         
 
                                                
 
                                                         
 
              Where it was likely that claimant had some preexisting 
 
         degeneration in her hip, such was held to not bar a recovery 
 
         where a rapid degeneration was found to have its onset subsequent 
 
         to the injury and brought about a need for hip replacement 
 
         surgery.
 
 
 
         
 
         
 
 
                                                           
 
 
 
 
 
 
 
 
 
 
 
                                                           
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROY ESSING,
 
              
 
              Claimant,                          File No. 844890
 
         
 
         vs.                                  A R B I T R A T I O N
 
         
 
         OSCAR MAYER FOODS CORP.,                D E C I S I O N
 
         
 
              Employer,                             F I L E D
 
              Self-Insured,
 
              Defendant.                           FEB 14 1989
 
         
 
                                               INDUSTRIAL SERVICES
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Roy Essing, 
 
         claimant, against Oscar Mayer Foods Corporation, employer and 
 
         self-insured defendant, for.benefits as a result of an alleged 
 
         injury that occurred on March 3, 1987.  A hearing was held in Des 
 
         Moines, Iowa on February 3, 1989 and the case was fully submitted 
 
         at the close of the hearing.  The record consists of the 
 
         testimony of Roy Essing, claimant, claimant's exhibits 1, 2 and 
 
         3, and joint exhibits 1 through 10.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the alleged injury.
 
         
 
              That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is industrial 
 
         disability to the body as a whole.
 
         
 
              That the time off work for which claimant now seeks either 
 
         temporary total disability or healing period benefits is from 
 
         March 19, 1987 to April 20, 1987.
 
         
 
              That the rate of compensation in the event of an award is 
 
         $299.50 per week.
 
         
 
              That the fees charged for medical services or supplies 
 
         rendered are fair and reasonable.
 
         
 
              That the expenses were incurred for reasonable and necessary 
 
         medical treatment.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              That the causal connection of the expenses to treatment for 
 
         a medical condition upon which claimant is now basing his claim 
 
         is admitted but that the causal connection of this condition to a 
 
         work injury remains an issue to be decided in these proceedings.
 
         
 
              That in the event that claimant is awarded medical benefits 
 
         that the amount of entitlement is $594.11.  This amount is the 
 
         amount that remains unpaid after the application of claimant's 
 
         employee non-occupational group health plan benefit payments.  It 
 
         is the amount which claimant was required to pay himself.
 
         
 
              That defendant claims no credit then for benefits paid prior 
 
         to hearing under an employee non-occupational group health plan.
 
         
 
              That defendant makes no claim for workers' compensation 
 
         benefits paid prior to hearing.
 
         
 
              That there are no bifurcated claims.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether claimant sustained an injury on or about March 3, 
 
         1987 which arose out of and in the course of employment with 
 
         employer.
 
         
 
              Whether the injury was the cause of temporary disability.
 
         
 
              Whether the injury was the cause of permanent disability.
 
              
 
              Whether claimant is entitled to temporary disability 
 
              benefits.
 
              
 
              Whether claimant is entitled to permanent disability 
 
              benefits.
 
              
 
              Whether claimant is entitled to medical benefits.
 
              
 
              Whether claimant is entitled to be reimbursed for an 
 
         independent medical examination pursuant to Iowa Code section 
 
         85.39.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Of all of the evidence that was introduced, the following is 
 
         a summary of the evidence most pertinent to this decision.
 
         
 
              Claimant was 53 years old at the time of the injury and 55 
 
         years old at the time of the hearing.  He graduated from high 
 
         school in 1952, passed a two year college equivalency test and 
 
         then attended pilot training in the United States Air Force. 
 
         Claimant has also studied for and obtained a commercial pilot's 
 
         license (Exhibit 8, page 3).  Claimant's prior employments are 
 
         mostly laboring types of work, farm work and packinghouse work 
 
         (Ex. 6, pp. 10-12).  He denies any prior employment injuries but 
 
         was seriously injured in an automobile accident in 1958 in which 
 
         he injured his neck and wrist and did not work for approximately 
 
         two years.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant began work for employer in 1965 trimming hams and 
 
         picnics and he did various other jobs over the years.  He became 
 
         a janitor in 1984 and performed that job until May of 1988.  
 
         Since then he has been trimming bellies until the date of this 
 
         hearing on February 3, 1989, at which time he was terminated 
 
         because the plant is closing.  His employment for employer spans 
 
         approximately 24 years (Ex. 8, p. 5).
 
