BEFORE THE IOWA INDUSTRIAL COMMISSIONER         
 
                  
 
WILLIAM R. WONICK,   
 
         
 
     Claimant, 
 
         
 
vs.                                  File Nos. 844906; 910226;                  
 
                                               967090; 978727;
 
                                              1039840
 
         
 
ARATEX SERVICES, INC.,                A R B I T R A T I O N
 
         
 
     Employer,                           D E C I S I O N
 
         
 
and        
 
         
 
ALEXIS,    
 
         
 
     Insurance Carrier,  
 
     Defendants.    
 
                  
 
         
 
                  STATEMENT OF THE CASE
 
         
 
This case came on for hearing on May 8, 1995 at Cedar 
 
Rapids, Iowa.  These are proceedings in arbitration wherein 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
claimant seeks compensation for permanent partial disability 
 
benefits as a result of alleged injuries occurring on 
 
January 27, 1987 represented by file no. 844906; February 
 
13, 1989 represented by file no. 910226; August 20, 1990 
 
represented by file no. 967090; February 25, 1991 
 
represented by file no. 978727; and August 13, 1991 
 
represented by file no. 1039840.  The record in the 
 
proceeding consists of the testimony of claimant, claimant's 
 
exhibits 1 through 11 and defendants' exhibits A through D.
 
         
 
                  ISSUES
 
         
 
The issues as to all above cases are:
 
         
 
1.  Whether an injury arose out of and in the course of 
 
claimant's employment on the respective dates;
 
         
 
2.  Whether there is any causal connection as to 
 
claimant's temporary total disability, healing 
 
period or permanent partial disability and the
 
alleged injuries;
 
         
 
3.  The nature and extent of claimant's disability and 
 
entitlement to disability benefits, if any;
 
         
 
4.  The 85.27 medical issues, the issues being whether 
 
the fees and treatments are fair and 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
reasonable, authorization, and whether there is any 
 
causal connection.
 
         
 
There is an additional issue as to the August 13, 1991 
 
claim (file no. 1039840), said additional issue being 
 
whether claimant gave timely notice under the Iowa 
 
Administrative Code section 85.23.
 
         
 
There is an additional issue as to the January 27, 1987 
 
alleged injury (file no. 844906) and the February 13, 1989 
 
alleged injury (file no. 910226), said additional issue 
 
being whether claimant timely filed his claim under the 
 
provisions of Iowa Administrative Code section 85.26 - 
 
statute of limitations.
 
         
 
                  FINDINGS OF FACT
 
         
 
The undersigned deputy, having heard the testimony and 
 
considered all the evidence finds that:
 
         
 
Claimant is a 37 year old high school graduate who had 
 
no other further education.
 
         
 
Claimant related his work history which involved 
 
working at his father's gas station for approximately seven 
 
years, until 1982.  Claimant did indicate that in 1979 he 
 
began part-time at the defendant employer until 1982, at 
 
which time claimant worked full-time at the defendant 
 
employer until August 1991.
 
         
 
Claimant described the nature of the defendant 
 
employer's business, which is basically a distributor of 
 
towels, clothes and accessories.  They deliver to the 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
customer and pick up the dirty linens from the customer.  He 
 
related some of the various customers of the defendant 
 
employer.
 
         
 
Claimant said he had to take the bigger truck 
 
therefore, he had more things to carry and bring back from 
 
the customers.  Claimant related the nature of his job, 
 
which was handling metal baskets which would be filled with 
 
towels, linens or shop clothes.  After picking up the dirty 
 
or used ones, he would replace them with clean ones.  He 
 
described his activity as being physical, requiring bending 
 
and picking things up, using his back and shoulders.  He 
 
said sometimes there would be rugs he would have to pick up, 
 
which would be heavier.  He indicated that on a given day he 
 
would be picking up 40 bags which would weigh 20 to 25 
 
pounds.  He would be picking up 25 to 30 rugs a day, each 
 
rug weighing approximately 5 to 10 pounds.  He described 
 
these baskets as being on wheels.  They would be raised or 
 
lowered by a hoist in the truck.  He would have to lift one 
 
edge of the basket up in order to unhook it from the hook or 
 
lift, disengaging it from the hoist.  That enabled him to 
 
wheel it either to the customer or back into the truck.
 
         
 
He emphasized that this hearing today is dealing only 
 
with his shoulder injury.  Claimant testified that prior to 
 
January 27, 1987 he had no problem with his shoulders.  He 
 
described what happened on January 27, 1987.  He indicated 
 
that he pulled his truck up in the alley and was taking a 
 
basket and putting it on a hoist when the handle broke.  He 
 
felt a pain in his shoulder like a pop, with pain being 
 
towards the top of the right shoulder.  He saw a doctor 
 
and then went back to work at the same duty; but he contends 
 
he could not do as much with his 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
right arm.  He used it, but not as much.  
 
         
 
Claimant testified that from May 22, 1988 to August 20, 
 
1990 he saw no doctor and worked steadily for the defendant 
 
employer, continuing to do the same work.
 
         
 
Claimant said that on August 20, 1990 he injured his 
 
shoulder while working.  He indicated he was bending over 
 
and his shoulder seemed to pop again.  He said this is the 
 
same type of pain as he had from his 1987 injury.  He 
 
indicated he had pain all the time since that 1987 injury.
 
         
 
Claimant stated he was terminated from the defendant 
 
employer August 13, 1991, as he did not get his commercial 
 
drivers license on time.  He indicated he blew it.  He then 
 
was unemployed for a while.  He worked at a bar for a while 
 
and said his arm was getting better, but lifting cases of 
 
beer would irritate it.
 
         
 
Claimant then said he went to work for American 
 
Demolition in 1993 and worked off and on for a year, but it 
 
was not steady work.  He was then laid off.
 
         
 
Claimant said he never experienced any injury at 
 
American Demolition which would hurt his arm or shoulder.  
 
He said he was a laborer.  He said while at that employment 
 
he never used his right arm.
 
         
 
Claimant then said that on February 14, 1994 he 
 
returned to the doctor, as he had pain in the shoulder and 
 
headaches (which he states was the same pain he experienced 
 
while working for the defendant employer).  He said he was 
 
referred to a Dr. Koch who then referred claimant to Fred J. 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
Pilcher, M.D., who performed surgery in March 1994.  It was 
 
after this surgery that the parties have stipulated that 
 
claimant was off work, namely, March 18, 1994 through April 
 
21, 1994.  This is the only healing period or temporary 
 
total disability period in dispute.
 
         
 
Claimant said that since his surgery, he now delivers 
 
pizza and works in a bar.  He said he stopped bowling and 
 
playing softball.  He did say he can golf but it irritates 
 
his shoulder. 
 
         
 
Claimant said that the total medical amount that is in 
 
dispute, namely $5,935.63, is related to his right shoulder 
 
treatment and was incurred after February 1994.
 
         
 
Claimant said his fourth injury was February 13, 1989, 
 
in which he was off five to six days.  He said at that time 
 
he was picking up a basket that had no handle.  He said at 
 
the time there was three to four inches of snow on the 
 
ground.
 
         
 
Claimant indicated his fifth injury, February 25, 1991, 
 
resulted when he was lifting rugs out of a basket.  He 
 
indicated he had a disk put back in place and was off only, 
 
at the most, one week after these injuries.  
 
         
 
At the end of the testimony, in a summary concerning 
 
these five alleged injuries, claimant's attorney basically 
 
indicated that the injuries that we were to be dealing with 
 
were only three of the five injuries, leaving the impression 
 
that two of the injuries (the February 25, 1991 and the 
 
February 13, 1989) involved something other than the 
 
shoulder, but claimant was not claiming any back injuries in 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
these proceedings.  He indicated that they are contending 
 
claimant has shoulder injuries as a result of a January 27, 
 
1987 injury, the August 20, 1989 injury and a cumulative 
 
trauma type injury resulting on August 13, 1991, claimant's 
 
last day at work (which he voluntarily left because he 
 
didn't have a commercial drivers license because he did not 
 
timely apply for it).  
 
         
 
Claimant acknowledged that his termination was not 
 
contributed by any work injury.  
 
         
 
On cross-examination claimant was referred to his 
 
deposition (Defendants' Exhibit D) taken March 22, 1994.  
 
Claimant acknowledged that out of all his injuries there 
 
were two shoulder injuries - January 1987 and August 1990.  
 
He acknowledged that the first shoulder injury, in January 
 
1987, resulted in him receiving six days of workers' 
 
compensation; and he acknowledged that he was then back to 
 
the normal job, under no medical restrictions on his return 
 
to work.
 
         
 
Claimant then was okay until August 1990, at which time 
 
he alleges his third injury, in which he was off four days, 
 
and then returned to work with no medical restrictions.
 
         
 
Claimant admitted that he had no further shoulder 
 
treatments from August 1990 until February 1994.  During 
 
that period, claimant worked from August 1990 continually 
 
until August 13, 1991, when he quit or was terminated with 
 
the defendant employer because he did not have a commercial 
 
drivers license, as claimant let it expire.  He agreed that 
 
his termination from work on August 13, 1991 had nothing to 
 
do with his injury.  He also acknowledged that at the time 
 
         
 

 
         
 
 
 
 
 
 
 
of his termination he was also working part-time when needed 
 
at Tommy's Bar.
 
         
 
Claimant acknowledged that in 1991 to 1994 he continued 
 
to play softball.  He said he played ten games in 1994.  In 
 
1992 he was in a league and played third base.  He was asked 
 
concerning his throw and he said he ran as far as he could 
 
towards first base so he wouldn't have to throw as far.  He 
 
wasn't sure whether he continued to bowl or not.  He did 
 
acknowledge doing some painting.  He acknowledged playing 
 
golf in August 1994.
 
         
 
Claimant acknowledged that he never told anyone he had 
 
a cumulative injury in August 1991.
 
         
 
In claimant's deposition he discussed the nature of his 
 
job with American Demolition, which seemed to be a very 
 
heavy and labor intense job.  He indicated that the job with 
 
them is not necessarily heavier or harder work, but it is 
 
dirtier work than his work with defendant employer.  
 
(Defendants' Exhibit D, Pages 28-34)
 
         
 
Pages 37 through 62 of said exhibit contains the 
 
claimant's discussion concerning his five injuries, one at a 
 
time, in chronological order.  It is obvious that claimant, 
 
at that time, was contending three injuries involving his 
 
right shoulder and two concerning his low back.  Said low 
 
back allegations involved February 13, 1989 and February 25, 
 
1991.  As to claimant's last alleged injury of August 13, 
 
1991, he alleges it was a cumulative injury to his shoulder.  
 
         
 
In said exhibit claimant acknowledged that he was not having 
 
any difficulty performing his job at the time he was 
 
terminated and that he was able to do all the duties that 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
were required of him in his normal job at that time.  
 
         
 
He acknowledged in his deposition, as he did at the 
 
hearing, that between August 1991 and February 1994, he did 
 
not have any medical care for his shoulder.
 
         
 
In claimant's deposition he related the extent that he 
 
played softball, bowling and golfing.  It appeared he was 
 
doing these things to some extent into 1992, which was after 
 
his latest alleged injury.
 
         
 
Claimant's exhibit 1 contains records of the Iowa 
 
Medical Clinic, of which Dr. Fred J. Pilcher is a member.  
 
Their first entry is February 4, 1988, in which the history 
 
taken indicates claimant sustained an injury to his right 
 
shoulder about nine months ago.  It had to have been a 
 
little over a year ago, as it had to have been referring to 
 
claimant's alleged January 27, 1987 injury to his right 
 
shoulder.  Through February 18, 1988, the notes indicate 
 
claimant was improving, but was still sore in his shoulder 
 
area.  The doctor was not taking him off work at that time, 
 
but was going to prescribe physical therapy, ultrasound and 
 
diathermy three times a week for a total of three weeks.  
 
