BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DIANE HICKMAN,
 
         
 
              Claimant,                             File No. 846909
 
         
 
         vs.                                          A P P E A L
 
         
 
         CONTINENTAL BAKING COMPANY,                D E C I S I O N
 
         
 
         and
 
                                                       F I L E D
 
         AETNA CASUALTY & SURETY
 
         COMPANY,                                     JUL 27 1989
 
         
 
              Insurance Carrier,                  INDUSTRIAL SERVICES
 
              Defendants.
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendants appeal from an arbitration decision granting 
 
         claimant healing period benefits, permanent partial disability 
 
         benefits and medical costs as a result of an alleged injury on 
 
         February 19, 1987.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing, claimant's exhibits 1 through 16 and 
 
         defendants' exhibit A.
 
         
 
                                      ISSUES
 
         
 
              The issues stated by the defendants' appeal notice are as 
 
         follows:
 
         
 
              1.  Claimant failed to establish that her hernia condition 
 
         arose out of and in the course of her employment activities.
 
         
 
              2.  The evidence adduced at the time of trial failed to 
 
         support a conclusion that claimant sustained a permanent partial 
 
         disability in the amount of 15 percent of the body as a whole.
 
         
 
              An order by the industrial commissioner directed that the 
 
         defendants' brief not be considered on appeal.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be set forth herein.
 
              
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and the evidence.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                     ANALYSIS
 
         
 
              The analysis of the evidence in conjunction with the law is 
 
         adopted.
 
         
 
                                 FINDINGS OF FACT
 
                                                                                                                    
 
         
 
              1.  On February 19, 1987, while pulling carts which weighed 
 
         approximately 200-300 pounds in the course of her employment with 
 
         Continental Baking Company, claimant experienced pain in her 
 
         groin.
 
              
 
              2.  Claimant had had pelvic pain prior to February 19, 1987 
 
         and had treated with Glen Krug, D.O., for irregular heavy vaginal 
 
         bleeding and chronic pelvic pain prior to that date.
 
              
 
              3.  Claimant's chronic pelvic pain, dysfunctional uterine 
 
         bleeding and irregular menses had been unresponsive to D & C and 
 
         many cycles of antibiotic therapy.
 
              
 
              4.  John T. Johnson, D.O., diagnosed right inguinal hernia 
 
         after the February 19, 1987 incident.
 
              
 
              5.  On April 24, 1987, claimant underwent both a vaginal 
 
         hysterectomy and repair of the right inguinal hernia.
 
              
 
              6.  On May 7, 1987, claimant treated with Raymond W. Dasso, 
 
         M.D., for complaints of back pain.
 
              
 
              7.  Claimant did not indicate a history of injury or 
 
         accident and did not know the cause of her back pain.
 
              
 
              8.  Claimant returned to work on July 13, 1987.
 
              
 
              9.  Claimant continued to experience abdominal pain after 
 
         her work return.
 
              
 
              10. On August 19, 1987, Dr. Johnson restricted claimant to 
 
         permanent light duty with no lifting, pulling or pushing.
 
              
 
              11. Dr. Johnson's restrictions would be consistent with 
 
         restrictions found after hernia repair surgery.
 
              
 
              12. Dr. Johnson's restrictions would also be consistent with 
 
         at least temporary restrictions after hysterectomy.
 
              
 
              13. Claimant's work incident as described is consistent with 
 
         activity which could produce hernia.
 
              
 
              14. Claimant's work as described did not produce her 
 
         gynecological problems.
 
              
 
              15. Claimant was 35 years old at the time of the arbitration 
 
         hearing.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              16. Claimant has a five percent permanent partial impairment 
 
         of the body as a whole.
 
              
 
              17. The impairment cannot be apportioned between claimant's 
 
         gynecological problem and her hernia and its sequela, but is not 
 
         inconsistent with impairment subsequent to hernia and hernia 
 
         repair.
 
              
 
              18. Claimant did not produce evidence concerning her prior 
 
         education or work experience.
 
              
 
              19. Claimant apparently has generally worked in heavy 
 
         industry.
 
              
 
              20. Claimant earned $10.20 per hour with Continental Baking.
 
              
 
              21. Claimant was discharged after Dr. Johnson placed his 
 
         permanent light duty restrictions on the grounds that no jobs 
 
         were available within her restrictions.
 
              
 
              22. Claimant is well-motivated to work.
 
              
 
              23. Claimant was working at Iowa Beef Processors at time of 
 
         hearing and earning $6.00 per hour.
 
              
 
              24. Claimant's work for Continental Baking could be 
 
         classified as heavy industrial labor.
 
              
 
              25. Claimant's current position could also be classified as 
 
         heavy industrial labor.
 
              
 
              26. Claimant's current position is of a lighter nature than 
 
         her Continental Baking position and apparently is within 
 
         claimant's restrictions.
 
              
 
              27. Claimant's restrictions likely preclude her from certain 
 
         heavy industrial labor employment.
 
              
 
              28. Claimant apparently has not sought vocational 
 
         rehabilitation.
 
              
 
              29. The record does not indicate whether claimant would be a 
 
         good candidate for such efforts.
 
              
 
              30. C. L. Peterson, D.O.'s examination of claimant on March 
 
         17, 1987 related to her work injury.
 
              
 
              31. Dr. Johnson's examinations and treatment of claimant on 
 
         June 22, 1987, July 30, 1987, August 13, 1987, August 25, 1987 
 
         and August 27, 1987 related to her work injury.
 
              
 
              32. Y. M. S. Bushan, M.D.'s treatment of claimant of August 
 
         24, 1987 related to her work injury.
 
              
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established an injury which arose out of and in 
 
         the course of her employment by way of her right inguinal hernia 
 
         on February 19, 1987.
 
         
 
              Claimant has established a causal relationship between that 
 
         injury and claimed disability as such disability relates to her 
 
         right inguinal hernia.
 
         
 
              Claimant is entitled to permanent partial disability in the 
 
         amount of 15 percent of the body as a whole as a result of her 
 
         February 19, 1987 injury.
 
         
 
              Claimant is entitled to payment of medical costs with C. L. 
 
         Peterson, D.O.; John Johnson, D.O.; and Y. M. S. Bushan, M.D., as 
 
         outlined in the above applicable law and analysis.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay claimant healing period benefits at the 
 
         rate of two hundred seventy-one and 88/100 dollars ($271.88) per 
 
         week from April 24, 1987 to July 13, 1987.
 