         
 
              For about two weeks prior to March 3, 1987, claimant felt 
 
         like something was happening in his groin area which he could 
 
         only describe as pressure (Ex. 8, pp. 8 & 9).  On March 3, 1987, 
 
         while claimant was performing the janitor job, he dumped a barrel 
 
         of sawdust (actually bone dust) and felt pressure in his left 
 
         side. He found a lump in his groin area and pushed it back in.  
 
         He reported this to one of the nurses (Ex. 5, p. 2). She told him 
 
         not to lift so much and to avoid heavy lifting.  Two weeks later 
 
         he reported his condition again to the other company nurse and 
 
         she sent him to see Steven Sohn, M.D., the plant physician, on 
 
         March 16, 1987 (Ex. 8, pp. 10-12).  Dr. Sohn referred claimant to 
 
         Mansour Jadali, M.D., a general surgeon.  Claimant saw Dr. Jadali 
 
         on March 17, 1987.  Dr. Jadali performed a herniorrhaphy and left 
 
         inguinal hernia repair on March 20, 1987 (.Claimant's Ex. 1; Ex. 
 
         4, pp. 1-4).
 
         
 
              Claimant gave a very factual, complete and succinct 
 
         statement of facts at his interrogatory number 6 in these words:
 
         
 
              The nature of my job is picking up barrels of scrap (bone 
 
              and meat scraps) and then dump them into a tub, also dumping 
 
              miscellaneous objects into tub; each barrel [sic] weighs 
 
              between 20 lbs. and up to 100 lbs.; I always feel like I had 
 
              to do this in a hurry; then on March 3, 1987, in the evening 
 
              I picked up a barrel of saw dust [sic] weighing about 90 
 
              lbs.; I had to pick up the barrel chest high and dump it 
 
              into the tub; when I picked up that barrel I felt pressure 
 
              and pain and noted swelling in my groin area.  The next day 
 
              on March 4, 1987, I notified the company nurse of this 
 
              problem - Pat Massengale.  Then on or about March 13, 1987, 
 
              I informed Kay Stokely that it was giving me more problems 
 
              and I informed her how it happened back on March 3, 1987.  
 
              Pat Massengale, who works in the nurses station, on March 4, 
 
              1987 told me that I had to watch what I was lifting and not 
 
              to lift such a heavy load.  Kay Stokely, on March 13, 1987, 
 
              then set up an appointment with Dr. Sohn.
 
         
 
         (Ex. 6, p. 15)
 
         
 
              The janitor job which claimant performed involved picking up 
 
         meat scraps off of the floor, putting them in barrels and carts, 
 
         and dumping the barrels at various times during the day.  The 
 
         barrels weigh any where from 20 pounds to 100 pounds.  Normally a 
 
         barrel would weigh about 65 pounds.  Claimant always dumped the 
 
         barrels by hand until this incident occurred.  Since then he has 
 
         waited till the boners are done and used their barrel dumper. 
 
         Claimant estimated that he dumped four to five heavy barrels a 
 
         day and probably 40 to 50 or 50 to 60 of the lesser weight 
 
         barrels per day.  He said that most of his time was spent picking 
 
         up meat and filling the barrels.  His heaviest work was, however, 
 
         dumping the barrels (Ex. 8, pp. 6 & 7).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant said he was hospitalized for three days and that he 
 
         was off work for approximately five weeks after that pursuant to 
 
         doctor's orders (Ex. 8, p. 14).  Dr. Sohn saw him for the follow 
 
         up care after the surgery which was performed by Dr. Jadali.
 
         
 
              Claimant testified that he returned to work in April of 
 
         1987. He worked with restrictions for approximately a month.  
 
         After that he continued to perform his old job as a janitor until 
 
         may of 1988.  At that time he voluntarily transferred to get away 
 
         from handling heavy loads.  His new job of trimming bellies paid 
 
         $.20 per hour more, but he worked fewer hours.  Claimant 
 
         testified that doing the janitor job after the surgery caused him 
 
         to feel what he described as pressure in his groin.  He felt this 
 
         especially when straining to pick up stuff.  He has not had any 
 
         problem of any kind trimming bellies.  He said that he never did 
 
         have very much pain either before or after the surgery.
 