         
 
Through May 28, 1988, after claimant had seen the doctor 
 
additional times, the doctor's recommendation indicated that 
 
he thought claimant's symptoms would clear and he would 
 
continue with conservative management exercises and check in 
 
a couple of months.  The notes in said exhibit then reflects 
 
that claimant did not return in two months, but saw the 
 
doctor again February 17, 1994, which is approximately three 
 
months short of six years later.  At that time the doctor 
 
indicated claimant has significant evidence of rotator cuff 
 
disease, as the claimant indicated he was continuing to have 
 
         
 

 
         
 
 
 
 
 
 
 
complaints of difficulties in his right shoulder dating back 
 
to 1988.
 
         
 
On March 18, 1994 Dr. Pilcher performed an arthroscopy 
 
with a posterior lateral portal of the shoulder.  The doctor 
 
gave claimant the return to work on April 11, 1994, and 
 
indicated claimant was doing some heavy work.  In April 1994 
 
he indicated claimant was doing well and had full range of 
 
motion.  He indicated he even played golf and his shoulder 
 
was able to tolerate this.  He then noted that the good news 
 
is claimant is left handed.  The records indicate that 
 
claimant is, in fact, right handed and does most of his 
 
actions right handed, including throwing right handed even 
 
though he does bat left handed.
 
         
 
Page 15 of claimant's exhibit 1 is a September 27, 1994 
 
letter of Dr. Pilcher, in which he stated that claimant had 
 
not been seen in his office between 1988 and 1994; that he 
 
performed surgery on claimant's right shoulder on March 18, 
 
1994 and that claimant has only been in there two times 
 
since, namely March 31, 1994 and April 21, 1994.  He 
 
indicated that claimant had full range of motion and was 
 
doing quite well at the time of his 
 
last visit.  He placed no restrictions on claimant at that 
 
time, nor, did he feel claimant had any permanent impairment 
 
relating to his right shoulder.  On April 20, 1995, Dr. 
 
Pilcher indicated that the pain claimant has in the right 
 
arm is different than when he saw him before.  His 
 
impression was that claimant had a chronic rotator cuff 
 
tendinitis.  He then opined that claimant has a 3 percent 
 
permanent impairment of the upper extremity based on his 
 
persistent discomfort and weakness.
 
         
 
                    
 
         
 

 
         
 
 
 
 
 
 
 
Several pages of the defendants' exhibits are either 
 
duplication of part of claimant's exhibits or are concerning 
 
claimant's lumbar area of his body, which, as was shown 
 
later, is not at issue here based on the record and 
 
testimony.
 
         
 
Pages 7 and 8 of defendants' exhibit C are activity 
 
reports concerning the 1987 and 1989 injuries.
 
         
 
As to the February 13, 1989 injury represented by file 
 
no. 910226 and the February 25, 1991 alleged injury 
 
represented by file no. 978727, the record is clear in 
 
addition to statements of claimant's counsel that those 
 
cases involve the lumbar or lower back section of claimant's 
 
body and that there is no longer any issue concerning that 
 
concerning those cases herein.  The undersigned sees no 
 
necessity of further discussing those cases, except that as 
 
to the February 13, 1989 alleged injury, defendants raised 
 
the affirmative defense of the statute of limitations.  
 
         
 
Page 8 of defendants' exhibit C is the activity report 
 
which shows that claimant was paid temporary total 
 
disability two weeks ending February 20, 1989.  There is no 
 
dispute to this as to any evidence or testimony of the 
 
claimant.  The undersigned is taking official notice of the 
 
petition filed as to that alleged injury.  It shows it was 
 
filed April 1, 1993, which is over four years from the date 
 
of the last payment of any benefits to the claimant.  Under 
 
the law claimant has three years to bring that cause of 
 
action.  For that reason claimant also fails for failure to 
 
file the action timely.  The undersigned therefore, finds 
 
that as to the February 13, 1989 alleged injury claimant 
 
takes nothing.
 
         
 

 
         
 
 
 
 
 
 
 
                    
 
As to the February 25, 1991 alleged injury, file no. 
 
978727, the greater weight of evidence in this case, in 
 
addition to the statement of claimant's counsel, would 
 
indicate that this alleged injury involved claimant's lower 
 
back and there is no longer a viable issue for determination 
 
in this case.  Claimant has failed to prove that he has any 
 
disability or impairment or entitled to any benefits 
 
concerning the alleged February 25, 1991 alleged injury.  
 
Therefore, the undersigned finds claimant takes nothing from 
 
that proceeding.
 
         
 
As to the January 27, 1987 alleged injury, file no. 
 
844906, claimant alleges that he incurred a right shoulder 
 
injury.  The testimony and medical records are clear that 
 
claimant was off work for no more than nine days ending 
 
February 4, 1987, and under the rules concerning temporary 
 
total disability received six days of temporary total 
 
disability benefits.  The record shows that claimant 
 
returned to his job, was able to do his job, and at the time 
 
he quit, on August 13, 1991, he was able to do his job and 
 
perform his duties.  He did not receive or seek any medical 
 
care from 1988 until around February 1994, at which time 
 
he saw Dr. Pilcher because of shoulder right shoulder pain
 
         
 
There is no evidence that claimant had any restrictions 
 
resulting from that injury.  Claimant worked for American 
 
Demolition sometime after leaving his job with the defendant 
 
employer in August 1991.  It was obvious to the undersigned 
 
that that type of work was hard and heavy work and contrary 
 
to claimant's testimony that he didn't think that job was 
 
any harder than the job with the defendant employer.  The 
 
         
 

 
         
 
 
 
 
 
 
 
undersigned feels that the nature of that job was most 
 
likely harder on a consistent basis.  Claimant did 
 
acknowledge it was a dirtier job.
 
         
 
Defendants raised the affirmative defense of claimant 
 
violating 85.26 statute of limitations provision of the Iowa 
 
Administrative Code.  It is undisputed that claimant's last 
 
payment of any benefits, namely temporary total disability 
 
benefits, ended February 4, 1987.  Claimant filed his 
 
petition April 1, 1993, which is over six years from the 
 
date of his petition.  Under the law claimant would have had 
 
to file his petition within three years from February 4, 
 
1987.  For that reason also, claimant does not prevail 
 
concerning his January 27, 1987 alleged injury.
 
         
 
The evidence is clear that claimant did not miss any 
 
more compensable work than those six days and that he 
 
returned to his job and performed the same duties, had no 
 
restrictions and no impairment during that time and up to 
 
the time he left the defendant corporation's employment on 
 
August 13, 1991.  The reason claimant left was because he 
 
did not renew his commercial drivers license.  The loss of 
 
his job had nothing to do with any alleged injury herein.
 
         
 
The undersigned therefore, finds that claimant has 
 
failed to prove that the work injury that he incurred on 
 
January 27, 1987 did cause any permanent impairment.  It 
 
only resulted in causing claimant six days of temporary 
 
total disability benefits for which he has been paid.  That 
 
claimant has failed to prove he has any permanent 
 
disability.  The undersigned also finds that claimant's 
 
claim is barred under the provisions of 85.26 of the Iowa 
 
Administrative Code for the reason that he failed to file 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
his action timely as provided by the law.
 
         
 
As to claimant's August 20, 1990 alleged injury, 
 
represented by file no. 967090, the evidence is clear that 
 
claimant did not incur any permanent disability or 
 
restrictions as a result of that injury.  The record of 
 
which the undersigned has taken official notice indicates 
 
claimant received one day of temporary total disability, 
 
said disability period ending August 24, 1990, and that 
 
claimant was not off more than a total of four days.  
 
         
 
Claimant returned to his job performing the same duties, was 
 
able to perform his work and did so until he lost his job as 
 
a result of his own actions on August 13, 1991.  As 
 
indicated earlier, claimant had not seen any doctor for his 
 
shoulder from 1988 until February 1994.  The undersigned 
 
finds that claimant did incur an injury that arose out of 
 
and in the course of his employment on August 21, 1990, 
 
which resulted in claimant incurring under the law, one day 
 
of temporary total disability; but that said work injury did 
 
not cause claimant any permanent disability, any impairment 
 
or any restrictions.  Claimant failed to carry his burden to 
 
show he is entitled to any additional recovery concerning 
 
this August 20, 1990 alleged work injury.
 
         
 
As to the last and fifth alleged injury, namely the 
 
August 13, 1991 alleged injury, file no. 1039840, which 
 
claimant alleges a shoulder injury, the record and greater 
 
weight of evidence shows that the employer did not have 
 
notice of that injury under the provisions of 85.23 of the 
 
Iowa Administrative Code.  That date of alleged cumulative 
 
injury was picked because that was claimant's last day of 
 
work, as he was only terminated because he failed to renew 
 
his commercial drivers license.  Claimant's termination was 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
because of claimant's own actions and had nothing to do with 
 
any alleged injury herein, as previously indicated.  The 
 
claimant was paid no benefits.  It appears claimant did 
 
nothing medically concerning this alleged cumulative injury 
 
until around February 1994 when he went to Dr. Pilcher 
 
complaining of right shoulder pain.  Claimant had worked at 
 
various places since he no longer worked at defendant 
 
employer, effective August 13, 1991.  One job was with 
 
American Demolition, which claimant described as heavy work.  
 
         
 
It was obvious to the undersigned that this was considerably 
 
heavier work and required considerable consistent lifting or 
 
tearing things from the floor, walls or ceilings.  Claimant 
 
also played various sports, at least up until 1992.  These 
 
sports that he played would have been detrimental, in the 
 
undersigned's opinion, to claimant's shoulder, particularly 
 
since he was right handed and complained of his right 
 
shoulder.  It was approximately two and one-half years 
 
before claimant sought any treatment for his right shoulder, 
 
namely February 17, 1994, at which time he ultimately, 
 
within a month thereafter, had surgery performed by Dr. 
 
Pilcher.  
 
         
 
Dr. Pilcher did not opine any permanent impairment or 
 
place any restrictions on claimant as of his September 27, 
 
1994 letter, and the same is true as to his April 20, 1995 
 
letter.  But in the latter letter he did opine claimant had 
 
a 3 percent permanent impairment to his upper extremity 
 
based on his persistent discomfort and weakness.  The 
 
undersigned might add that as far as the history claimant 
 
gave the doctor, it would appear to the undersigned that the 
 
doctor did not realize that claimant was doing demolition 
 
work, nor the extent of his playing of various sports.  
 
 
 
Also, he was strictly relying on claimant's comments.  He 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
did note that he hadn't seen claimant from 1988 until 
 
February 1994.  There is nothing from the doctor in which he 
 
is specifically causally connected claimant's impairment to 
 
any particular work injury.  One could conclude that he 
 
thought the nature of claimant's work contributed to his 
 
injury, but as indicated earlier, claimant has done 
 
considerable amount of work that could cause his injury 
 
since he left defendant corporation's employment in August 
 
1991.  The undersigned is concerned that claimant received 
 
no treatment or sought no medical from August 13, 1991 until 
 
February 17, 1994 and now tries to contend that it had to do 
 
with defendant employer's business and not something 
 
subsequent thereto.  There are other instances in which the 
 
undersigned questions claimant's credibility, but sees no 
 
necessity of setting that out any further in relation to the 
 
alleged injuries herein.  The undersigned finds that 
 
claimant did not incur an injury that arose out of and in 
 
the course of his employment on August 31, 1991 and that 
 
there is no causal connection as to that alleged injury and 
 
any impairment or medical condition claimant alleges herein.
 