         
 
              That defendants pay claimant permanent partial disability 
 
         benefits at the rate of two hundred seventy-one and 88/100 
 
         dollars ($271.88) per week for seventy-five (75) weeks with such 
 
         payments to commence on July 13, 1987.
 
         
 
              That defendants pay claimant medical costs with C. L. 
 
         Peterson, D.O., in the amount of twenty-three and 00/100 dollars 
 
         ($23.00); with Y. M. S. Bushan, M.D., in the amount of 
 
         twenty-five and 00/100 dollars ($25.00); and, with John Johnson, 
 
         D.O., in the amount of three hundred forty-two and 00/100 dollars 
 
         ($342.00).
 
         
 
              That defendants pay accrued amounts in a lump sum.
 
         
 
              That defendants pay interest pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That claimant and defendants bear their own costs of this 
 
         proceeding as stipulated in the prehearing report.
 
         
 
              That defendants bear the costs of transcription of the 
 
         arbitration hearing.
 
         
 
              That defendants file claim activity reports as required by 
 
         the agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Signed and filed this 27th day of July, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                            DAVID E. LINQUIST
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Peter M. Soble
 
         Attorney at Law
 
         505 Plaza Office Building
 
         Rock Island, Illinois  61201
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         Ste. 102, Executive Square
 
         400 Main Street
 
         Davenport, Iowa  52801-1550
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                                                       
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                            1400,1402,1402.30
 
                                            1802-1803
 
                                            Filed July 27, 1989
 
                                            DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DIANE HICKMAN,
 
         
 
              Claimant,
 
                                                    File No. 846909
 
         vs.
 
                                                      A P P E A L
 
         CONTINENTAL BAKING COMPANY,
 
                                                    D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         AETNA CASUALTY & SURETY
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1400,1402,1402.30,1802-1803
 
         
 
              The deputy's finding that claimant's hysterectomy did not 
 
         arise out of the employment but that the hernia did was affirmed 
 
         on appeal.  Claimant was granted permanent partial disability 
 
         benefits and healing period benefits for the hernia injury but 
 
         not the hysterectomy.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                                                                                    
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                                                       
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DIANE HICKMAN,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                 File No. 846909
 
         CONTINENTAL BAKING COMPANY,
 
                                              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.
 
         
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Diane Hickman, against her employer, Continental Baking Company, 
 
         and its insurance carrier, Aetna Casualty & Surety Company, to 
 
         recover benefits under the Iowa WorkersO Compensation Act as a 
 
         result of an alleged injury of February 19, 1987.  This matter 
 
         came on for hearing before the undersigned deputy industrial 
 
         commissioner at Davenport, Iowa on February 23, 1988.  A first 
 
         report of injury was filed on June 15, 1987.
 
         
 
              The record in this proceeding consists of the testimony of 
 
         claimant, of claimant's exhibits 1 through 16 and of defendants' 
 
         exhibit A.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the pre-hearing report, the parties stipulated 
 
         that claimant's rate of weekly compensation, in the event of an 
 
         award, is $271.88.  They further stipulated that claimant's 
 
         commencement date for any permanent partial disability award 
 
         would be July 13, 1987 and that claimantOs medical costs were 
 
         fair and reasonable.  The parties agreed that each party would 
 
         bear its own costs and that a $150.00 expense outlined in exhibit 
 
         15 should properly be deducted and treated as an expense of 
 
         claimant.
 
         
 
              The issues remaining for resolution are:
 
         
 
              1.  Whether claimant received an injury which arose out of 
 

 
         
 
         
 
         
 
         HICKMAN V. CONTINENTAL BAKING COMPANY
 
         PAGE   2
 
         
 
         
 
         and in the course of her employment;
 
         
 
              2.  Whether a causal relationship exists between the 
 
         alleged injury and the claimed disability;
 
         
 
              3.  Whether claimant is entitled to benefits and the 
 
         nature and extent of any benefit entitlement; and,
 
         
 
              4.  Whether claimant is entitled to payment of certain 
 
         medical costs as constituting authorized care under section 
 
         85.27.
 
         
 
              The parties stipulated that, if claimant were entitled to 
 
         either healing period or temporary total disability, any 
 
         liability of defendants would be from April 24, 1987 to July 
 
         13, 1987.
 
         
 
                          REVIEW OF THE EVIDENCE
 
         
 
              On direct examination, claimant testified that she is 
 
         single, age 35 and has three children.  She indicated she began 
 
         working for Continental Baking Company in August, 1983 and earned 
 
         $10.20 per hour.  She reported that, on February 19, 1987, she 
 
         experienced pain in her groin while pulling carts which were 
 
         approximately five feet, five inches tail and which weighed 
 
         200-300 pounds.  Claimant reported that, on the following day, 
 
         her family physician, John T. Johnson, D.O., examined her and 
 
         advised her that she had a hernia.  Claimant stated she reported 
 
         that information to her foreman.  She saw the company physician, 
 
         C. L. Peterson, D.O.  Dr. Peterson referred her to Glen Krug, 
 
         D.O., a gynecologist.  On April 24, 1987, claimant had a 
 
         hysterectomy and hernia repair with Dr. Krug and with Y. M. S. 
 
         Bushan, M.D., performing the respective surgeries and with Dr. 
 
         Johnson assisting.  Raymond W. Dasso, M.D., treated claimant for 
 
         a back condition which she testified subsequently resolved.
 
         
 
             Claimant returned to work on July 13, 1987.  She testified 
 
         that she then had groin pain at her surgical site as well as low 
 
         back pain.  Claimant characterized pain from her hysterectomy as 
 
         in the center of her pelvic area and pain from her hernia as on 
 
         the right side of her groin.  Claimant testified that Dr. Johnson 
 
         placed her on permanent light duty work.  She reported that, when 
 
         she advised Continental of those restrictions, she was discharged 
 
         as unable to perform her employment.  Claimant subsequently moved 
 
         to Omaha, Nebraska where she found employment with Iowa Beef 
 
         Processors, at which she earns $6.00 per hour.  Claimant 
 
         testified she continues to have pain with heavy lifting and 
 
         pulling and has difficulty shampooing carpet, moving her 
 
         television and with general housecleaning.  She reported that she 
 

 
         
 
         
 
         
 
         HICKMAN V. CONTINENTAL BAKING COMPANY
 
         PAGE   3
 
         
 
         
 
         can no longer jog or play baseball.
 