         
 
              Claimant stated that after the surgery he no longer lifted 
 
         the heavy barrels but instead used the barrel dumper.  He 
 
         testified that he tries not to lift over 50 pounds as his own 
 
         personally selected weight lifting restriction.  He said that the 
 
         injury did not interfere with the performance of his job as a 
 
         janitor after he returned to work from the surgery and before he 
 
         transferred to trimming bellies (Ex. 8, pp. 18-21).  Claimant 
 
         admitted that none of the doctors imposed any permanent work 
 
         restrictions on him.  He himself simply decided to be careful and 
 
         not to lift heavy amounts in order to avoid a recurrence of this 
 
         trouble again.  Claimant described his disability in his own 
 
         words as follows in his interrogatories:  "...unable to lift any 
 
         object more than 50 lbs.; currently I feel uncomfortable 
 
         sensations in that area; I can not lift any objects heavier than 
 
         50 lbs. when I pick up something about that weight, I feel 
 
         pressure in that area." (Ex. 6, p. 18).
 
         
 
              The medical evidence shows that claimant saw Dr. Sohn on 
 
         March 16, 1987 for pain in the left groin which he diagnosed as 
 
         left inguinal hernia and possible mass of the left epididymis.  
 
         He continued to be responsible for claimant's care after the 
 
         surgery until he released him to return to work on April 20, 
 
         1987. Claimant was to be restricted from lifting more than 25 
 
         pounds for the next four weeks after returning to work (Ex. 1, 
 
         pp. 1 & 2).
 
         
 
              In his deposition given on January 13, 1989, Dr. Sohn 
 
         described a hernia as a preexisting condition and weakness from 
 
         birth in the abdominal wall in the groin that can be exacerbated 
 
         by heavy physical labor or lifting (Ex. 9, p. 7).  He further 
 
         testified that claimant did not have a permanent partial 
 
         impairment (Ex. 9, pp. 7, 14 & 15).  He stated that he disagreed 
 
         with the opinion of Paul From, M.D., that claimant sustained a 10 
 
         percent impairment of the whole man (Ex. 9, p. 9).  Dr. Sohn said 
 
         he examined claimant on April 17, 1987 following the surgery.  
 
         The wound was completely healed.  He has seen claimant several 
 
         times since then and claimant did not mention any recurrence (Ex. 
 
         9, p. 11).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The following colloquy transpired between claimant's counsel 
 
         and Dr. Sohn:
 
         
 
                   Q.  Doctor, would you have an opinion as to whether or 
 
              not Mr. Essing.'s job, that is to say repetitive lifting of 
 
              heavy barrels for a substantial period of time, would that 
 
              more probable than not cause the aggravation that he 
 
              experienced by way of the hernia?
 
         
 
                   A.  I would feel that it is certainly a factor as far 
 
              as an exacerbation of the hernia.  People who do heavy 
 
              lifting have more problems with inguinal hernias than people 
 
              who are involve (sic) in sedentary activities.
 
         
 
                   Q.  Would you say that would be more probable than not 
 
              the cause of his hernia?
 
         
 
                   A.  Well, the cause of a hernia is a congenital 
 
              weakness.  The development of this into a medical problem 
 
              certainly is related to the type of work that he does.
 
         
 
         (Ex. 9, pp. 12 & 13)
 
         
 
              Dr. Sohn further testified that Dr. From's description of a 
 
         healed left inguinal hernia repair scar without recurrence would 
 
         indicate that there is no permanent partial impairment (Ex. 9, p. 
 
         14).
 
         
 
              Dr. Jadali saw claimant on March 17, 1987 at which time he 
 
         diagnosed left indirect inguinal hernia (Ex. 2, p. 2).  He 
 
         performed a herniorrhaphy on March 20, 1987 (Ex. 2, p. 3).  Dr. 
 
         Jadali very succinctly summarized his position in a letter dated 
 
         January 21, 1988 as follows:
 
         
 
              Mr. Roy Essing was referred to me by Drs. Sohn and Klise of 
 
              Perry, Iowa and I examined him on 3/17/87 and he was found 
 
              to have a left inguinal hernia.  He was scheduled for 
 
              surgery on 3/30/87 and the left inguinal hernia was repaired 
 
              and a lipoma of the cord was excised.  In answer to your 
 
              questions any strenuous exercise or heavy lifting could 
 
              aggravate or cause a hernia.  Mr. Essing has been told not 
 
              to do any heavy lifting postoperatively because of the 
 
              chance of recurrence. I do not think that he had any 
 
              permanent damage from the surgery but he is prohibited to do 
 
              any heavy-duty job.
 