         
 
As to the affirmative defense of the defendants under 
 
the provisions of 85.23 of the Iowa Administrative Code, the 
 
undersigned further finds that there is no credible evidence 
 
that claimant gave notice to the defendant corporation as to 
 
any August 13, 1991 injury.  Therefore, claimant would 
 
also fail under that affirmative defense.  The undersigned 
 
therefore, finds that claimant takes nothing as to his 
 
August 13, 1991 alleged cumulative injury.
 
         
 
As to the 85.27 medical dispute, this is moot in light 
 
of the above ruling, but the undersigned further finds that 
 
defendants are not responsible for the medical that is in 
 
         
 

 
         
 
 
 
 
 
 
 
dispute herein.  The parties agreed that the medical that is 
 
in dispute was incurred resulting from medical services 
 
rendered after February 16, 1994.
 
         
 
                  CONCLUSIONS OF LAW
 
         
 
The claimant has the burden of proving by a 
 
preponderance of the evidence that the alleged injury 
 
actually occurred and that it arose out of and in the course 
 
of employment.  McDowell v. Town of Clarksville, 241 
 
N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 
 
Iowa 352, 154 N.W.2d 128 (1967).  The words "arising out of" 
 
refer to the cause or source of the injury.  The words "in 
 
the course of" refer to the time, place and circumstances of 
 
the injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 
 
1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 
 
1971).
 
         
 
The claimant has the burden of proving by a preponderance of 
 
the evidence that the injury is a proximate 
 
cause of the disability on which the claim is based.  A 
 
cause is proximate if it is a substantial factor in bringing 
 
about the result; it need not be the only cause.  A 
 
preponderance of the evidence exists when the causal 
 
connection is probable rather than merely possible.  
 
Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 
 
296 (Iowa 1974).
 
         
 
The question of causal connection is essentially within 
 
the domain of expert testimony.  The expert medical evidence 
 
must be considered with all other evidence introduced 
 
bearing on the causal connection between the injury and the 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
disability.  The weight to be given to any expert opinion is 
 
determined by the finder of fact and may be affected by the 
 
accuracy of the facts relied upon by the expert as well as 
 
other surrounding circumstances.  The expert opinion may be 
 
accepted or rejected, in whole or in part.  Sondag v. 
 
Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. 
 
Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. 
 
Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
Section 85.23 requires an employee to give notice of 
 
the occurrence of an injury to the employer within 90 days 
 
from the date of the occurrence, unless the employer has 
 
actual knowledge of the occurrence of the injury.
 
         
 
The purpose of the 90-day notice or actual knowledge 
 
requirement is to give the employer an opportunity to timely 
 
investigate the facts surrounding the injury.  The actual 
 
knowledge alternative to notice is met when the employer, as 
 
a reasonably conscientious manager, is alerted to the 
 
possibility of a potential compensation claim through 
 
information which makes the employer aware that the injury 
 
occurred and that it may be work related.  Dillinger v. 
 
City of Sioux City, 368 N.W.2d 176 (Iowa 1985); Robinson 
 
V. Dep't of Transp., 296 N.W.2d 809 (Iowa 1980).  The time 
 
period for giving notice does not begin to run until the 
 
claimant as a reasonable person, should recognize the 
 
nature, seriousness and probable compensable character of 
 
the injury.  The reasonableness of claimant's conduct is to 
 
be judged in light of claimant's education and intelligence.  
 
Claimant must know enough about the condition or incident to 
 
realize that it is both serious and work connected.  Positive 
 
medical information is unnecessary if information from any 
 
source gives notice of 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
the condition's probable compensability.  Robinson, 296 
 
N.W.2d at 812.
 
         
 
Failure to give notice is an affirmative defense which 
 
the employer must prove by a preponderance of the evidence.  
 
DeLong v. Highway Comm'n, 229 Iowa 700, 295 N.W. 91 
 
(1940).
 
         
 
An original proceeding for benefits under this 
 
chapter or chapters 85A, 85B, or 86, shall not be 
 
maintained in any contested case unless the 
 
proceeding is commenced within two years from the 
 
date of the occurrence of the injury for which 
 
benefits are claimed or, if weekly compensation 
 
benefits are paid under section 86.13, within 
 
three years from the date of the last payment of 
 
weekly compensation benefits.
 
         
 
It is further concluded as to claimant's January 27, 
 
1987 injury, represented by file no. 844906, claimant 
 
incurred an injury that arose out of and in the course of 
 
his employment, but that claimant incurred no permanent 
 
disability, nor did he carry his burden to show that there 
 
is any causal connection as to claimant's alleged medical 
 
condition and said injury.  In addition thereto, claimant 
 
failed to file his action timely and therefore, his cause of 
 
action would be additionally barred under the provisions of 
 
85.26 of the Iowa Administrative Code.
 
         
 
It is further concluded that as to the February 13, 
 
1989 alleged injury, claimant failed to carry his burden of 
 
proof to show that he has any permanent disability caused by 
 
said accident.  It is further found that claimant's actions 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
were not timely filed under the provisions of 85.26 of the 
 
Iowa Administrative Code statute of limitations.  Therefore, 
 
his action is barred under that provision.  In addition 
 
thereto, claimant failed to prove that he had any back 
 
injury to his lower back.
 
         
 
As to the alleged August 20, 1990 injury, file no. 
 
967090, claimant incurred an injury that arose out of and in 
 
the course of claimant's employment on August 20, 1990 and 
 
incurred one day of temporary total disability benefits, 
 
which would be paid at $262.70 per week, but that claimant 
 
failed to prove that he incurred any permanent partial 
 
disability and failed to carry his burden of proof that 
 
shows him entitled to any additional benefits.
 
         
 
As to the February 25, 1991 alleged injury, file no. 
 
1039840, this allegedly involved the low back which was not 
 
an issue in this case and claimant has failed to prove that 
 
he is entitled to any permanent partial disability benefits 
 
as a result of this injury or that any said permanency arose 
 
out of and in the course of his employment on February 25, 
 
1991.
 
         
 
As to the August 13, 1991 alleged cumulative injury, 
 
file no. 1039840, the undersigned finds that claimant failed 
 
to carry his burden of proof to show that a cumulative 
 
injury arose out of and in the course of claimant's 
 
employment on said date, nor that any work injury on said 
 
date caused claimant to incur any permanent partial 
 
disability or any impairment or restrictions.  The undersigned 
 
further finds that claimant failed to give timely notice as 
 
provided by 85.23 of the Iowa Administrative Code concerning 
 
said 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
injury.
 
         
 
                  ORDER
 
         
 
THEREFORE IT IS ORDERED:
 
         
 
As to the January 27, 1987 alleged injury, file no. 
 
844906, claimant takes nothing further from this proceeding. 
 
         
 
Claimant shall pay the costs of this action.
 
         
 
As to the alleged February 13, 1989 injury, file no. 
 
910226, claimant takes nothing from this proceeding.
 
         
 
Costs are assessed against the claimant.
 
         
 
As to the August 20, 1990 alleged injury, file no. 
 
967090, claimant takes nothing further from this proceeding.
 
         
 
Costs are assessed against the claimant.
 
         
 
As to the February 25, 1991 alleged injury, file no. 
 
978727, claimant takes nothing further from this proceeding.
 
         
 
Claimant shall pay the costs of this action.
 
         
 
As to the alleged August 13, 1991 injury, file no. 
 
1039840, claimant takes nothing further from this 
 
proceeding.
 
         
 
Claimant shall pay the costs of this action.
 
         
 
Signed and filed this _____ day of June, 1995.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                  
 
         
 
                  
 
         
 
                        ______________________________
 
                        BERNARD J. O'MALLEY
 
                        DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
Copies to:
 
         
 
Mr. Matthew J. Petrzelka
 
Attorney at Law
 
115 Third Street SE STE 1200
 
Cedar Rapids, Iowa 52401
 
         
 
Mr. Stephen W. Spencer
 
Attorney at Law
 
PO Box 9130
 
Des Moines, Iowa 50306-9130
 
         
 
         
 
 
         
 
 
 
 
 
 
 
 
 
         
 
                               5-1100; 5-1108; 5-2401; 5-2402
 
                               Filed June 1995
 
                               BERNARD J. O'MALLEY
 
         
 
                BEFORE THE IOWA INDUSTRIAL COMMISSIONER         
 
                  
 
WILLIAM R. WONICK,   
 
         
 
     Claimant, 
 
         
 
vs.                               File Nos. 844906; 910226;                  
 
                                            967090; 978727;
 
                                           1039840
 
         
 
ARATEX SERVICES, INC.,             A R B I T R A T I O N
 
         
 
     Employer,                        D E C I S I O N
 
         
 
and        
 
         
 
ALEXIS,    
 
         
 
     Insurance Carrier,  
 
     Defendants.    
 
         
 
5-1100; 5-1108
 
Found claimant failed to prove he incurred any 
 
permanent partial disability that arose out of and in the 
 
course of his employment on January 27, 1987, February 13, 
 
1989, August 20, 1990, February 25, 1991 or August 13, 1991.  
 
Also no causal connection was found.
 
         
 
5-2402
 
Found claimant's action was barred by the statute of 
 
limitations (85.26 IAC) as to the January 27, 1987 and 
 
February 13, 1989 alleged injuries.
 
         
 
5-2401
 
Found claimant did not give timely notice 85.23 IAC) as 
 
to his August 13, 1991 alleged injury.
 
         
 
         
 
         
 
 
            
 
          
 
            
 
           
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            ROBERT PHILLIPS,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 844999
 
            C & K TRANSPORT,              :
 
                                          :           A P P E A L
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY       :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            
 
                 The record, including the transcript of the hearing 
 
            before the deputy and all exhibits admitted into the record, 
 
            has been reviewed de novo on appeal.
 
            
 
                                      ISSUES
 
            
 
                 Those portions of the proposed agency decision 
 
            pertaining to issues not raised on appeal are adopted as a 
 
            part of this appeal decision.  The issues raised on appeal 
 
            are:
 
            
 
                 1.  Did the deputy industrial commissioner err in 
 
                 awarding 32 weeks of healing period benefits, 
 
                 contrary to the testimony of the treating 
 
                 physician and the stipulation of the parties?
 
            
 
                 2.  Did the deputy industrial commissioner err in 
 
                 concluding that the correct rate of weekly 
 
                 compensation in the instant case is $217.63 per 
 
                 week?
 
            
 
                 3.  Did the deputy industrial commissioner err in 
 
                 awarding a 40 percent permanent partial disability 
 
                 to the claimant in the instant case and in 
 
                 concluding that the disability is causally 
 
                 connected to and arose out of the alleged injury?
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The findings of fact contained in the proposed agency 
 
            decision filed February 18, 1992 are adopted as final agency 
 
            action.
 
            
 

 
            
 
            Page   2
 
            
 
                 
 
            
 
                              CONCLUSIONS OF LAW
 
            
 
                 The conclusions of law contained in the proposed agency 
 
            decision filed February 18, 1992 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.  Segments designated by 
 
            brackets ([ ]) indicate language that is in addition to the 
 
            language of the proposed agency decision.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on April 26, 
 
            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. Cent. Tel. Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 It having been found that claimant fell onto a drive 
 
            shaft in the manner that he described at hearing, it is 
 
            therefore determined that he did sustain an injury which 
 
            arose out of and in the course of his employment with C & K 
 
            Transport.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of April 26, 
 
            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 
 
            Hosp., 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. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 Dr. Stines clearly connects the injury with claimant's 
 
            anal disability.  The fact that the 1986 injury may have 
 
            somehow predisposed Robert to further injury does not alter 
 

 
            
 
            Page   3
 
            
 
                   
 
                 
 
                 
 
            the result of this case.
 