         
 
              On cross-examination, claimant denied that she had ever had 
 
         pain in her groin area prior to February 19, 1987, but agreed 
 
         that she had had pelvic pain with what she characterized as "her 
 
         period" three or four times per month with the painful condition 
 
         remaining for from three to five days.  She agreed she had 
 
         treated with Dr. Krug for those problems prior to February 19, 
 
         1987, but denied that she had considered Ofemale" surgery prior 
 
         to February 19, 1987.
 
         
 
              Claimant stated that, when she experienced pain on February 
 
         19, 1987, she was pulling backwards on a four-wheel cart stacked 
 
         with baking pans.  Claimant stated that she gave Drs. Krug, 
 
         Johnson and Peterson the history to which she testified relative 
 
         to pulling on the cart.  She agreed that a May 7, 1987 report of 
 
         Dr. Dasso contains no history of injury or accident, but stated 
 
         that she had told Dr. Dasso about the work performed.
 
         
 
              Claimant testified that her current pain is localized on the 
 
         right side of the abdomen.  She denied having current back pain.  
 
         Claimant agreed that the decision to perform her hysterectomy was 
 
         made after drug and other conservative therapy did not control 
 
         her bleeding.  She agreed that her convalescence was the result 
 
         of both her hernia repair and her hysterectomy.  Claimant agreed 
 
         that Dr. Johnson imposed her light duty restriction and that Drs.  
 
         Dasso, Krug and Bushan had not imposed any written restrictions 
 
         on her work.  Claimant saw Barry Lake Fischer, M.D., for 
 
         examination and permanent partial impairment rating only.
 
         
 
              Claimant denied that charges outlined on claimant's exhibits 
 
         9 through 12 relate to her gynecological problems.  Claimant 
 
         reported that she saw Dr. Peterson only at the company's request. 
 
          She reported that Dr. Johnson had treated her for both her 
 
         hernia and her hysterectomy and that only Dr. Johnson examined 
 
         the inguinal area.  Upon further cross-examination, claimant 
 
         agreed that Dr. Bushan had also examined the inguinal area.
 
         
 
              On October 1, 1987, Dr. Fischer diagnosed claimant as 
 
         sustaining a strain injury to the right inguinal urea that 
 
         resulted in traumatic industrial right inguinal hernia requiring 
 
         operative intervention.  Dr. Fischer opined that, based upon his 
 
         findings on examination, claimant had sustained an injury 
 
         resulting in permanent partial impairment of five percent of the 
 
         body as a whole due to the permanent restriction her treating 
 
         physician had imposed.  On examination, Dr. Fischer had found a 
 
         four-inch oblique area of operative scarring over the right 
 
         inguinal area; some tenderness to palpation and pressure over the 
 
         right inguinal area; no palpable masses; and, no palpable 
 
         organomegaly.
 
         
 
              On August 19, 1987, John T. Johnson, D.O., reported that, 
 
         after returning to work in July, claimant, when once again seen, 
 
         had complaints of abdominal pain while working.  He then 
 
         restricted her to permanent light duty with no lifting, pulling 
 
         or pushing.
 
         
 
              On June 17, 1987, Dr. Johnson opined that claimant's hernia 
 
         was a work-related injury from pushing and pulling heavy carts at 
 

 
         
 
         
 
         
 
         HICKMAN V. CONTINENTAL BAKING COMPANY
 
         PAGE   4
 
         
 
         
 
         work.  He further opined that claimant's gynecological problems 
 
         resulting in a hysterectomy were also work-related by her 
 
         lifting, pulling and pushing.
 
         
 
              An office note, identified on the exhibit list as that of 
 
         Dr. Peterson dated March 17, 1987, reports that claimant has 
 
         subjective complaints of pain in the right side which increases 
 
         with lifting and pulling and which has been present for one year. 
 
          The assessment is of a fibroid uterus and referral to Dr. Krug 
 
         is recommended.
 
         
 
              On May 8, 1987, Dr. Krug stated that claimant underwent a 
 
         vaginal hysterectomy on April 24, 1987 for irregular heavy 
 
         vaginal bleeding and chronic pelvic pain.  Her pathology report 
 
         showed adenomyosis uteri.  Claimant also had uterine prolapse.  
 
         The doctor did not believe that claimant's job or job performance 
 
         had any effect on those conditions or on claimant's bleeding.
 
         
 
              A Davenport Medical Center record for an admission of April 
 
         27, 1987 identifying Dr. Krug as the attending physician, 
 
         indicates that claimant was admitted for treatment of chronic 
 
         pelvic pain and dysfunctional uterine bleeding after having had 
 
         irregular menses with midcycle bleeding for approximately eight 
 
         to nine months.  Such had been unresponsive to D & C and many 
 
         cycles of antibiotic therapy.  Claimant's interval was noted to 
 
         be irregular as stated with a duration of four to ten days.  
 
         Claimant admitted to menorrhagia and significant dysmenrorhea as 
 
         well as complaints of dyspareunia.  Hospital records indicate 
 
         that a vaginal hysterectomy was performed on April 24, 1987, 
 
         followed by a right inguinal hernia repair.
 
         
 
              Dr. Dasso saw claimant on May 7, 1987.  Claimant complained 
 
         of pain in her lower back for approximately five weeks.  She was 
 
         uncertain as to the cause.  X-rays of the lumbar spine did not 
 
         show any evidence of fracture, dislocation or bone or joint 
 
         abnormality.  Diagnosis was of lumbosacral myofascial strain.  
 
         The doctor again saw claimant on July 21, 1987.  He reported that 
 
         she was then doing fairly well with no muscle spasm or tenderness 
 
         present.  Claimant took medication when needed, was working and 
 
         was released from further care, but to return as necessary.
 
         
 
              Exhibits 9 through 16, statements for medical care provided 
 
         to claimant, were reviewed and will be discussed further below.
 
         
 
              The balance of the evidence was reviewed and considered in 
 
         the disposition of this matter.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              We consider whether claimant received an injury which arose 
 
         out of and in the course of her employment.  Given the peculiar 
 
         facts of this case, that question is intertwined with the related 
 
         subissue of whether a causal relationship exists between the 
 
         alleged injury and the claimed disability.
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received an injury on February 19, 1987 which 
 
         arose out of and in the course of her employment.  McDowell 
 
         v.Town of Clarksville, 241 W.W.2d 904 (Iowa 1976); Musselman v. 
 