         
 
         (Ex. 2, p. 1)
 
         
 
              Dr. Jadali also testified by deposition on January 20, 1989 
 
         that he is a board certified general surgeon and that he has been 
 
         in practice for 16 years.  The witness was referred to the last 
 
         sentence in the letter above and was then asked if claimant had 
 
         any permanent partial impairment to which the doctor replied "No, 
 
         I don't think so."  (Ex. 10, p. 6).  Dr. Jadali said that a 
 
         hernia is something congenital.  Heavy lifting could aggravate 
 
         the hernia or,it could be a predisposing factor (Ex. 10, pp. 10 & 
 
         11).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Paul From thoroughly examined claimant on December 4, 
 
         1987 and noted a well healed left inguinal hernia repair scar 
 
         without recurrence and absence of any right inguinal hernia.
 
         
 
              From his history as given me and from medical data I did 
 
              review, it would appear that there is a causal relationship 
 
              between his work and the development of his inguinal hernia. 
 
              He gives no history to suggest other significant trauma in 
 
              lifting or straining to produce a hernia.  His work at Oscar 
 
              Mayer certainly is of the magnitude in which a hernia could 
 
              develop.  He has now healed fairly well and I would find no 
 
              significant impairment at this time.
 
         
 
              It would be my opinion, from a review of all data and my own 
 
              examination, and with a reasonable degree of medical 
 
              certainty, that there is a relationship between the 
 
              development of the left inguinal hernia in this case, and 
 
              his employment at Oscar Mayer.
 
              
 
         (Ex. 3, p. 5)
 
         
 
              Dr. From wrote a follow up letter on December 22, 1987 in 
 
         which he stated:
 
              
 
              I did write you on December 7, 1987, regarding my evaluation 
 
              of Mr. Essing.
 
              
 
              In that letter I did state that I could find no significant 
 
              impairment at this time, and that was based upon his 
 
              returning to the same work he had done prior to his hernia 
 
              repair.  However, from a standpoint of whole man impairment 
 
              as a residual of that hernia, I do believe that he has a 10% 
 
              impairment of the whole man.
 
              
 
         (Ex. 3, p. 1)
 
         
 
              Dr. From charged $225 for his examination (Ex. 3, p. 2).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
              
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on March 3, 1987 which arose 
 
         out of and in the course of his employment.  McDowell v. Town of 
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
              
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 254 N.W. 35 (1934) at 731-32, discussed 
 
         the definition of personal injury in workers' compensation cases 
 
         as follows:
 
              
 
              While a personal injury does not include an occupational 
 
              disease under the workmen's Compensation Act, yet an injury 
 
              to the health may be a personal injury [Citations omitted.] 
 
              Likewise a personal injury includes a disease resulting from 
 
              an injury....The result of changes in the human body 
 
              incident to the general processes of nature do not amount to 
 
              a personal injury.  This must follow, even though such 
 
              natural change may come about because the life has been 
 
              devoted to labor and hard work.  Such result of those 
 
              natural changes does not constitute a personal injury even 
 
              though the same brings about impairment of health or the 
 
              total or partial incapacity of the functions of the human 
 
              body.
 
         
 
                  ....
 
         
 
              A personal injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the body, the 
 
              impairment of health, or a disease, not excluded by the act, 
 
              which comes about, not through the natural building up and 
 
              tearing down of the human body, but because of a traumatic 
 
              or other hurt or damage to the health or body of an 
 
              employee. [Citations omitted.]  The injury to the human body 
 
              here contemplated must be something, whether an accident or 
 
              not, that acts extraneously to the natural processes of 
 
              nature and thereby impairs the health, overcomes, injures, 
 
              interrupts, or destroys some function of the body, or 
 
              otherwise damages or injures a part or all of the body.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of March 3, 1987 is causally related 
 
         to the disability on which he now bases his claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L.O. Boggs, 236 Iowa 296, 18 N.W.2d  607  (1945).  A possibility 
 
         is insufficient; a probability is  necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
         N.W.2d 128 (1967).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler v. United States Gypsum Co., 252 Iowa 
 
         613, 620, 106 N.W.2d 591 (1960), and cases cited.
 