            
 
                 Aggravation of a preexisting condition is one form of 
 
            compensable injury.  While a claimant is not entitled to 
 
            compensation for the results of a preexisting injury or 
 
            disease, the mere existence at the time of a subsequent 
 
            injury is not a defense.  Rose v. John Deere Ottumwa Works, 
 
            247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956).  If the 
 
            claimant had a preexisting condition or disability that is 
 
            aggravated, accelerated, worsened or lighted up so that it 
 
            results in disability, claimant is entitled to recover.  
 
            Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 
 
            812, 815 (1962).
 
            
 
                 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.
 
            
 
                 As a result of that injury, Robert was disabled and 
 
            under active medical treatment commencing May 1, 1987, and 
 
            running through November 25, 1987, when Dr. Stines released 
 
            him to return to work.*****
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The 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.  Bearce v. FMC Corp., 465 N.W.2d 531 
 
            (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 
 

 
            
 
            Page   4
 
            
 
                 
 
            
 
                 
 
            1974); 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, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            218 (1979); 2 Larson Workmen's Compensation Law, sections 
 
            57.21 and 57.31.
 
            
 
                 This case is rendered difficult due to the intervening 
 
            disability associated with the acoustic neuroma condition.  
 
            The condition is one which was not aggravated by this 
 
            injury.  It is a separate intervening event for which the 
 
            employer is not liable.  It was not disabling at the time of 
 
            the injury or at the time of the conclusion of the healing 
 
            period.  It was not disabling during the months that Robert 
 
            worked for Mike Brooks Trucking in early 1988.  It did 
 
            become disabling shortly thereafter, however.
 
            
 
                 Absent the acoustic neuroma condition, it is clear that 
 
            Robert would not have been able to resume over-the-road 
 
            truck driving as such is irreconcilable with the activity 
 
            restrictions recommended by Dr. Stines.  Robert would have a 
 
            large reduction in suitable jobs.  The number of jobs which 
 
            would fit within the restrictions recommended by Dr. Stines 
 
            would be expected to be relatively small in comparison to 
 
            what had been available to Robert prior to April 26, 1987.  
 
            Robert was earning $329 per week on the average with C & K 
 
            Transport.  That same level of earnings based upon a 40-hour 
 
            week would require an hourly rate of pay of approximately 
 
            $8.22 per hour.  It is determined that, as a result of the 
 
            April 26, 1987 injury, Robert Phillips has sustained a 40 
 
            percent permanent partial disability which entitles him to 
 
            recover 200 weeks of compensation under the provisions of 
 
            section 85.34(2)(u).  Those benefits were payable commencing 
 
            December 11, 1987, and are therefore all now past due and 
 
            owing.  The fact of the intervening disability does not in 
 
            any way reduce the employer's responsibility to pay the 
 
            claimant for the disability which was proximately caused by 
 
            the April 26, 1987, injury.  It is only death which 
 
            terminates permanent partial disability compensation and 
 
            that does not terminate any amounts which would have been 
 
            due and payable prior to the date of death.  Tibbs v. 
 
            Denmark Light & Telephone Corp., 230 Iowa 1173, 300 N.W. 328 
 
            (1941); Dille v. Plainview Coal Co., 217 Iowa 827, 250 N.W. 
 
            607 (1934); Lundeen v. Quad City Construction, Thirty-fourth 
 
            Biennial Report of the Industrial Commissioner 193 (App. 
 
            Decn. 1980).
 
            
 
                 The rate of compensation is an issue in this case.  It 
 
            brings with it the issue regarding the $.04 per mile which 
 
            is alternately referred to in the record of this case as 
 
            "other wages @ .04" or "per diem" (exhibit 7).  It was 
 
            described by the claimant as an amount which was paid for 
 
            turning in paperwork on time.  A bona fide per diem 
 

 
            
 
            Page   5
 
            
 
                  
 
                 
 
            allowance is in some manner based upon expenses of travel.  
 
            That is most commonly achieved by either a fixed daily 
 
            allowance or a reimbursement type of system.  There does not 
 
            appear to be any rational nexus between the number of miles 
 
            driven and the amount of expenses incurred for meals and 
 
            lodging.  The expenses for a day of layover would differ 
 
            little from a day when many miles were driven.  It is 
 
            determined that the so-called "per diem allowance" was not a 
 
            bona fide allowance for meals and lodging or a reimbursement 
 
            of expenses incurred for those purposes.  It was a payment 
 
            based on the amount of work performed.  Based upon 
 
            claimant's testimony, it appears as though the $.04 per mile 
 
            was actually employed as a penalty against drivers who 
 
            failed to promptly submit their paperwork following 
 
            completion of the work.  It was no more a bonus for 
 
            performing work properly or timely than the other $.14 per 
 
            mile which was apparently paid unconditionally.  If the $.04 
 
            per mile was anything other than wages for performing the 
 
            normal work it was imposed as a penalty for improper 
 
            performance of the portion of the work dealing with the 
 
            paperwork.  Where the employer assesses a penalty for 
 
            substandard work performance, it does not transform any part 
 
            of the payment of the regular wages into a bonus when the 
 
            work is properly performed and no penalty is deducted.  As 
 
            such, the entire $.18 per mile is included as the employee's 
 
            wages in determining the rate of compensation.  Minnick v. 
 
            CRST, Inc., File No. 865832 (Arb. Decn., December 21, 1989); 
 
            Widdig v. Lincoln Sales & Serv., Inc., File No. 851716 
 
            (Arb. Decn., July 20, 1989).
 
            
 
                 Robert Phillips was employed for less than 13 weeks by 
 
            C & K Transport.  The record does not show what work was 
 
            available to other employees during the 13 weeks preceding 
 
            the week in which Robert was injured.  The appropriate 
 
            method of determining the gross weekly earnings is to divide 
 
            the total amount earned by the number of weeks actually 
 
            worked.  Hardy v. Abell-Howe Co., File No. 814126 (App. 
 
            Decn., December 21, 1990); Daggett v. Ace Lines, File No. 
 
            818879 (App. Decn., August 8, 1990); Anderson v. High Rise 
 
            Constr. Specialists, Inc., File No. 850096 (App. Decn., July 
 
            31, 1990); Barker v. City Wide Cartage, I Iowa Industrial 
 
            Commissioner Report 12, 15 (App. Decn. 1980).  In this case, 
 
            Robert Phillips was employed and working for 2 and 3/7 weeks 
 
            during which time he earned a total of $799.20.  The average 
 
            weekly wages are therefore $329.02.  With claimant being 
 
            married and entitled to five exemptions, the 1986 benefit 
 
            booklet shows his weekly rate of compensation to be $217.63 
 
            per week.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 

 
            
 
            Page   6
 
            
 
            
 
                   
 
                   
 
            
 
                 That defendants pay Robert Phillips healing period 
 
            benefits at the rate of two hundred seventeen and 63/100 
 
            dollars ($217.63) per week payable commencing May 1, 1987 
 
            through November 25, 1987.
 
            
 
                 That defendants pay Robert Phillips two hundred (200) 
 
            weeks of compensation for permanent partial disability at 
 
            the rate of two hundred seventeen and 63/100 dollars 
 
            ($217.63) per week payable commencing November 26, 1987.
 
            
 
                 That all past due amounts, after credit for prior 
 
            payments in the amount of four thousand nine hundred 
 
            sixty-three and 24/100 dollars ($4,963.24), shall be paid to 
 
            claimant in a lump sum together with interest computed from 
 
            the date each payment came due until the date of actual 
 
            payment.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 That defendants shall pay the costs of this matter 
 
            including the transcription of the hearing.
 
                 
 
            
 
                 Signed and filed this ____ day of May, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Phillip Vonderhaar
 
            Attorney at Law
 
            840 Fifth Avenue
 
            Des Moines, Iowa  50309
 
            
 
            Ms. Lorraine J. May
 
            Attorney at Law
 
            4th Floor, Equitable Building
 
            Des Moines, Iowa  50309
 
            
 
                 
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                            1803; 3001
 
                                            Filed May 26, 1993
 
                                            BYRON K. ORTON
 
                                            
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         ROBERT PHILLIPS,              :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :         File No. 844999
 
         C & K TRANSPORT,              :
 
                                       :           A P P E A L
 
              Employer,                :
 
                                       :         D E C I S I O N
 
         and                           :
 
                                       :
 
         AETNA CASUALTY & SURETY       :
 
         COMPANY,                      :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ____________________________________________________________
 
         
 
         
 
         1803
 
         
 
              Claimant, a career over-the-road truck driver, sustained an 
 
         injury to his rectal area which rendered him partially 
 
         incontinent.  Awarded 40 percent permanent partial disability due 
 
         to loss of lifelong career as truck driver.  Employer held not 
 
         responsible for subsequent intervening disability associated with 
 
         a preexisting brain condition which was not affected by the work 
 
         injury.  Employer was not allowed to cease permanent partial 
 
         disability benefits at the point when the preexisting condition 
 
         became disabling (claimant was clearly totally disabled).  The 
 
         disability was evaluated as though the other condition did not 
 
         exist.
 
         
 
         3001
 
         
 
              Trucker, who was paid $.18 per mile, of which $.04 was paid 
 
         for getting his paperwork in on time and also alternately 
 
         described in the employer's records as "per diem" or "other wages 
 
         @ .04" was awarded compensation based upon earnings at the rate 
 
         of $.18 per mile.  The $.04 was not a premium or bonus.  It was 
 
         clearly not a reimbursement of expenses.  If anything, it was a 
 
         penalty which the employer imposed for substandard work in the 
 
         nature of late submission of trip documents.  The employer's 
 
         imposition of a penalty where work is not properly performed was 
 
         held to not make some portion of the wages which were paid when 
 
         work was properly performed a bonus.
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROBERT PHILLIPS,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 844999
 
            C & K TRANSPORT,              :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY       :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Robert 
 
            Phillips against his former employer, C & K Transport, and 
 
            its insurance carrier, Aetna Casualty & Surety Company, 
 
            based upon an alleged injury of April 26, 1987.  Claimant 
 
            seeks compensation for healing period, permanent partial 
 
            disability and a determination of the correct rate of 
 
            compensation.  The primary issues to be determined are 
 
            whether claimant sustained an injury which arose out of and 
 
            in the course of his employment on or about April 26, 1987; 
 
            whether the alleged injury is a cause of any temporary or 
 
            permanent disability and, if so, the extent thereof.  The 
 
            final issue is determination of the correct rate of 
 
            compensation.  It was stipulated that claimant is married 
 
            with five exemptions and has been paid 34 and 2/7 weeks of 
 
            benefits at the rate of $144.76 per week.
 
            
 
                 The case was heard at Des Moines, Iowa, on December 11, 
 
            1991.  The evidence consists of testimony from Robert 
 
            Phillips, Jeff Johnson and Carma Mitchell.  The record also 
 
            contains joint exhibits 1 through 8 and defendants' exhibit 
 
            9.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Robert Phillips is a 31-year-old married man who 
 
            graduated from high school in 1976.  The bulk of his working 
 
            life has been spent as a truck driver, though he worked 
 
            briefly in a tire and battery shop and worked in the Navy as 
 
            a photographer's mate.  As a result of photographing gory 
 
            accident scenes while in the Navy, Robert finds photography 
 
            work to be unacceptably stressful.
 
            
 
                 While in the Navy, Robert developed a problem with his 
 
            hearing.  Diagnostic tests disclosed a large acoustic 
 
            neuroma which was surgically removed.  He experienced 
 
            headaches and facial paralysis, as well as a hearing loss 
 
            following the surgery.  All but the hearing loss resolved 
 
            after a few months.  Robert received a ten percent 
 
            service-connected disability rating as a result of the 
 
            procedure.
 
            
 
                 After being honorably discharged from the Navy, Robert 
 
            resumed truck driving.  He worked for a series of employers 
 
            and, on August 17, 1986, was employed by Southwest 
 
            Transportation Company, Inc., as an over-the-road driver.  
 