 
         
 
         
 
         
 
         HICKMAN V. CONTINENTAL BAKING COMPANY
 
         PAGE   5
 
         
 
         
 
         central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283'(Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 
 
         246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it."  Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979); McClure v. Union et al. Counties, 
 
         188.W.2d 283 (Iowa 1971); Musselman v. Central Telephone Co., 261 
 
         Iowa 352, 154 N.W.2d 128 (1967)
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934), 
 
         discussed the definition of personal injury in workers' 
 
         compensation cases as follows:
 
         
 
              While a personal injury does not include an 
 
              occupational disease under the Workmen's Compensation 
 
              Act, yet an injury to the health may be a personal 
 
              injury. [Citations omitted.] Likewise a personal injury 
 
              includes a disease resulting from an injury .... The 
 
              result of changes in the human body incident to the 
 
              general processes of nature do not amount to a personal 
 
              injury.  This must follow, even though such natural 
 
              change may come about because the life has been devoted 
 
              to labor and hard work.  Such result of those natural 
 
              changes does not constitute a personal injury even 
 
              though the same brings about impairment of health or 
 
              the total or partial incapacity of the functions of the 
 
              human body.
 
         
 
                 ....
 
         
 
              A personal injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the 
 
              body, the impairment of health, or a disease, not 
 
              excluded by the act, which comes about, not through the 
 
              natural building up and tearing down of the human body, 
 
              but because of a traumatic or other hurt or damage to 
 
              the health or body of an employee. [Citations omitted.] 
 

 
         
 
         
 
         
 
         HICKMAN V. CONTINENTAL BAKING COMPANY
 
         PAGE   6
 
         
 
         
 
              The injury to the human body here contemplated must be 
 
              something, whether an accident or not, that acts 
 
              extraneously to the natural processes of nature, and 
 
              thereby impairs the health, overcomes, injures, 
 
              interrupts, or destroys some function.of the body, or 
 
              otherwise damages or injures a part or all of the 
 
              body.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of February 19, 1987 is causally 
 
         related to the disability on which she-now bases her claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 
         Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              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 760-761 (1956).  
 
         If the claimant had a preexisting condition or disability that is 
 
         aggravated, accelerated, worsened or lighted up so that it 
 
         results in disability, claimant is entitled to recover.  Nicks v. 
 
         Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962).
 
         
 
              Claimant alleges she experienced pain on the injury date 
 
         after pulling a heavy cart.  Claimant's family physician 
 
         subsequently diagnosed a hernia.  The company physician 
 
         apparently disagreed with that diagnosis and referred claimant to 
 
         her gynecologist for continued treatment of preexisting 
 
         gynecological problems.  Claimant subsequently underwent both a 
 
         hysterectomy and hernia repair surgery.  Dr. Johnson, the family 
 
         physician, opined that the hernia was a work-related injury from 
 
         pushing and pulling heavy carts at work.  He also opined that 
 
         claimant's gynecological problems resulted from her work 
 
         activities.  Dr. Fischer diagnosed a strain injury resulting in 
 
         Otraumatic industrial right inguinal hernia requiring operative 
 
         intervention."  Dr. Krug, the treating gynecologist, did not 
 
         believe that claimant's job or job performance had produced the 
 
         irregular heavy vaginal bleeding and chronic pelvic pain for 
 
         which claimant underwent a vaginal hysterectomy.  Dr. Peterson 
 
         reported that claimant had had subjective complaints of right 
 
         side pain increasing with lifting and pulling for approximately 
 
         one year as of March 17, 1987.  Claimant's described work injury 
 
         would not be inconsistent with the development of a hernia as 
 
         Drs. Johnson and Fischer opined.  Claimant is, therefore, found 
 
         to have established a work-related injury by way of a hernia with 
 
         need for hernia repair.  Any claimed disability related to the 
 
         hernia is found to have been causally related to claimant's work 
 
         injury.  As regards claimant's gynecological problems, the 
 
         opinion of Dr. Krug, as a specialist in that area, is given 
 
         greater weight than the opinion of Dr. Johnson, a family 
 
         practitioner.  Dr. Krug did not find the problems related to 
 
         claimant's job.  Claimant's long prior history of such problems 
 
         also makes such a relationship unlikely.  Likewise, claimant has 
 
         not established that any claimed disability relating to her 
 

 
         
 
         
 
         
 
         HICKMAN V. CONTINENTAL BAKING COMPANY
 
         PAGE   7
 
         
 
         
 
         gynecological problems is causally related to any work injury.
 
         
 
              Claimant testified she had back problems subsequent to her 
 
         work injury, which problems have now resolved.  Claimant did not 
 
         seek care for her back problems until May, 1987.  She then could 
 
         not relate those problems to a particular event or to particular 
 
         activities.  No doctor has opined they related to her work 
 
         incident or to her work.  ClaimantOs back problems are not found 
 
         to be related to her work injury.
 
         
 
              We reach the question of the nature and extent of claimant's 
 
         disability and entitlement to benefits.
 
         
 
              The parties have stipulated that, if claimant were entitled 
 
         to either healing period or temporary total disability benefits, 
 
         any liability of defendants' would be from April 24, 1987 to July 
 
         13, 1987.  Claimant was off work during that period on account of 
 
         both her non-work-related hysterectomy and her work-related 
 
         hernia repair.  It is impossible on the record presented to 
 
         determine if the work-related hernia repair would have a 
 
         different healing period than the overall healing period for both 
 
         conditions.  Healing period benefits are therefore awarded 
 
         throughout that time.
 
         
 
              We now consider the question of permanency entitlement.
 
         
 
              An injury is the producing cause; the disability, however, 
 
         is the result, and it is the result which is compensated.  Barton 
 

 
         
 
         
 
         
 
         HICKMAN V. CONTINENTAL BAKING COMPANY
 
         PAGE   8
 
         
 
         
 
         v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); 
 
         Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 
 
         (1943).
 
         
 
              If a claimant contends he has industrial disability he has 
 
         the burden of proving his injury results in an ailment extending. 
 
         beyond the scheduled loss.  Kellogg v. Shute and Lewis Coal Co., 
 
         256 Iowa 1257, 130 N.W.2d 667 (1964).
 
         
 
              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. 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).
 
         
 
              In Parr v. Nash Finch Co., (appeal decision, October 31, 
 
         1980) the industrial commissioner, after analyzing the decisions 
 
         of McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) and 
 
         Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980), 
 
         stated:
 
         
 
              Although the court stated that they were looking for 
 
              the reduction in earning capacity it is undeniable that 
 
              it was the "loss of earnings" caused by the job 
 
              transfer for reasons related to the injury that the 
 
              court was indicating justified a finding of "industrial 
 
              disability."  Therefore, if a worker is placed in a 
 
              position by his employer after an injury to the body as 
 
              a whole and because of the injury which results in an 
 
              actual reduction in earning, it would appear this would 
 
              justify an award of industrial disability.  This would 
 
              appear to be so even if the worker's "capacity" to earn 
 
              has not been diminished.
 