         
 
              An employee is not entitled to recover for the results of a 
 
         preexisting injury or disease but can recover for an aggravation 
 
         thereof which resulted in the disability found to exist.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
         Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 
 
         299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960).  See 
 
         also Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist, 
 
         218 Iowa 724, 254 N.W. 35 (1934).
 
         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that he sustained an injury arising out of and in 
 
         the course of employment with employer on or about March 3, 1987 
 
         when his congenital hernia condition was aggravated by the heavy 
 
         lifting of his work as a janitor dumping barrels and aggravated 
 
         the condition to the point that claimant required a herniorrhaphy 
 
         and repair of a left inguinal hernia.
 
         
 
              Claimant's description of lifting heavy barrels weighing up 
 
         to 90 or 100 pounds approximately four to five times each day and 
 
         smaller barrels weighing from 20 pounds up to 65 pounds 40 to 60 
 
         times a day, every day, for up to 12 hours a day on some days and 
 
         up to five and one-half days a week during some weeks, for 
 
         approximately three years from 1984 to 1987, coupled with the 
 
         medical testimony of all three doctors makes a clear case for an 
 
         injury arising out of and in the course of employment with 
 
         employer.  Claimant was interrogated by all three doctors as well 
 
         as both counsel and no other cause for the injury was seriously 
 
         suggested or even advanced.
 
         
 
              Dr. From unequivocally stated that there was a causal 
 
         connection between claimant's work and the development of his 
 
         inguinal hernia (Ex. 3, p. 5).
 
         
 
              Dr. Sohn, claimant's treating physician, selected by 
 
         employer, did not responsively answer the question, but it would 
 
         appear that he believed that there was a causal connection.  He 
 
         said it was a factor as far as an exacerbation of a hernia, 
 
         people who do heavy lifting have more problems than those who 
 
         have sedentary work and the development of his congenital 
 
         weakness into a medical problem certainly is related to the type 
 
         of work that he did (Ex. 9, pp. 12 & 13).  Further evidence that 
 
         Dr. Sohn thought that heavy lifting at work was a cause of 
 
         claimant's hernia condition is found in Dr. Sohn's office note of 
 
         March 16, 1987 at the time he first saw claimant and diagnosed 
 
         the hernia.  At that time he said that patient is not to do any 
 
         heavy lifting at the plant greater than 25 pounds (Ex. 1, P. 1).  
 
         Evidentially, Dr. Sohn felt that heavy lifting was aggravating 
 
         the hernia condition or he would not have prohibited it.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Jadali said that strenuous exercise or heavy lifting 
 
         could aggravate or cause a hernia (Ex. 2, p. 1) or be a 
 
         predisposing factor (Ex. 10, pp. 10 & 11).
 
              
 
              Therefore, not only the greater weight of the evidence, but 
 
         practically all of the evidence, supports the conclusion that 
 
         claimant did sustain an injury which arose out of and in the 
 
         course of his employment with employer.
 
         
 
              The next issue is causal connection of temporary disability. 
 
         Dr. Sohn said that claimant was under his care from March 16, 
 
         1987 to April 20, 1987 in a return to work certificate.  However, 
 
         the parties stipulated that claimant was actually off work from 
 
         March 19, 1987 to April 20, 1987 (paragraph 4, prehearing report 
 
         and order approving same).  Therefore, it is determined that 
 
         claimant is entitled to four weeks and four days of temporary 
 
         total disability benefits pursuant to Iowa Code section 85.33(1).
 
         
 
              The next issue is medical benefits.  The parties stipulated 
 
         that if defendants were found liable for an injury, then claimant 
 
         was entitled to an award of $594.11 (Cl. Ex. 1, 2 & 3) which is 
 
         the portion of claimant's medical expenses not covered by the 
 
         employee non-occupational group health plan medical benefits (Ex. 
 
         6, p. 10).  Therefore, claimant is entitled to the payment of 
 
         $594.11 in medical expenses.
 
         
 
              The next issue is causal connection of permanent disability. 
 
         Claimant did not sustain the burden of proof by a preponderance 
 
         of the evidence that the injury was the cause of permanent 
 
         impairment or disability.  First of all, claimant himself could 
 
         not testify to either a loss of actual earnings or a loss of 
 
         earning capacity as of the date of the hearing.  Claimant was off 
 
         four weeks and four days until April 20, 1987.  When he returned 
 
         to work he did not lift more than 25 pounds for four weeks.  
 