            On that date, he had loaded bricks in Missouri when his 
 
            right leg fell through the trailer floor, his left leg went 
 
            straight out in front of him and he fell landing in a seated 
 
            position.  Robert delivered the load to New York, then 
 
            returned to Houston, Texas.  By the time he arrived at 
 
            Houston, he was sick, running a high fever and emitted a bad 
 
            odor.  The condition kept worsening.  Robert saw a doctor in 
 
            Houston, but chose to return to Phoenix in order to be close 
 
            to home.  When he arrived, his wife took him directly to the 
 
            hospital.  Robert was found to have a large ischiorectal 
 
            abscess in his left buttock.  F. Darwin Zahn, M.D., 
 
            performed surgery to drain the abscess.  In the process, it 
 
            was noted that gas and necrotic tissue were present.  The 
 
            fascia of the gluteus muscle had been destroyed by the 
 
            infection.  Robert was released to return to work effective 
 
            September 22, 1986 (exhibit 1A).
 
            
 
                 Robert did resume work with Southwest Transportation 
 
            Company, Inc., and remained so employed through mid-December 
 
            1987.  The amount of his actual earnings cannot be 
 
            determined from the contents of exhibit 8.  The exhibits 
 
            show some earnings, advances and expense reimbursement but 
 
            do not disclose the manner in which those factors were 
 
            reflected in the paychecks which are in evidence as part of 
 
            exhibit 8.
 
            
 
                 In January 1987, Robert and his family moved to 
 
            Pleasantville, Iowa, to be near his wife's family.  He 
 
            initially performed odd work and farm labor until obtaining 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            employment with C & K Transport in early April 1987.  
 
            Exhibit 7 shows that his first day of work was April 14, 
 
            1987, and that his last day of work was April 30, 1987.  
 
            According to exhibit 7, he earned at total of $799.20 during 
 
            that relative brief period of 2 and 3/7 weeks.  Robert's 
 
            average gross earnings are therefore $329.02 per week.
 
            
 
                 On April 26, 1987, Robert was preparing to leave on a 
 
            road trip.  While attaching the air hoses, his feet slipped 
 
            and he came down hitting the drive shaft of the truck with 
 
            his anus and left buttock area.  He did not immediately seek 
 
            medical attention and left with the load for Detroit, 
 
            Michigan.  While en route, he reported to the dispatcher 
 
            that he was injured.  He was required to stop frequently and 
 
            was late delivering the load.  His employer allowed him to 
 
            return to Iowa without a return load.  Upon arrival, his 
 
            wife took him to Mercy Hospital.
 
            
 
                 At Mercy Hospital, Robert was seen by general surgeon 
 
            Guy Stines, M.D.  He was diagnosed as having a fistula in 
 
            ano and an abscess.  The abscess was drained and surgical 
 
            excision of the fistula was performed.  There was an initial 
 
            diagnostic report which indicated that claimant might have a 
 
            collagen disease such as Crohn's disease, but later testing 
 
            eliminated that possibility (exhibit 6, pages 10 and 24).
 
            
 
                 Dr. Stines performed a series of four surgeries in 
 
            claimant's perirectal area.  Robert now has a scar in his 
 
            anal canal as a result of the multiple surgeries.  Dr. 
 
            Stines does not recommend further surgery (exhibit 6, page 
 
            13).
 
            
 
                 Dr. Stines has repeatedly expressed his opinion that 
 
            the treatment which he provided to claimant was a result of 
 
            the fall onto the drive shaft which claimant had described 
 
            (exhibit 6, pages 10-11 and 28-34; exhibit 1B, notes dated 
 
            October 20, 1987, June 19, 1989, and April 25, 1990).  It is 
 
            recognized that the initial history provided by claimant can 
 
            be interpreted as indicating either that he had experienced 
 
            drainage since the 1986 surgery or that the drainage 
 
            recurred following when Robert fell on April 26, 1987.  Dr. 
 
            Stines appeared to be of the understanding that the drainage 
 
            had been present ever since the 1986 surgery.  Dr. Stines 
 
            expressed his opinion of a causal connection between the 
 
            condition and the fall despite his understanding of the 
 
            history being that claimant had experienced drainage since 
 
            several months before the 1987 fall.  At hearing, claimant 
 
            denied experiencing drainage during the intervening time 
 
            following healing from the 1986 surgery and the trauma of 
 
            April 26, 1987.  Dr. Stines stated that even his 
 
            observations during surgery left him unable to tell if the 
 
            drainage had existed longer than five days.  He stated that 
 
            claimant would have had pain if he had drainage.  Dr. Stines 
 
            knew of no reason to doubt the scenario which claimant had 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            described (exhibit 1B, pages 28 and 29).  Dr. Stines agreed 
 
            that there was a possible miscommunication in the initial 
 
            medical history (exhibit 1B, pages 15, 16, 27 and 28).  It 
 
            is recognized that medical histories are not always verbatim 
 
            statements and that errors are not infrequent.  The initial 
 
            history taken in this record as found at exhibit 1C is 
 
            sufficiently vague and uncertain that it cannot be given 
 
            great weight when faced with conflicting testimony from the 
 
            claimant and the lack of any other corroborating evidence in 
 
            the record, except that which may well have resulted from 
 
            re-publication of the original erroneous entry into 
 
            subsequent reports.  The record contains no evidence other 
 
            than the medical history and what was entered in other 
 
            reports subsequent to that initial history which indicates 
 
            that claimant was experiencing any drainage subsequent to 
 
            recovery from the 1986 surgery up to April 26, 1987.  To the 
 
            contrary, Robert had worked regularly as an over-the-road 
 
            truck driver for Southwest Transportation Company, Inc.  If 
 
            a painful abscess or fistula condition had existed, it would 
 
            be expected that it would have caused him difficulty.  
 
            Robert's statement that he left Southwest Transportation 
 
            Company in part because of a lack of what he considered to 
 
            be an adequate income is corroborated by exhibit 8.  Robert 
 
            also apparently worked without difficulty for C & K 
 
            Transport until April 26, 1987.  While the 1986 abscess and 
 
            corrective surgery likely caused some permanent anatomical 
 
            change in Robert's body, there is no evidence that the 1986 
 
            surgery was unsuccessful at resolving Robert's ailment.  It 
 
            is found that Robert's testimony regarding the lack of any 
 
            drainage between recovery from the 1986 surgery and the 
 
            April 26, 1987, fall is correct.  It is further found that 
 
            Robert fell in the manner that he described at hearing.
 
            
 
                 Following the four surgeries, Robert has continued to 
 
            experience problems in the nature of pain in the rectal area 
 
            and rectal incontinence.  Dr. Stines has characterized it as 
 
            being mild incontinence, but claimant does not find it to be 
 
            mild.  Dr. Stines has assigned an impairment rating of 10-15 
 
            percent and characterized claimant as having a Class 2 
 
            impairment.  He had previously evaluated the impairment as a 
 
            Class 1 impairment (exhibit 1B, letters of February 9, 1990 
 
            and June 19, 1989).  The more recent assessment is found to 
 
            be the more accurate.  It was on December 10, 1987, that Dr. 
 
            Stines reported that claimant was able to return to work 
 
            (exhibit 1B).
 
            
 
                 Dr. Stines has provided guidance regarding claimant's 
 
            restrictions and capabilities.  His expressions are 
 
            accurately reported by vocational consultant Jeff Johnson in 
 
            exhibit 2.  The more pertinent restrictions are that 
 
            claimant's ability to stand or to walk is limited to four 
 
            hours per day and that he did not have the ability to sit 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            for more than zero hours per day.  He was characterized by 
 
            Dr. Stines as being capable of working at a job on a 
 
            full-time, eight hour per day, basis.
 
            
 
                 Robert briefly resumed truck driving for Mike Brooks 
 
            from approximately January through May of 1988.  He 
 
            discontinued that work because of problems associated with 
 
            his anal incontinence.
 
            
 
                 The assessment of this case as made by Dr. Stines is 
 
            accepted as being correct.  He is the treating physician and 
 
            a board-certified general surgeon.  His opinions have been 
 
            expressed within his field of professional expertise.  They 
 
            appear to be based upon an accurate medical history and any 
 
            inaccuracy does not appear to change the result of his 
 
            opinion.
 
            
 
                 Jeff Johnson, a qualified vocational consultant, 
 
            evaluated claimant and found him to have no loss of earning 
 
            capacity as a result of his anal incontinence.  He reached 
 
            that conclusion because the targeted jobs he identified for 
 
            claimant provided median pay in the same range as what he 
 
            perceived claimant had customarily earned as an 
 
            over-the-road truck driver.  Johnson agreed that there would 
 
            be some loss of earning capacity if the median wages for 
 
            over-the-road truck drivers were compared to the median 
 
            wages for the jobs which he had identified.
 
            
 
                 Carma Mitchell likewise evaluated claimant.  She felt 
 
            that he had a 53.6 percent loss of access to the pre-injury 
 
            jobs that had been available to him.  She also felt that he 
 
            would experience a 47.6 percent loss of actual earnings and 
 
            earning capacity as a result of the job changes which would 
 
            be necessary.  She based her opinion upon claimant having 
 
            pre-injury earnings in the range of $700-$900 per week.
 
            
 
                 Johnson provided no data concerning loss of access to 
 
            the labor market.  The findings of Carma Mitchell are found 
 
            to be more accurate than those of Johnson, though neither 
 
            was actually accurate in regard to claimant's pre-injury 
 
            level of earnings.  It is found that Robert has experienced 
 
            a loss to approximately 50 percent of the jobs that were 
 
            available to him prior to the time of this injury.  It is 
 
            further found that, if and when he is able to find work, he 
 
            would likely experience a reduction in actual earnings in 
 
            the range of 30-40 percent.  The evidence from Johnson has 
 
            not convinced the undersigned that all the targeted jobs 
 
            comply with the restrictions from Dr. Stines which are 
 
            stated in Johnson's report of September 20, 1990.
 
            
 
                 This case has been rendered unusually difficult as a 
 
            result of the balance and dizziness problems which have 
 
            progressively worsened as a result of the acoustic neuroma 
 
            which was first discovered while Robert was in the Navy.  
 
            Robert is now clearly totally disabled as a result of the 
 
            residuals of that acoustic neuroma.  Nevertheless, he was 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            not disabled by that condition at the time of the 1987 
 
            injury or on December 10, 1987, when Dr. Stines felt he had 
 
            reached maximum medical recovery.  He has required 
 
            continuing treatment for the anal condition, but that 
 
            treatment is maintenance in nature and is not expected to 
 
            have any substantial impact upon the underlying physical 
 
            ailment.  Claimant himself agrees that his anal condition 
 
            has changed little since recuperation from the last surgery 
 
            performed by Dr. Stines.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on April 26, 
 
            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. Cent. Tel. Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 It having been found that claimant fell onto a drive 
 
            shaft in the manner that he described at hearing, it is 
 
            therefore determined that he did sustain an injury which 
 
            arose out of and in the course of his employment with C & K 
 
            Transport.
 
            The claimant has the burden of proving by a preponderance of 
 
            the evidence that the injury of April 26, 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 Hosp., 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. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).
 
            
 
                 Dr. Stines clearly connects the injury with claimant's 
 
            anal disability.  The fact that the 1986 injury may have 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            somehow predisposed Robert to further injury does not alter 
 
            the result of this case.
 
            Aggravation of a preexisting condition is one form of 
 
            compensable injury.  While a claimant is not entitled to 
 
            compensation for the results of a preexisting injury or 
 
            disease, the mere existence at the time of a subsequent 
 
            injury is not a defense.  Rose v. John Deere Ottumwa Works, 
 
            247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956).  If the 
 
            claimant had a preexisting condition or disability that is 
 
            aggravated, accelerated, worsened or lighted up so that it 
 
            results in disability, claimant is entitled to recover.  
 
            Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 
 
            812, 815 (1962).
 
            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.
 
            
 
                 As a result of that injury, Robert was disabled and 
 
            under active medical treatment commencing May 1, 1987, and 
 
            running through December 10, 1987, when Dr. Stines released 
 
            him to return to work.  He is therefore entitled to recover 
 
            32 weeks of compensation for healing period.
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The 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 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Bearce v. FMC Corp., 465 N.W.2d 531 
 
            (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 
 
            1974); 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, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            218 (1979); 2 Larson Workmen's Compensation Law, sections 
 
            57.21 and 57.31.
 
            
 
                 This case is rendered difficult due to the intervening 
 
            disability associated with the acoustic neuroma condition.  
 
            The condition is one which was not aggravated by this 
 
            injury.  It is a separate intervening event for which the 
 
            employer is not liable.  It was not disabling at the time of 
 
            the injury or at the time of the conclusion of the healing 
 
            period.  It was not disabling during the months that Robert 
 
            worked for Mike Brooks Trucking in early 1988.  It did 
 
            become disabling shortly thereafter, however.
 
            
 
                 Absent the acoustic neuroma condition, it is clear that 
 
            Robert would not have been able to resume over-the-road 
 
            truck driving as such is irreconcilable with the activity 
 
            restrictions recommended by Dr. Stines.  Robert would have a 
 
            large reduction in suitable jobs.  The number of jobs which 
 
            would fit within the restrictions recommended by Dr. Stines 
 
            would be expected to be relatively small in comparison to 
 
            what had been available to Robert prior to April 26, 1987.  
 
            Robert was earning $329 per week on the average with C & K 
 
            Transport.  That same level of earnings based upon a 40-hour 
 
            week would require an hourly rate of pay of approximately 
 
            $8.22 per hour.  It is determined that, as a result of the 
 
            April 26, 1987, injury, Robert Phillips has sustained a 40 
 
            percent permanent partial disability which entitles him to 
 
            recover 200 weeks of compensation under the provisions of 
 
            section 85.34(2)(u).  Those benefits were payable commencing 
 
            December 11, 1987, and are therefore all now past due and 
 
            owing.  The fact of the intervening disability does not in 
 
            any way reduce the employer's responsibility to pay the 
 
            claimant for the disability which was proximately caused by 
 
            the April 26, 1987, injury.  It is only death which 
 
            terminates permanent partial disability compensation and 
 
            that does not terminate any amounts which would have been 
 
            due and payable prior to the date of death.  Tibbs v. 
 
            Denmark Light & Telephone Corp., 230 Iowa 1173, 300 N.W. 328 
 
            (1941); Dille v. Plainview Coal Co., 217 Iowa 827, 250 N.W. 
 
            607 (1934); Lundeen v. Quad City Construction, Thirty-fourth 
 
            Biennial Report of the Industrial Commissioner 193 (App. 
 
            Decn. 1980).
 
            
 
                 The rate of compensation is an issue in this case.  It 
 
            brings with it the issue regarding the $.04 per mile which 
 
            is alternately referred to in the record of this case as 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            "other wages @ .04" or "per diem" (exhibit 7).  It was 
 
            described by the claimant as an amount which was paid for 
 
            turning in paperwork on time.  A bona fide per diem 
 
            allowance is in some manner based upon expenses of travel.  
 
            That is most commonly achieved by either a fixed daily 
 
            allowance or a reimbursement type of system.  There does not 
 
            appear to be any rational nexus between the number of miles 
 
            driven and the amount of expenses incurred for meals and 
 
            lodging.  The expenses for a day of layover would differ 
 
            little from a day when many miles were driven.  It is 
 
            determined that the so-called "per diem allowance" was not a 
 
            bona fide allowance for meals and lodging or a reimbursement 
 
            of expenses incurred for those purposes.  It was a payment 
 
            based on the amount of work performed.  Based upon 
 
            claimant's testimony, it appears as though the $.04 per mile 
 
            was actually employed as a penalty against drivers who 
 
            failed to promptly submit their paperwork following 
 
            completion of the work.  It was no more a bonus for 
 
            performing work properly or timely than the other $.14 per 
 
            mile which was apparently paid unconditionally.  If the $.04 
 
            per mile was anything other than wages for performing the 
 
            normal work it was imposed as a penalty for improper 
 
            performance of the portion of the work dealing with the 
 
            paperwork.  Where the employer assesses a penalty for 
 
            substandard work performance, it does not transform any part 
 
            of the payment of the regular wages into a bonus when the 
 
            work is properly performed and no penalty is deducted.  As 
 
            such, the entire $.18 per mile is included as the employee's 
 
            wages in determining the rate of compensation.  Minnick v. 
 
            CRST, Inc., File No. 865832 (Arb. Decn., December 21, 1989); 
 
            Widdig v. Lincoln Sales & Serv., Inc., File No. 851716 
 
            (Arb. Decn., July 20, 1989).
 
            
 
                 Robert Phillips was employed for less than 13 weeks by 
 
            C & K Transport.  The record does not show what work was 
 
            available to other employees during the 13 weeks preceding 
 
            the week in which Robert was injured.  The appropriate 
 
            method of determining the gross weekly earnings is to divide 
 
            the total amount earned by the number of weeks actually 
 
            worked.  Hardy v. Abell-Howe Co., File No. 814126 (App. 
 
            Decn., December 21, 1990); Daggett v. Ace Lines, File No. 
 
            818879 (App. Decn., August 8, 1990); Anderson v. High Rise 
 
            Constr. Specialists, Inc., File No. 850096 (App. Decn., July 
 
            31, 1990); Barker v. City Wide Cartage, I Iowa Industrial 
 
            Commissioner Report 12, 15 (App. Decn. 1980).  In this case, 
 
            Robert Phillips was employed and working for 2 and 3/7 weeks 
 
            during which time he earned a total of $799.20.  The average 
 
            weekly wages are therefore $329.02.  With claimant being 
 
            married and entitled to five exemptions, the 1986 benefit 
 
            booklet shows his weekly rate of compensation to be $217.63 
 
            per week.
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay Robert 
 
            Phillips thirty-two (32) weeks of compensation for healing 
 
            period at the rate of two hundred seventeen and 63/100 
 
            dollars ($217.63) per week payable commencing May 1, 1987.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay Robert 
 
            Phillips two hundred (200) weeks of compensation for 
 
            permanent partial disability at the rate of two hundred 
 
            seventeen and 63/100 dollars ($217.63) per week payable 
 
            commencing December 11, 1987.
 
            
 
                 IT IS FURTHER ORDERED that all past due amounts, after 
 
            credit for prior payments in the amount of four thousand 
 
            nine hundred sixty-three and 24/100 dollars ($4,963.24), 
 
            shall be paid to claimant in a lump sum together with 
 
            interest computed from the date each payment came due until 
 
            the date of actual payment.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 IT IS FURTHER ORDERED that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1992.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Phillip Vonderhaar
 
            Attorney at Law
 
            840 Fifth Avenue
 
            Des Moines, Iowa  50309
 
            
 
            Ms. Lorraine J. May
 
            Attorney at Law
 
            4th Floor, Equitable Building
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                           5-1402.20; 5-1402.30
 
                           1803; 3001
 
                           Filed February 18, 1992
 
                           MICHAEL G. TRIER
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROBERT PHILLIPS,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 844999
 
            C & K TRANSPORT,              :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY       :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            5-1402.20; 5-1402.30
 
            
 
                 Claimant appeared credible.  His testimony was not 
 
            objectively controverted, though a medical history was 
 
            initially taken which, though vague, could have been 
 
            interpreted as conflicting with the series of events 
 
            claimant described at hearing.  It was recognized that 
 
            medical histories are not verbatim statements and are not 
 
            infallible.  The claimant's statement was corroborated by 
 
            the treating surgeon's expression that the condition could 
 
            readily result from the series of events which the claimant 
 
            described and there was no objective evidence to support the 
 
            interpretation of the medical history notes which would have 
 
            been adverse to the claimant.  Claimant's credibility which 
 
            he displayed at hearing prevailed over the unexplainable 
 
            entry in the medical records.  That entry had been repeated 
 
            in other records, but such did not enhance its importance.
 
            
 
            1803
 
            
 
                 Claimant, a career over-the-road truck driver, 
 
            sustained an injury to his rectal area which rendered him 
 
            partially incontinent.  Awarded 40 percent permanent partial 
 
            disability due to loss of lifelong career as truck driver.  
 
            Employer held not responsible for subsequent intervening 
 
            disability associated with a preexisting brain condition 
 
            which was not affected by the work injury.  Employer was not 
 
            allowed to cease permanent partial disability benefits at 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            the point when the preexisting condition became disabling 
 
            (claimant was clearly totally disabled).  The disability was 
 
            evaluated as though the other condition did not exist.
 
            
 
            3001
 
            
 
                 Trucker, who was paid $.18 per mile, of which $.04 was 
 
            paid for getting his paperwork in on time and also 
 
            alternately described in the employer's records as "per 
 
            diem" or "other wages @ .04" was awarded compensation based 
 
            upon earnings at the rate of $.18 per mile.  The $.04 was 
 
            not a premium or bonus.  It was clearly not a reimbursement 
 
            of expenses.  If anything, it was a penalty which the 
 
            employer imposed for substandard work in the nature of late 
 
            submission of trip documents.  The employer's imposition of 
 
            a penalty where work is not properly performed was held to 
 
            not make some portion of the wages which were paid when work 
 
            was properly performed a bonus.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DAVID MASELTER,               :
 
                                          :
 
                 Claimant,                :
 
                                          :         File No. 845049
 
            vs.                           :
 
                                          :      A R B I T R A T I O N
 
            WILSON FOODS CORPORATION,     :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                 Self-Insured,            :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by David 
 
            Maselter against the Second Injury Fund of Iowa based upon a 
 
            second injury that occurred on February 2, 1987, and a first 
 
            injury that occurred on April 15, 1980.  Maselter seeks 
 
            compensation for permanent partial disability.  The primary 
 
            issues to be determined are the extent of Maselter's 
 
            industrial disability and the liability of the Second Injury 
 
            Fund.
 
            
 
                 At time of hearing, claimant dismissed his claim 
 
            against his self-insured employer, Wilson Foods Corporation, 
 
            for the reason that he has received all benefits to which he 
 
            is entitled from Wilson Foods, and does not seek further 
 
            benefits from the employer.
 
            
 
                 The case was heard at Storm Lake, Iowa, on July 2, 
 
            1991.  The evidence consists of testimony from David 
 
            Maselter, Ron Liebolt and Cathy Maselter.  The record also 
 
            contains jointly offered exhibits 1 through 151 and Second 
 
            Injury Fund exhibit A.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 David Maselter is a 46-year-old married man who has 
 
            been employed by Wilson Foods Corporation since 1966.  David 
 
            dropped out of school during the tenth grade, but obtained a 
 
            GED while he was serving as a truck driver in the Army.
 
            
 
                 Over the years, David has had some back problems 
 
            connected with his employment.  On one occasion, he injured 
 
            his shoulder while off the job.  The most pertinent injuries 
 
            in this case occurred on April 15, 1980 when his left arm 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            was caught in a skinning machine and the palmar surface of 
 
            his hand and arm was literally skinned.  The second most 
 
            pertinent injury occurred on February 2, 1987 when the fork 
 
            of a forklift struck him in the left foot and nearly severed 
 
            the foot.  Both of these injuries were followed by extended 
 
            periods of medical treatment and multiple surgeries.  David 
 
            has attained a relatively good result from the treatment for 
 
            each of these injuries when the initial severity of each 
 
            trauma is considered.  He has been left with a five percent 
 
            permanent impairment of his left arm (exhibits 71 and 73).  
 