         
 
              For example, a defendant employer's refusal to give any sort 
 
         of work to a claimant after he suffers his affliction may justify 
 
         an award of disability.  McSpadden v. Big Ben Coal Co., 288 
 
         N.W.2d 181 (Iowa 1980).
 
         
 
              The only disability rating is that of Dr. Fischer who 
 
         indicated that, as a result of findings on examination and 
 
         permanent restrictions imposed by her treating physician, 
 
         claimant had a five percent permanent partial impairment of the 
 
         body as a whole.  The doctor's findings were rather limited, 
 
         consisting of operative scarring, tenderness to palpation and 
 
         pressure over the right inguinal area.  The findings which the 
 
         doctor considered apparently related to the right inguinal hernia 
 

 
         
 
         
 
         
 
         HICKMAN V. CONTINENTAL BAKING COMPANY
 
         PAGE   9
 
         
 
         
 
         repair only.  The permanent restrictions that Dr. Johnson imposed 
 
         consisted of a permanent light duty restriction with no lifting, 
 
         pulling or pushing.  Unfortunately, Dr. Johnson did not indicate 
 
         whether such restrictions resulted from claimant's gynecological 
 
         problems, from her hernia problems or from both conditions.  He 
 
         noted only that they resulted from claimant's complaints of 
 
         abdominal pain while working.  For that reason, it is difficult 
 
         to assess the overall impact of  claimant's hernia problem on her 
 
         work restrictions.  Claimant indicated she was laid off following 
 
         the imposition of such restrictions as no work was available 
 
         within the restrictions.  Again, it is difficult to assess 
 
         whether claimant's layoff resulted from her work-related hernia, 
 
         from her nonwork-related gynecological problems or from the 
 
         sequelae of both.  Our experience with other hernia conditions 
 
         makes us aware that restrictions on lifting, pulling and pushing 
 
         following hernia repair are not uncommon.  [We are also aware 
 
         that such restrictions, on at least a temporary basis, would not 
 
         necessarily be uncommon following hysterectomy surgery, however.] 
 
         For that reason, we find it reasonable to believe that claimant's 
 
         work-related hernia was a substantial factor in Dr. Johnson's 
 
         imposition of permanent light duty restrictions and in claimant's 
 
         subsequent layoff.  Such restrictions are likely to limit 
 
         claimant from many heavy industrial jobs.  Little evidence 
 
         regarding claimant's work history was presented.  Likewise, 
 
         little evidence regarding claimant's education and training was 
 
         presented.  Hence, it is not possible to assess the effect of 
 
         those factors on claimant's industrial disability.  Claimant 
 
         appears motivated to work and has accepted a position in a meat 
 
         packing plant which she believes is within her restrictions.  She 
 
         earns approximately $4.20 per hour less in that position than she 
 
         earned at Continental Baking.  Claimant has not sought vocational 
 
         retraining and it is impossible, on this record, to assess her 
 
         capacity for such retraining.  The record as a whole suggests 
 
         that claimant would generally have been employed in industrial 
 
         positions prior to her work injury and that claimant is generally 
 
         still best suited for such positions.  Her access to such 
 
         positions has been significantly reduced by her work condition, 
 
         although it has not been absolutely reduced.  Likewise, the 
 
         evidence suggests that, at the time of her injury, claimant was 
 
         earning a wage at the higher end of the scale as regards wages 
 
         generally paid for heavy industrial work.  Her current wage is at 
 
         the lower end of that scale, but not inconsistent with what would 
 
         generally be expected for an individual engaged in heavy 
 
         industrial labor.  Claimant might well be precluded from many 
 
         heavy industrial jobs, including those which are more physically 
 
         demanding and therefore are likely to be at the higher end of the 
 
         heavy industrial wage scale, however.  Claimant, therefore, has 
 
         sustained industrial disability as a result of her work injury.  
 
         We find such industrial disability to have resulted in permanent 
 
         partial disability of 15% of the body as a whole. [We do not find 
 
         this a case where apportionment under Varied Industries v. 
 
         Sumner is appropriate.  While claimant did have preexisting 
 
         gynecological problems and, as noted above, those may impact on 
 
         her ultimate disability, the claim does not fall within the rule 
 
         of Varied Industries concerning apportionment.  Apportionment of 
 
         disability is limited to those situations where the prior injury 
 
         or illness, unrelated to employment, independently produces some 
 
         ascertainable portion of the ultimate industrial disability found 
 
         to exist following the employment-related aggravation.  Varied 
 

 
         
 
         
 
         
 
         HICKMAN V. CONTINENTAL BAKING COMPANY
 
         PAGE  10
 
         
 
         
 
         Industries, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984).]  We 
 
         cannot ascertain on this record whether claimant's hysterectomy 
 
         has had independent, long-term effects on claimant's earning 
 
         capacity.
 
         
 
              Claimant seeks payment of medical costs identified in 
 
         exhibits 9 through 16 contending that such costs are payments 
 
         related to a work-related condition for which defendants are 
 
         liable.  As noted above, defendants are not liable for any 
 
         compensation relative to claimant's gynecological condition.  We 
 
         have attempted to review each of the medical cost exhibits to 
 
         determine whether they related to the hernia or to the 
 
         hysterectomy.  We find it unfortunate that claimant did not more 
 
         completely identify the nature of treatment obtained relative to 
 
         each statement.  We find, on the limited record available, 
 
         claimant's exhibit 9, costs for an echo-pelvic ultrasound, 
 
         related to the hysterectomy and, therefore, not compensable.  We 
 
         find claimant's exhibit 10, costs for colon-barium enema 
 
         diagnostic study, related to claimant's hysterectomy and, 
 
         therefore, not compensable.  Costs on exhibit 11 relate to a CT 
 
         scan of the lumbar spine.  Claimant did see Dr. Dasso on May 7, 
 
         1987 for low back pain of approximately five weeks' duration.  
 
         She was uncertain as to its cause.  Dr. Dasso never rendered an 
 
         opinion relating such low back pain to claimant's work condition.  
 
         We therefore find the costs evidenced on exhibit 11 not 
 
         compensable.  Costs on claimant's exhibit 12 relating to a 
 
         vaginal culture are found not compensable.  Costs on claimant's 
 
         exhibit 13 with Dr. Peterson are found compensable.  Such costs 
 
         in the amount of $23.00 related to claimant's visit of March 17, 
 
         1987 for consideration of whether she had a work-related hernia.  
 