         After that restriction expired, in May of 1987, claimant 
 
         testified that he returned to his job as a janitor and performed 
 
         it until May of 1988 when he decided to get away from hauling 
 
         heavy loads and dumping barrels.  This was claimant's own 
 
         personal precautionary decision.  It was not imposed by any 
 
         physician in the case -- the treating physician, the surgeon or 
 
         claimant's own evaluating physician.
 
         
 
              Claimant testified at the hearing and stated in his answers 
 
         to interrogatories that he avoided lifting over 50 pounds because 
 
         it strains him and he feels pressure when he attempts to lift 
 
         this much weight or more.  This may be a wise decision but it is 
 
         based on claimant's own subjective, self-imposed restriction.  It 
 
         was not medically imposed or advised.  Not even Dr. From, 
 
         claimant's own examining and evaluating physician, ever 
 
         recommended any lifting restriction at any time (Ex. 3, pp. 1-3).  
 
         The fact that claimant subjectively feels uncomfortable, feels a 
 
         strain or feels pressure may be the result of the operation of 
 
         claimant's first fundamental instinct of self preservation in 
 
         view of the occurrence of the left inguinal hernia.  It may also 
 
         be a wise choice on claimant's part in view of his left inguinal 
 
         hernia. Nevertheless, apprehension or fear of a possible injury, 
 
         unsupported by objective medical evidence, cannot be the basis 
 
         for impairment or actual disability.  Waller v. Chamberlain 
 
         Manufacturing, II Iowa Industrial Commissioner Report 419, 425 
 
         (1981).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Sohn testified that claimant did not have any permanent 
 
         partial impairment (Ex. 9, pp. 7, 14 & 15).  Dr. Jadali said that 
 
         claimant had no permanent damage (Ex. 2, p. 1).  Dr. Jadali 
 
         testified again in his deposition that in his opinion claimant 
 
         did not have any permanent impairment, but at the same time he 
 
         did not encourage him to do any heavy lifting (Ex. 10, pp. 6 & 
 
         9). Initially, Dr. From stated on February 7, 1987, that claimant 
 
         was fairly healed and that he found no significant impairment at 
 
         that time (Ex. 3, p. 5).  Then in a reply to a letter from 
 
         claimant's counsel, Dr. From said on December 22, 1987 that 
 
         claimant did have a 10 percent impairment of the whole man (Ex. 
 
         3, p. 1).
 
         
 
              From the foregoing evidence it is determined that the weight 
 
         of the evidence is that claimant does not have a compensable 
 
         permanent impairment or disability.  Claimant's personal weight 
 
         restriction of 50 pounds is self imposed and not medically 
 
         imposed.  There is no evidence it is permanent.  Claimant's 
 
         feeling of being uncomfortable, strained or feeling pressure is 
 
         some evidence of possible impairment but it is not supported by 
 
         objective medical evidence.  Dr. Sohn and Dr. Jadali said that 
 
         claimant did not have a permanent impairment.  Dr. From initially 
 
         stated that claimant had no significant impairment and initially 
 
         he did not give claimant an impairment rating.  The fact that 
 
         claimant subjectively feels that he should not lift over 50 
 
         pounds and that Dr. Jadali does not encourage him to do heavy 
 
         lifting does not sustain the burden of proof by a preponderance 
 
         of the evidence that claimant has sustained a permanent 
 
         impairment or disability.  The greater weight of the evidence 
 
         shows that claimant is not impaired or disabled.
 
         
 
              Iowa Code section 85.39 provides as follows:
 
         
 
              If an evaluation of permanent disability has been made by a 
 
              physician retained by the employer and the employee believes 
 
              this evaluation to be too low, the employee shall, upon 
 
              application to the commissioner and upon delivery of a copy 
 
              of the application to the employer and its insurance 
 
              carrier, be reimbursed by the employer the reasonable fee 
 
              for a subsequent examination by a physician of the 
 
              employee's own choice, and reasonably 
 
              necessary.transportation expenses incurred for the 
 
              examination.  The physician chosen by the employee has the 
 
              right to confer with and obtain from the employer-retained 
 
              physician sufficient history of the injury to make a proper 
 
              examination.
 
         
 
              Claimant is entitled to an Iowa Code section 85.39 
 
         independent evaluation.  Defendant has been found liable for this 
 
         injury.  Therefore, liability is established.  McSpadden V. Big 
 
         Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Bjorklund v. 
 