            He has a twenty percent impairment of his left foot 
 
            (exhibits 26, 27 and 36).  In making this determination, the 
 
            assessments made by the treating physicians are given 
 
            greater weight than those of any subsequent examining 
 
            physician.
 
            
 
                 David has remained employed at Wilson Foods.  The only 
 
            reduction in actual earnings which he has experienced is 
 
            related to his inability to perform at the higher bracket 
 
            levels.  From the evidence in the record, it appears as 
 
            though the difference between a bracket 12 job and a bracket 
 
            5 job is $.35 per hour.  David has persevered, despite 
 
            working with considerable discomfort.  As shown by the tests 
 
            conducted by vocational evaluator Robert W. Jones, B.S., 
 
            claimant does have a loss of use in his left hand.  He has 
 
            below average motor coordination and finger manipulation 
 
            ability.  That same testing process showed David to have 
 
            above average general academic ability and an aptitude for 
 
            further vocational or academic retraining (exhibit 3, pages 
 
            7-11).  David would like to leave Wilson and obtain work 
 
            which presents him with a reduced risk of further injury.  
 
            There is no indication in the record that David is in any 
 
            present jeopardy of losing his current employment or of 
 
            being unable to perform that employment.  His 
 
            medically-imposed activity restrictions are consistent with 
 
            his stated complaints (exhibit 3, pages 3-6; exhibit 14).
 
            
 
                 David Maselter is found to be a very credible witness.  
 
            His stated complaints are found to be an accurate 
 
            description of his physical problems and symptoms.
 
            
 
                    
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            conclusions of law
 
            
 
                 The Second Injury Fund, in the prehearing report, 
 
            disputed that claimant had sustained injuries on April 15, 
 
            1980, and February 2, 1987.  David's testimony regarding his 
 
            two injuries, their severity and traumatic onset is well 
 
            documented in the record of this case.  There is no evidence 
 
            which even suggests anything to the contrary.  It is 
 
            therefore concluded that David Maselter did sustain an 
 
            injury to his left arm on April 15, 1980, which arose out of 
 
            and in the course of his employment and that the injury was 
 
            a proximate cause of a five percent permanent partial 
 
            impairment which presently affects his left arm.
 
            
 
                 It is further concluded that David Maselter did sustain 
 
            an injury to his left foot which occurred on February 2, 
 
            1987, and which arose out of and in the course of his 
 
            employment.  That injury has proximately caused a twenty 
 
            percent permanent partial impairment of David's left foot.
 
            
 
                 This case presents a classic application of the Second 
 
            Injury Fund.  The liability of the Fund is the difference 
 
            between the currently-existing disability, evaluated 
 
            industrially, and the compensable value of the two scheduled 
 
            impairments.  Iowa Code section 85.64.  The compensable 
 
            value of the left arm injury is 12.5 weeks.  The compensable 
 
            value of the left leg injury is 30 weeks.  Iowa Code 
 
            sections 85.34(2)(m) and (n).
 
            
 
                 Disability is evaluated industrially when Second Injury 
 
            Fund liability is invoked.  Second Injury Fund v. Mich Coal 
 
            Co., 274 N.W.2d 300 (Iowa 1979).  Industrial disability was 
 
            defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
            593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore 
 
            plain that the legislature intended the term `disability' to 
 
            mean `industrial disability' or loss of earning capacity and 
 
            not a mere `functional disability' to be computed in the 
 
            terms of percentages of the total physical and mental 
 
            ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The 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.  Bearce v. FMC Corp., 465 N.W.2d 531 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 
 
            1974); 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, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            218 (1979); 2 Larson Workmen's Compensation Law, sections 
 
            57.21 and 57.31.
 
            
 
                 According to the outcome of the recent case Bearce v. 
 
            FMC Corp., 465 N.W.2d 531 (Iowa 1991), changes in actual 
 
            earnings are a very pertinent factor of industrial 
 
            disability.  Actual earnings are not, however, the only 
 
            consideration.  In this case, David's earnings have been 
 
            reduced very little.  His injuries have limited his ability 
 
            to perform some jobs with his employer.  He has limited 
 
            dexterity with his left hand and limited use of his left 
 
            foot.  When all pertinent factors of industrial disability 
 
            are considered, it is concluded that David L. Maselter 
 
            currently has a fifteen percent permanent partial disability 
 
            when the same is evaluated industrially.
 
            
 
                 While it is certainly prudent for David to obtain 
 
            training and obtain work which provides him with less chance 
 
            of further injury, that intention is not a factor to be 
 
            considered when determining the extent of disability caused 
 
            by injury.
 
            
 
                 A fifteen percent industrial disability provides an 
 
            entitlement to 75 weeks of compensation.  The compensable 
 
            value of the two scheduled injuries has been determined to 
 
            be 42.5 weeks.  The Second Injury Fund of Iowa is therefore 
 
            responsible for paying 32.5 weeks of compensation to David.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that the Second Injury Fund of 
 
            Iowa pay David Maselter thirty-two point five (32.5) weeks 
 
            of compensation for permanent partial disability at the 
 
            stipulated rate of two hundred seventy and 08/100 dollars 
 
            ($270.08) per week payable commencing February 1, 1990.  The 
 
            entire amount thereof is past due and shall be paid in a 
 
            lump sum.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against the Second Injury Fund of Iowa pursuant to 
 
            rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Steve Hamilton
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Attorney at Law
 
            606 Ontario Street
 
            P.O. Box 188
 
            Storm Lake, Iowa  50588
 
            
 
            Mr. David L. Sayre
 
            Attorney at Law
 
            233 Pine Street
 
            P.O. Box 535
 
            Cherokee, Iowa  51012
 
            
 
            Mr. Charles S. Lavorato
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Building
 
            Des Moines, Iowa  50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803; 5-3202
 
                           Filed November 6, 1991
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            DAVID MASELTER,     :
 
                      :
 
                 Claimant, :
 
                      :         File No. 845049
 
            vs.       :
 
                      :      A R B I T R A T I O N
 
            WILSON FOODS CORPORATION,     :
 
                      :         D E C I S I O N
 
                 Employer, :
 
                 Self-Insured,  :
 
                      :
 
            and       :
 
                      :
 
            SECOND INJURY FUND OF IOWA,   :
 
                      :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            5-1803; 5-3202
 
            Claimant, with a five percent impairment of one arm and a 
 
            twenty percent impairment of a foot, awarded fifteen percent 
 
            permanent partial disability resulting in 32.5 weeks of 
 
            compensation from the Fund.  The record showed an actual 
 
            loss of earnings of only approximately $.35 per hour based 
 
            upon a wage rate of approximately $9.00 per hour.  The 
 
            claimant's desire to obtain an award in order to finance 
 
            further training to allow him to leave packinghouse work was 
 
            held not to be a factor of industrial disability.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RICHARD D. MILLER,            :
 
                                          :
 
                 Claimant,                :
 
                                          :    File Nos. 874539, 845155,
 
            vs.                           :              814636 & 737315
 
                                          :
 
            NATIONAL BY-PRODUCTS, INC.,   :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a combined proceeding in arbitration brought by 
 
            Richard D. Miller, claimant, against National By-Products, 
 
            Inc., employer (hereinafter referred to as National), and 
 
            Liberty Mutual Insurance Company, insurance carrier, defen
 
            dants, for workers' compensation benefits as a result of 
 
            alleged injuries on June 13, 1983 and December 21, 1987.  On 
 
            March 29, 1990, a hearing was held on claimant's petitions 
 
            filed for both of these injuries and the matter was consid
 
            ered fully submitted at the close of this hearing.
 
            
 
                 It should be noted that claimant's petitions in two 
 
            other cases, namely:  814636 (DOI 1-22-86) and 845155 (DOI 
 
            2-9-87) were dismissed without prejudice by the undersigned 
 
            at the time of the hearing on March 29, 1990, upon the 
 
            request of claimant without objection from defendants.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  Oral testimony and written exhibits were received 
 
            during the hearing from the parties.  The exhibits offered 
 
            into the evidence are listed in the prehearing report.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  An employee-employer relationship existed between 
 
            claimant and National at the time of the alleged injuries.
 
            
 
                 2.  On June 13, 1983, claimant received an injury which 
 
            arose out of and in the course of employment with National.
 
            
 
                 3.  Claimant's entitlement to temporary total disabil
 
            ity or healing period benefits for the injury of June 13, 
 
            1983, have been paid by defendants.  Claimant is seeking 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            temporary total disability or healing period benefits as a 
 
            result of the alleged injury on December 21, 1987, from 
 
            December 24, 1987 through January 11, 1988, and defendants 
 
            agree that claimant was not working during this period of 
 
            time.
 
            
 
                 4.  If the injuries are found to have caused permanent 
 
            disability, the type of disability is an industrial disabil
 
            ity to the body as a whole.
 
            
 
                 5.  If permanent disability benefits are awarded as a 
 
            result of the June 13, 1983 injury, they shall commence on 
 
            August 20, 1984.
 
            
 
                 6.  With reference to the computation of claimant's 
 
            rate of weekly compensation for either injury involved in 
 
            this case, claimant is entitled to marital status and three 
 
            exemptions.
 
            
 
                 7.  With reference to the medical bills for which 
 
            claimant is requesting in this proceeding, all of the bills 
 
            relate to the alleged injury of December 21, 1987.  It was 
 
            agreed that the providers would testify that they were fair 
 
            and reasonable and defendants are not offering contrary evi
 
            dence.  Also, it was agreed that they are causally connected 
 
            to the medical condition upon which the claim is based, but 
 
            that the issue of their causal connection to a work injury 
 
            remained at issue.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                   I.  Whether claimant received an injury on December 
 
            21, 1987, arising out of and in the course of employment;
 
            
 
                  II.  The extent of claimant's entitlement to disabil
 
            ity benefits for all of the alleged injuries including the 
 
            rate of weekly compensation; and,
 
            
 
                 III.  The extent of claimant's entitlement to medical 
 
            benefits as a result of the December 21, 1987 injury.
 
            
 
                     
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            findings of fact
 
            
 
                 Having heard the testimony and considered all the evi
 
            dence, the undersigned deputy industrial commissioner finds 
 
            as follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants place claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of disability.  
 
            From his demeanor while testifying, claimant is found 
 
            credible.
 
            
 
                 Claimant has been employed by National for over 20 
 
            years and continues to work for National at the present 
 
            time.  Claimant's entire employment has been in a plant 
 
            operated by National in Des Moines, Iowa which processes 
 
            dead animal carcasses.  Initially, claimant worked loading 
 
            hides into box cars.  This was extremely heavy work as the 
 
            hides weighed from 40 to 160 pounds each.  After a couple of 
 
            years, claimant became a driver/laborer.  In this job, 
 
            claimant drove a semi truck to the unloading dock and then 
 
            unloaded the beef and horse carcasses from the semi truck 
 
            trailer.  This would require dragging the carcasses a short 
 
            distance and then hooking the legs of the carcasses onto a 
 
            winch which then pulled the carcass from the truck to the 
 
            processing rail.  Claimant would then be required to clean 
 
            the truck in the unloading area, shoveling any portion of 
 
            the animals that remained in the area.  This again was very 
 
            heaving work as full size animals where involved.  Over the 
 
            years, however, this job has been made somewhat easier by 
 
            automation.  Now the trucks are mechanically lifted to dump 
 
            the carcasses out onto the floor.  Since the work injury, in 
 
            this case, claimant no longer drives the truck but continues 
 
            to hook the animals to the winch to place them on the rail.  
 
            Claimant also continues to clean up the area.
 