         Dr. Peterson is the company physician.  His failure to diagnose 
 
         such hernia does not preclude the defendants' liability for an 
 
         office visit to make such determination.  Costs with Dr. Dasso, 
 
         indicated on claimant's exhibit 14, relate to treatment, of back 
 
         complaints and are, therefore, not compensable.  Costs in 
 
         claimant's exhibit 15 are with Dr. Johnson.  The cost of $250.00 
 
         for assistance at claimant's hernia repair surgery is found 
 
         compensable.  Likewise, office visit charges, each in the amount 
 
         of $23.00, from July 30, 1987 to August 27, 1987 are compensable.  
 
         Even though claimant's testimony would suggest that such office 
 
         visits related both to recovery from the hernia and from the 
 
         hysterectomy, the hernia can be considered a substantial factor.  
 
         The cost designated "OMT" of June 5, 1987 is not found 
 
         compensable as it cannot be properly identified.  The cost stated 
 
         with Dr. Bushan of $25.00 on claimant's exhibit 16 is found 
 
         compensable.  The cost is for an office visit.  Dr. Bushan was 
 
         the performing surgeon as regards claimant's hernia repair.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 
              On February 19, 1987, while pulling carts which weighed 
 
         approximately 200-300 pounds in the course of her employment with 
 
         Continental Baking Company, claimant experienced pain in her 
 
         groin.
 
         
 
              Claimant had had pelvic pain prior to February 19, 1987 and 
 
         had treated with Dr. Krug for irregular heavy vaginal bleeding 
 

 
         
 
         
 
         
 
         HICKMAN V. CONTINENTAL BAKING COMPANY
 
         PAGE  11
 
         
 
         
 
         and chronic pelvic pain prior to that date.
 
         
 
              Claimant's chronic pelvic pain, dysfunctional uterine 
 
         bleeding and irregular menses had been unresponsive to D & C and 
 
         many cycles of antibiotic therapy.
 
         
 
              Dr. Johnson diagnosed right inguinal hernia after the 
 
         February 19, 1987 incident.
 
         
 
              On April 24, 1987, claimant underwent both a vaginal 
 
         hysterectomy and repair of the right inguinal hernia.
 
         
 
              On May 7, 1987, claimant treated with Dr. Dasso for 
 
         complaints of back pain.
 
         
 
              Claimant did not indicate a history of injury or accident 
 
         and did not know the cause of her back pain.
 
         
 
              Claimant returned to work on July 13, 1987.
 
         
 
              Claimant continued to experience abdominal pain after her 
 
         work return.
 
         
 
              On August 19, 1987, Dr. Johnson restricted claimant to 
 
         permanent light duty with no lifting, pulling or pushing.
 
         
 
              Dr. Johnson's restrictions would be consistent with 
 
         restrictions found after hernia repair surgery.
 
         
 
              Dr. Johnson's restrictions would also be consistent with at 
 
         least temporary restrictions after hysterectomy.
 
         
 
              Claimant's work incident as described is consistent with 
 
         activity which could produce hernia.
 
         
 
              Claimant's work as described did not produce her 
 
         gynecological problems.
 
         
 
              Claimant is 35 years old.
 
         
 
              Claimant has a five percent permanent partial impairment of 
 
         the body as a whole.
 
         
 
              The impairment cannot be apportioned between claimant's 
 
         gynecological problem and her hernia and its sequela, but is not 
 
         inconsistent with impairment subsequent to hernia and hernia 
 
         repair.
 
         
 
              Claimant did not produce evidence concerning her prior 
 
         education or work experience.
 
         
 
              Claimant apparently has generally worked in heavy industry.
 
         
 
              Claimant earned $10.20 per hour with Continental Baking.
 
         
 
              Claimant was discharged after Dr. Johnson placed his 
 
         permanent light duty restriction on the grounds that no jobs were 
 
         available within her restrictions.
 
         
 

 
         
 
         
 
         
 
         HICKMAN V. CONTINENTAL BAKING COMPANY
 
         PAGE  12
 
         
 
         
 
              Claimant is well-motivated to work.
 
         
 
              Claimant was working at Iowa Beef Processors at time of 
 
         hearing and earning $6.00 per hour.
 
         
 
              Claimant's work for Continental Baking could be classified 
 
         as heavy industrial labor.
 
         
 
              Claimant's current position could also be classified as 
 
         heavy industrial labor.
 
         
 
              Claimant's current position is of a lighter nature than her 
 
         Continental Baking position and apparently is within claimant's 
 
         restrictions.
 
         
 
              Claimant's restrictions likely preclude her from certain 
 
         heavy industrial labor employment.
 
         
 
              Claimant apparently has not sought vocational 
 
         rehabilitation.
 
         
 
              The record does not indicate whether claimant would be a 
 
         good candidate for such efforts.
 
         
 
              Dr. Peterson's examination of claimant on March 17, 1987 
 
         related to her work injury.
 
         
 
              Dr. Johnson's examinations and treatment of claimant on June 
 

 
         
 
         
 
         
 
         HICKMAN V. CONTINENTAL BAKING COMPANY
 
         PAGE  13
 
         
 
         
 
         22, 1987, July 30, 1987, August 13, 1987, August 25, 1987 and 
 
         August 27, 1987 related to her work injury.
 
         
 
              Dr. Bushan's treatment of claimant of August 24, 1987 
 
         related to her work injury.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant has established an injury which arose out of and in 
 
         the course of her employment by way of her right inguinal hernia 
 
         on February 19, 1987.
 
         
 
              Claimant has established a causal relationship between that 
 
         injury and claimed disability as such disability relates to her 
 
         right inguinal hernia.
 
         
 
              Claimant is entitled to permanent partial disability in the 
 
         amount of 15% of the body as a whole as a result of her February 
 
         19, 1987 injury.
 
         
 
              Claimant is entitled to payment of.medical costs with C. L. 
 
         Peterson, D.O.; John Johnson, D.O.; and, Y. M. S. Bushan, M.D., 
 
         as outlined in the above applicable law and analysis.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants pay claimant healing period benefits at the rate 
 
         of two hundred seventy-one and 88/100 dollars ($271.88) per week 
 
         from April 24, 1987 to July 13, 1987.
 
         
 
              Defendants pay claimant, permanent partial disability 
 
         benefits at the rate of two hundred seventy-one and 88/100 
 
         dollars ($271.88) per week for seventy-five (75) weeks with such 
 
         payments to commence on July 13, 1987.
 