         Pittsburgh-Des Moines Steel Company, Thirty-three Biennial Report 
 
         of the Industrial Commissioner 101 (Appeal Decision 1977).  Dr. 
 
         Sohn and Dr. Jadali were employer retained physicians.  Both of 
 
         them determined that claimant was not permanently impaired and 
 
         did not give an impairment rating.  Failure of employer's 
 
         physicians to find impairment or to give an impairment rating is 
 
         construed as a rating which the employee may consider as too low.  
 
         Kilness v. Ebasco Services, Inc., Thirty-four Biennial Report of 
 
         the Industrial Commissioner 161 (1979) and Coble v.  Metromedia, 
 
         Inc., Thirty-four Biennial Report of the Industrial Commissioner 
 
         70 (1979).  Lawyer & Higgs, Iowa Workers' Compensation -- Law and 
 
         Practice, section 21-12, page 175.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
              It is not necessary for claimant to apply for reimbursement 
 
         for an independent examination by a physician of his own choice 
 
         prior to the examination or prior to hearing.  Pirozek v. Swift 
 
         Independent Packing & National Union Fire Insurance Company, File 
 
         Number 803955 dated December 22, 1986.
 
         
 
              The only condition precedent is a medical evaluation by an 
 
         employer retained physician.  Industrial Commissioner Robert C. 
 
         Landess made the following determination in the case of Pirozek 
 
         v. Swift Independent Packing & National Union Fire Insurance 
 
         Company and Second Injury Fund of Iowa, File Numbers 753643, 
 
         753642, and 724893 (Appeal Decision February 18, 1987).
 
         
 
              Claimant sought an independent medical examination by a 
 
              physician of his own choice.  Although application was not 
 
              made prior to the examination, the condition precedent of an 
 
              evaluation made by an employer retained physician was 
 
              present.  The application is now made for reimbursement of 
 
              the reasonable fee of, the examination.  The provision for 
 
              reimbursement does not come into play until, as here, the 
 
              defendants' liability is established.  See McSpadden v. Big 
 
              Ben Coal Co., 288 N.W.2d 181, 194 (Iowa 1980).  The 
 
              allowance of the reasonable fee for such examination is 
 
              correct.
 
         
 
              Dr. From's fee in the amount of $225 (Ex. 3, P. 2) is 
 
         reasonable.  It is therefore determined that claimant is entitled 
 
         to the payment of $225 for the independent medical examination of 
 
         Dr. From pursuant to Iowa Code section 85.39.  Claimant did not 
 
         submit a claim for reasonable,transportation expense to see Dr. 
 
         From and therefore none is allowed.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              THEREFORE, based upon the evidence presented, the following 
 
         findings of fact are made:
 
         
 
              That claimant was employed by employer for approximately 24 
 
         years from 1965 to the date of the hearing on February 3, 1989.
 
         
 
              That claimant performed the job of a janitor beginning in 
 
         1965 and that this job required picking up meat scraps off of the 
 
         floor, putting them in barrels and then dumping the barrels.
 
         
 
              That claimant dumped four or five barrels a day which 
 
         weighed approximately 90 or 100 pounds and claimant dumped 
 
         between 40 and 60 barrels a day which weighed any where from 20 
 
         pounds to 65 pounds.
 
         
 
              That on or about March 3, 1987, claimant experienced 
 
         pressure in his left groin and a lump appeared after he dumped a 
 
         barrel of bone dust which weighed approximately 90 pounds.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              That claimant was diagnosed as having a left inguinal hernia 
 
         and that.he received a herniorrhaphy and hernia repair on March 
 
         20, 1987.
 
         
 
              That claimant was off work from March 19, 1987 to April 20, 
 
         1987.
 
         
 
              That claimant has unpaid medical expenses in the amount of 
 
         $594.11 which were caused by this injury.
 
         
 
              That Dr. From and Dr. Sohn testified that heavy lifting at 
 
         work was the cause of claimant's left inguinal hernia.  Dr. 
 
         Jadali testified that claimant's work could be the cause of the 
 
         inguinal hernia.
 
         
 
              That no other cause for the inguinal hernia was suggested or 
 
         advanced by the evidence.
 
         
 
              That claimant did sustain an injury arising out of and in 
 
         the course of his employment on March 3, 1987 when he lifted a 
 
         heavy barrel, felt pressure in his left side and a lump appeared 
 
         in his groin.
 