            
 
                 On or about June 13, 1983, claimant injured his low 
 
            back while assisting a maintenance person at National in 
 
            moving a heavy piece of equipment using poles.  Claimant had 
 
            no chronic back problems before that time.  The injury con
 
            sisted of a ruptured disc at the L4/5 level of claimant's 
 
            spine.  After conservative measures failed to alleviate the 
 
            claimant's pain, the treating orthopedic surgeon, Scott 
 
            Neff, M.D., recommended back surgery.  Claimant sought and 
 
            received a second opinion from another orthopedic surgeon, 
 
            Marshall Flapan, M.D.  Dr. Flapan recommended less evasive 
 
            surgery called chymopapain injection.  Claimant choose the 
 
            injection procedure and following the procedure and recov
 
            ery, claimant was returned to work but not to the truck 
 
            driving job.  Claimant testified that the driving bothers 
 
            his back from the normal amount of bouncing around inside 
 
            the cab.  Claimant continues to unload trailers, clean 
 
            rooms, shovel debris and perform various cleaning duties.
 
            
 
                 Claimant fractured the scapulae of his right shoulder 
 
            in 1982.  Claimant recovered from this injury after six 
 
            weeks without permanent impairment or loss of function.  
 
            Claimant also had a neck and left shoulder injury after a 
 
            motorcycle accident in 1980.  Claimant has recovered from 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            this injury without impairment as well.  Claimant also had 
 
            other injuries to his arms and hands over the years but 
 
            other than his low back, there are no prior injuries or con
 
            ditions which affected his ability to work.  Claimant's tes
 
            timony with reference to these matters was uncontroverted.
 
            
 
                 On December 21, 1987, claimant said that while perform
 
            ing his work at National, the muscle spasms in his back 
 
            increased and he was sent to the doctor.  Claimant said that 
 
            nothing in particular happened and he returned to the same 
 
            condition as before the injury.  Claimant continues to have 
 
            temporary flare-ups at the present time.  Claimant was off 
 
            work during recovery from this injury from December 24, 1987 
 
            through January 11, 1988.
 
            
 
                 Claimant's condition has been stable since his return 
 
            to work after the June 13, 1983 injury except for occasional 
 
            flare-ups.  The injection procedure alleviated right leg 
 
            pain but physical activity continues to increase claimant's 
 
            low back spasms and pain.  Claimant experiences low back 
 
            pain and stiffness after climbing stairs, prolonged stooping 
 
            or bending, repetitive shoveling, and prolonged walking on 
 
            rough terrain and prolonged heavy lifting.
 
            
 
                 As a result of the work injury of June 13, 1983, 
 
            claimant has suffered a five percent permanent partial 
 
            impairment to the body as a whole.  Although a licensed 
 
            physical therapist opined that claimant has a greater perma
 
            nent partial impairment, the greater weight was given to the 
 
            opinions of the treating orthopedic surgeon.  Claimant 
 
            failed to show by a preponderance of the evidence that the 
 
            injury of December 21, 1987, caused additional permanent 
 
            partial impairment.  This injury only temporarily aggravated 
 
            the effects of the earlier injury of June 13, 1983.
 
            
 
                 As a result of the work injury of June 13, 1983, 
 
            claimant has suffered a 20 percent loss of earning capacity.  
 
            Claimant's medical condition before the work injury was 
 
            excellent and he had no functional impairments or ascertain
 
            able disabilities.  Claimant was able to fully perform phys
 
            ical tasks involving heavy lifting; repetitive lifting; 
 
            bending; twisting and stooping; and, prolonged walking and 
 
            climbing.  Due to his physical limitations, claimant's medi
 
            cal condition prevents him from returning to his former work 
 
            as a truck driver or any other work which requires repeated 
 
            and prolonged heavy lifting.  Claimant is 44 years of age.  
 
            Claimant has a high school diploma but was a special educa
 
            tion student while in school.  Due to reading and writing 
 
            difficulties, claimant has very low potential for formal 
 
            retraining.  Claimant's past employment primarily consists 
 
            of heavy manual labor.  Claimant's disability restricts his 
 
            access to manual labor jobs, which are the type of jobs for 
 
            which he is best suited given his education and experienced 
 
            background.  However, vocational rehabilitation is not nec
 
            essary in this case.  National has accommodated for 
 
            claimant's disability.  Claimant has lost only $.07 an hour 
 
            in wages from his inability to return to the truck driving 
 
            portion of his job.  Claimant has potential at National to 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            advance but some of the higher paying jobs are not available 
 
            to him due to the physical requirements of the work.  
 
            Claimant has been able to work very long hours in his cur
 
            rent job and his loss of earnings from his disability is 
 
            minimal.  What loss of earnings that has occurred since the 
 
            work injury is largely the result of negotiated wage reduc
 
            tions pursuant to collective bargaining agreements.
 
            
 
                 In the 13 weeks prior to the injury of June 13, 1983, 
 
            claimant earned a total of $6,068.54 or an average of gross 
 
            weekly rate of $466.81 (calculating all hours worked at the 
 
            straight time rate of $9.25 an hour).  In the 13 weeks 
 
            before the injury of December 21, 1987, claimant earned a 
 
            total of $4,749.78 (excluding the week of November 8, 1987 
 
            as unrepresented as claimant only worked eight hours) or an 
 
            average gross weekly rate of $365.37 (again using the 
 
            straight time rate of $8.58 per hour for all hours worked).
 
            
 
                 The medical expenses listed on page 1 of joint exhibit 
 
            2 are fair and reasonable expenses for reasonable and neces
 
            sary treatment of the injury of December 21, 1987.
 
            
 
                                conclusions of law
 
            
 
                   I.  Claimant has the burden of proving by a prepon
 
            derance 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 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 
 
            therein.
 
            
 
                 In the case sub judice, claimant established by a pre
 
            ponderance of the evidence that the work injury of December 
 
            21, 1987, arose out of and in the course of employment 
 
            although it was only a temporary aggravation of a preexist
 
            ing condition.
 
            
 
                  II.  Claimant must establish by a preponderance of the 
 
            evidence the extent of weekly benefits for permanent dis
 
            ability to which claimant is entitled.  As the claimant has 
 
            shown that the work injury was a cause of a permanent physi
 
            cal impairment or limitation upon activity involving the 
 
            body as a whole, the degree of permanent disability must be 
 
            measured pursuant to Iowa Code section 85.34(2)(u).  
 
            However, unlike scheduled member disabilities, the degree of 
 
            disability under this provision is not measured solely by 
 
            the extent of a functional impairment or loss of use of a 
 
            body member.  A disability to the body as a whole or an 
 
            "industrial disability" is a loss of earning capacity 
 
            resulting from the work injury.  Diederich v. Tri-City 
 
            Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A 
 
            physical impairment or restriction on work activity may or 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            may not result in such a loss of earning capacity.  The 
 
            extent to which a work injury and a resulting medical condi
 
            tion has resulted in an industrial disability is determined 
 
            from examination of several factors.  These factors include 
 
            the employee's medical condition prior to the injury, imme
 
            diately after the injury and presently; the situs of the 
 
            injury, its severity and the length of healing period; the 
 
            work experience of the employee prior to the injury, after 
 
            the injury and potential for rehabilitation; the employee's 
 
            qualifications intellectually, emotionally and physically; 
 
            earnings prior and subsequent to the injury; age; education; 
 
            motivation; functional impairment as a result of the injury; 
 
            and inability because of the injury to engage in employment 
 
            for which the employee is fitted.  Loss of earnings caused 
 
            by a job transfer for reasons related to the injury is also 
 
            relevant.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            1121, 125 N.W.2d 251, 257 (1963).  See Peterson v. Truck 
 
            Haven Cafe, Inc., (Appeal Decision, February 28, l985).
 
            
 
                 In the case sub judice, it was found that claimant suf
 
            fered a 20 percent loss of earning capacity as a result of 
 
            the work injury.  Based upon such a finding, claimant is 
 
            entitled as a matter of law to 100 weeks of permanent par
 
            tial disability benefits under Iowa Code section 85.34(2)(u) 
 
            which is 20 percent of 500 weeks, the maximum allowable for 
 
            an injury to the body as a whole in that subsection.
 
            
 
                 Claimant is entitled to weekly benefits for temporary 
 
            total disability under Iowa Code section 85.33(1) from the 
 
            date of injury of December 21, 1987, until claimant returns 
 
            to work or is medically capable of returning to substan
 
            tially similar work to the work he was performing at the 
 
            time of the injury.  Claimant will be awarded temporary 
 
            total disability benefits for the period of time he was off 
 
            work pursuant to the stipulation in the prehearing report.
 
            
 
                 The parties' dispute as to the rate of compensation 
 
            centers around the calculation of his gross wages.  As 
 
            claimant's hours vary greatly from week to week, the previ
 
            ous 13 weeks must be utilized to calculate the rate.  
 
            However, this agency has consistently held that weeks which 
 
            contain absences due to illness, vacation or other causes 
 
            are not representative weeks and should be excluded from the 
 
            calculations.  Lewis v. Aalf's Manufacturing Co., I Iowa 
 
            Indus. Comm'r. Rpt. 206 (Appeal Decision 1980).  In addi
 
            tion, claimant was given more hours on a regular basis 
 
            including overtime pay.  However, overtime pay is likewise 
 
            not included in the rate calculation, only overtime hours at 
 
            the straight time pay rate.  Division of Industrial Services 
 
            Rule 343-8.2.  It was found that claimant's gross weekly 
 
            earnings was $466.81 for the June 13, 1983 injury and 
 
            $365.37 for the December 21, 1987 injury.  Using the commis
 
            sioner's rate booklets for these injuries and the stipula
 
            tions with reference to marital status and exemptions, the 
 
            rate of compensation is $283.34 for the June 13, 1983 injury 
 
            and $235.94 for the December 21, 1987 injury.
 
            
 
                 III.  Pursuant to Iowa Code section 85.27, claimant is 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of a work injury.  However, claimant is enti
 
            tled to an order of reimbursement only if he paid those 
 
            expenses.  Otherwise, claimant is entitled to only an order 
 
            directing the responsible defendants to make such payments.  
 
            See Krohn v. State, 420 N.W.2d 463 (Iowa 1988).
 
            
 
                 In the case at bar, the parties stipulated that the 
 
            requested expenses were causally connected to the low back 
 
            condition.  The dispute centered around whether or not the 
 
            injury occurred or not.  As such an injury was found, the 
 
            expenses requested will be awarded.
 
            
 
                                      order
 
            
 
                 1.  Defendants shall pay to claimant one hundred (100) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of two hundred eighty-three and 34/l00 dollars ($283.34) per 
 
            week from August 20, 1984.
 
            
 
                 2.  Defendants shall pay to claimant temporary total 
 
            disability benefits from December 24, 1987 through January 
 
            11, 1988, at the rate of two hundred thirty-five and 94/l00 
 
            dollars ($235.94) per week.
 
            
 
                 3.  Defendants shall pay the medical expenses listed on 
 
            page 1 of exhibit 2 which totals three hundred two and 
 
            15/l00 dollars ($302.15).  Claimant shall be reimbursed for 
 
            any of these expenses paid by him.  Otherwise, defendants 
 
            shall pay the provider directly along with any lawful late 
 
            payment penalties imposed upon the account by the provider.
 
            
 
                 4.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for 
 
            benefits previously paid.
 
            
 
                 5.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 6.  Defendants shall pay the cost of this action pur
 
            suant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 7.  Defendants shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            Division of Industrial Services Rule 343-3.1.
 
            
 
            
 
                 Signed and filed this ____ day of July, 1990.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James R. Lawyer
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Attorney at Law
 
            West Towers Office
 
            1200 35th St, STE 500
 
            West Des Moines  IA  50265
 
            
 
            Mr. W. C. Hoffman
 
            Mr. Richard Book
 
            Attorneys at Law
 
            500 Liberty Bldg
 
            Des Moines  IA  50309