         
 
              Defendants pay claimant medical costs with C. L. Peterson, 
 
         D.O., in the amount of twenty-three and 00/100 dollars ($23.00); 
 
         with Y. M. S. Bushan, M.D., in the amount of twenty-five and 
 
         00/100 dollars ($25.00); and, with John Johnson, D.O., in the 
 
         amount of three hundred forty-two and 00/100 dollars ($342.00).
 
         
 
              Defendants pay accrued amounts in a lump sum.
 
         
 
              Defendants pay interest pursuant to Iowa Code section 
 
         85.30.
 
         
 
              Claimant and defendants will bear their own costs of this 
 
         proceeding as stipulated in the pre-hearing report.
 
         
 
              Defendants file claim activity reports as required by the 
 
         agency pursuant to Division of Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 18th day of August, 1988.
 
         
 
         
 

 
         
 
         
 
         
 
         HICKMAN V. CONTINENTAL BAKING COMPANY
 
         PAGE  14
 
         
 
         
 
         
 
         
 
                                           HELENJEAN WALLESER
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Peter M. Soble
 
         Attorney at Law
 
         505 Plaza Office Building
 
         Rock Island, Illinois 61201
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         600 Union Arcade Building
 
         111 East Third Street
 
         Davenport, Iowa 52801-1550
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              1108.50, 1803, 2200, 2503
 
                                              Filed August 18, 1988
 
                                              HELENJEAN WALLESER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DIANE HICKMAN,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                   File No. 846909
 
         CONTINENTAL BAKING COMPANY,
 
                                               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.
 
         
 
         
 
         
 
         1108.50, 1803, 2200, 2503
 
         
 
              Claimant found to have sustained a work-related right 
 
         inguinal hernia and entitlement to industrial disability of 15%.  
 
         Claimant's preexisting gynecological problems and subsequent 
 
         hysterectomy not found work-related.  Apportionment of disability 
 
         between work and nonwork condition and their sequelae not found 
 
         possible under Sumner principles.  Claimant not entitled to 
 
         payment for expenses of hysterectomy, even though that surgery 
 
         was performed concurrently with hernia repair.
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RUSSELL ROSENBAUM,                         File No. 846923
 
         
 
              Claimant,                               A P P E A L
 
         
 
         vs.                                        D E C I S I O N
 
         
 
         ASSOCIATED PROPERTIES, INC.,                  F I L E D
 
         
 
              Employer,                               DEC 28 1989
 
              Defendant.
 
                                             IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendant appeals from an arbitration decision awarding 
 
         claimant permanent partial disability benefits as the result of 
 
         an alleged injury on June 12, 1985.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing; joint exhibit 1; claimant's exhibits 1 
 
         through 3; and defendant's exhibits A through C.  Both parties 
 
         filed briefs on appeal.
 
         
 
                                 ISSUES
 
         
 
              Defendant states the following issues on appeal:
 
         
 
              1.  The deputy commissioner's rulings on January 17, 1989 by 
 
              telephone and January 20, 1989 by written order re 
 
              sanctions, in view of the claimant's conduct, were an abuse 
 
              of discretion.
 
         
 
              2.  The deputy commissioner erred in granting claimant's 
 
              motion to amend the petition on January 24, 1989, regarding 
 
              the name of the employer and the date of the injury.
 
         
 
              3.  The award made in this matter was excessive in view of 
 
              the evidence presented.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision filed March 27, 1989 adequately and 
 
         accurately reflects the pertinent evidence and it will not be set 
 
         forth herein.
 
         
 
                               APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and evidence.  In addition, the 
 
         following authority is noted:
 
         
 
                                                  
 
                                                           
 
              Iowa Division of Industrial Services Rule 343-4.17 states:
 
         
 
                   Each party to a contested case shall serve all medical 
 
              records and reports concerning the injured worker in the 
 
              possession of the party upon each opposing party not later 
 
              than twenty days following filing of an answer, or if not 
 
              then in possession of a party, within ten days of receipt.
 
         
 
                                  ANALYSIS
 
         
 
              Defendant argues on appeal that the sanctions imposed by the 
 
         deputy, cutting off further discovery and denying an independent 
 
         medical examination, were an abuse of discretion.  Defendant 
 
         asserts that the reports of Harold J. Fletcher, M.D., were 
 
         relevant to establishing the extent of claimant's prior 
 
         disability, but that defendant did not learn of the existence of 
 
         such reports until receiving the report of another doctor on 
 
         January 9, 1989.  Defendant points out that claimant indicated in 
 
         his answers to interrogatories that he would provide all reports 
 
         when he received them.
 
         
 
              A reconstruction of the procedural history of the case from 
 
         the file is required.  Claimant filed his petition on May 8, 
 
         1987. Claimant answered interrogatories propounded by the 
 
         employer, and listed past medical providers, including Dr. 
 
         Fletcher.  On June 10, 1987, the employer served a request for 
 
         production of medical records.  On June 29, 1987, claimant served 
 
         interrogatories on the employer, one of which asked for the 
 
         correct name of the employer.
 
         
 
              On March 24, 1988, claimant requested that the employer file 
 
         an answer to the interrogatories previously served.  This request 
 
         was renewed on April 26, 1988.
 
         
 
              On May 2, 1988, claimant indicated he was ready for 
 
         prehearing conference and hearing.  On August 22, 1988, a hearing 
 
         assignment order was issued, setting hearing for January 18, 
 
         1989. Paragraph 6 of the order required the parties to exchange 
 
         witness and exhibit lists not less than 15 days before the 
 
         hearing (January 3, 1989), and stated that any witness or exhibit 
 
         not complying with that requirement would not be allowed into 
 
         evidence at the hearing.
 
         
 
              On January 9, 1989, the employer received claimant's medical 
 
         records in response to the request for production.  The records 
 
         included a report by Robert E. VanDemark, Jr., M.D., dated June 
 
         19, 1987.  There were no records of Dr. Fletcher in the 
 
         response.
 
         
 
              On January 12, the employer attempted to obtain copies of 
 
         Dr. Fletcher's records directly from Dr. Fletcher.  Dr. 
 
         Fletcher's office indicated to the employer that the records 
 
         would be mailed on January 13, 1989.  On January 13, 1989, the 
 
         employer contacted the office of the Iowa Industrial 
 
         Commissioner, and orally requested a continuance of the hearing 
 
                                                  
 
                                                           
 
         for the purpose of conducting an independent medical examination 
 
         of claimant.  On January 16, 1989, the employer was informed that 
 
         claimant had withdrawn his patient's waiver on January 13 and 
 
         again on January 16, and medical records would not be provided by 
 
         Dr. Fletcher.  At some point claimant reinstituted his patient 
 
         waiver.  Also on January 16, 1989, the employer answered 
 
         claimant's interrogatories.
 