         
 
              That Dr. Sohn and Dr. Jadali said that claimant did not 
 
         sustain a permanent impairment.
 
              
 
              That Dr. From initially testified that claimant did not 
 
         sustain a significant impairment but later assessed an impairment 
 
         rating of 10 percent of the body as a whole.
 
              
 
              That claimant testified that he returned to work and 
 
         performed his job as a janitor for approximately one year at the 
 
         same rate of pay and received a pay increase before he 
 
         voluntarily chose to transfer to another job of trimming bellies 
 
         in order to avoid heavy lifting as a matter of his own personal 
 
         decision.
 
         
 
              That none of the three medical doctors imposed any permanent 
 
         medical restrictions of any kind on claimant's activities either 
 
         at work or away from work including Dr. From, claimant's own 
 
         evaluating physician.
 
         
 
              That the cost of claimant's independent medical examination 
 
         was $225 with Dr. From.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         foregoing principles of law, the following conclusions of law are 
 
         made:
 
         
 
              That claimant sustained an injury on or about March 3, 1987 
 
         which resulted in a left inguinal hernia.
 
         
 
              That the injury caused claimant to be off work during a 
 
         period of recovery from March 19, 1987 to April 20, 1987.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That claimant is entitled to temporary total disability 
 
         benefits for this period of time.
 
         
 
              That claimant is entitled to $594.11 in medical expenses 
 
         pursuant to Iowa Code section 85.27.
 
         
 
              That claimant is entitled to $225.00 for the cost of an 
 
         independent medical examination pursuant to Iowa Code section 
 
         85.39.
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that the injury was the cause of 
 
         permanent impairment or disability.
 
         
 
              That claimant is not entitled to permanent disability 
 
         benefits.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendant pay to claimant four point five-seven-one 
 
         (4.571) weeks of temporary total disability benefits at the rate 
 
         of two hundred ninety-nine and 50/100 dollars ($299.50) per week 
 
         in the total amount of one thousand three hundred sixty-nine and 
 
         01/100 dollars ($1,369.01) commencing on March 19, 1987.
 
         
 
              That defendant pay this amount to claimant in a lump sum.
 
         
 
              That interest will accrue on this award pursuant to Iowa 
 
         Code section 85.30.
 
         
 
              That defendant pay to claimant five hundred ninety-four and 
 
         11/100 dollars ($594.11) in medical expenses.
 
         
 
              That defendant pay to claimant two hundred twenty-five and 
 
         no/100 dollars ($225.00) for an independent medical evaluation 
 
         pursuant to Iowa Code section 85.39.
 
         
 
              That defendant pay the cost of this proceeding pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendant file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services
 
         
 
              Signed and filed this 14th day of February, 1989
 
                                            
 
         
 
         
 
         
 
              
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                       WALTER R. McMANUS,
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert E. McKinney
 
         Mr. Wayne H. McKinney, Jr.
 
         Attorneys at Law
 
         480 6th St.
 
         P. 0. Box 209
 
         Waukee, Iowa  50263
 
         
 
         Mr. Barry Moranville
 
         Attorney at Law
 
         974 73rd St., Suite 16
 
         Des Moines, Iowa  50312
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                       
 
 
 
 
 
 
 
 
 
 
 
                                       1106, 1108.50, 1401, 1402.20
 
                                       1402.30, 1402.40, 1402.60, 2206,
 
                                       1801, 1803, 2501, 2502
 
                                       Filed February 14, 1989
 
                                       WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROY ESSING,
 
         
 
              Claimant,
 
                                                 File No. 844890
 
         vs.
 
                                              A R B I T R A T I 0 N
 
         OSCAR MAYER FOODS,
 
                                                 D E C I S I 0 N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         1106, 1108.50, 1401, 1402.20, 1402.30, 1402.40, 1402.60, 2206
 
         
 
              Claimant did prove that he sustained an injury arising out 
 
         of and in the course of employment of an inguinal hernia that 
 
         required surgical repair which was aggravated by lifting and 
 
         dumping heavy barrels at work.
 
         
 
         1801
 
         
 
              Claimant proved he was entitled to temporary total 
 
         disability for his time off work after surgery.
 
         
 
         1803
 
         
 
              Claimant did not prove any permanent disability.
 
         
 
         2501
 
         
 
               Claimant proved he was entitled to medical benefits.
 
         
 
         2502
 
         
 
              Claimant was entitled to an independent medical examination.