         
 
              On January 17, 1989, the employer filed a motion for 
 
         sanctions, and a request for an independent medical examination. 
 
         The employer cited the fact that Dr. VanDemark's report was dated 
 
         June 19, 1987, but not received by the employer until January 9, 
 
         1989.  The employer alleged that the claimant presumably had the 
 
         report in his possession more than 10 days, and therefore did not 
 
         comply with Division of Industrial Services Rule 343-4.17.  The 
 
         employer also requested an independent medical exam.
 
         
 
              The employer then filed a second motion for sanctions, and 
 
         in the alternative, a request for a continuance.  The employer 
 
         alleged that claimant had failed to serve employer with reports 
 
         from Dr. Fletcher, and had withdrawn the patient's waiver, 
 
         thereby preventing the employer from obtaining the reports on its 
 
         own.
 
         
 
              A telephone hearing conducted by Deputy Industrial 
 
         Commissioner Walleser was held on January 17 on both motions. 
 
         Deputy Walleser denied the motion for continuance, noting that 
 
         the parties had agreed on scheduling the hearing for January 18, 
 
         1989 at the time of pretrial, and that any discovery not 
 
         completed by the time of hearing would be waived.  It was also 
 
         noted by the deputy that the employer had not previously filed a 
 
         motion to compel claimant to comply with the request for 
 
         production of medical records.  The request for an independent 
 
         medical examination was denied as well.  Deputy Walleser then 
 
         excluded all medical records of Dr. VanDemark and Dr. Fletcher, 
 
         and any records of Dr. Durwood and Dr. Kruse not exchanged prior 
 
         to January 3, 1989.  Deputy Walleser then urged the parties to 
 
         cooperate in discovery matters.
 
         
 
              At the hearing on January 18, 1989, defendant requested a 
 
         continuance, and the hearing deputy indicated counsel for 
 
         defendant should place a call to the industrial commissioner's 
 
         office.  Deputy Walleser was absent from the office, and the call 
 
         was forwarded to Deputy McGovern.  Deputy McGovern's memo to the 
 
         file indicates that she received a call requesting a continuance 
 
         based on evidence newly discovered subsequent to the ruling by 
 
         Deputy Walleser.  Counsel for the employer indicated that in 
 
         light of the newly discovered evidence, the ruling on sanctions 
 
         by Deputy Walleser would result in penalizing the party 
 
         requesting the sanctions instead of the party that allegedly 
 
         perpetrated the need for the sanctions.  Deputy McGovern informed 
 
         the parties she lacked the authority to overturn another deputy's 
 
         ruling.  Mr. Flom, counsel for the employer, assured Deputy 
 
         McGovern that he was not requesting a reversal of a ruling, but 
 
         merely requesting a continuance in order to review the evidence. 
 
                                                  
 
                                                           
 
          A continuance was granted.
 
         
 
              Deputy McGovern specifically noted that no mention was made 
 
         of a previously denied request for a continuance, and that a 
 
         continuance would not have been granted had such information been 
 
         made known to her.
 
         
 
              On January 19, 1989, a third telephone conference was held. 
 
         Deputy Walleser informed the parties that Deputy McGovern was 
 
         unaware of the prior denial of a continuance, and that Deputy 
 
         Walleser regarded the second request for a continuance as an 
 
         effort to circumvent the earlier ruling.  Deputy Walleser then 
 
         rescinded the continuance and set the hearing for January 26, 
 
         1989.
 
         
 
              On January 23, 1989, the claimant filed a motion for leave 
 
         to amend the petition, reciting that the employer had not 
 
         answered claimant's interrogatories until January 16, 1989, two 
 
         days before the first scheduled hearing, and that the answers 
 
         revealed that the employer had been incorrectly named in the 
 
         petition.  Claimant also sought to amend the petition to reflect 
 
         the correct injury date.  On January 24, 1989, leave to amend was 
 
         granted.  At the hearing on January 26, 1989, the employer 
 
         resisted the motion to amend.  The petition was amended by 
 
         claimant on January 31, 1989.
 
 
 
                                  
 
                                                           
 
         
 
              The hearing deputy allowed the parties seven days to 
 
         supplement the record in regard to Deputy's Walleser's ruling.  
 
         The employer filed a statement indicating that the parties did 
 
         inform Deputy McGovern of the prior request for a continuance; 
 
         that Deputy McGovern indicated she was experiencing phone problems 
 
         during the conference and may not have heard the mention of a 
 
         prior request for continuance; and that at the conclusion of the 
 
         first telephone conversation with Deputy Walleser, one of the 
 
         attorneys for the employer indicated he did not understand the 
 
         ruling but Deputy Walleser declined to explain the ruling.  The 
 
         statement also indicates that even when Dr. Fletcher provided 
 
         claimant's medical information to the employer, Dr. Fletcher 
 
         misunderstood and only provided records back to 1985, even though 
 
         he had been treating claimant since 1981.  The employer indicates 
 
         it was this "thwarting" of the discovery attempt that prompted the 
 
         second request for a continuance.  Claimant joined in the request 
 
         and agreed to an independent medical examination, in return for 
 
         the employer paying 90 days of benefits without admission of 
 
         liability, and employer not resisting the amendment of the 
 
         petition.  However, the continuance was rescinded as set forth 
 
         above.
 
         
 
              A review of the record reveals that claimant listed Dr. 
 
         Fletcher in his answers to interrogatories in 1987.  Claimant 
 
         went so far as to include in his interrogatory answers an 
 
         invitation to defendant to subpoena any records that claimant did 
 
         not have himself.  At that point in time, claimant had executed a 
 
         patient's waiver.  Defendant apparently did not seek Dr. 
 
         Fletcher's records until a few days before the scheduled hearing, 
 
         when claimant had withdrawn his patient's waiver.
 
         
 
              Defendant states that it relied to its detriment on 
 
         claimant's interrogatory answer stating claimant would provide 
 
         any further reports once they were obtained by claimant.  
 
         Claimant exchanged copies of the medical reports he utilized at 
 
         the hearing with defendant.  The reports in question were not 
 
         utilized by claimant.
 
         
 
              Claimant listed Dr. Fletcher in his interrogatory answers. 
 
         There is no showing that claimant received Dr. Fletcher's reports 
 
         and failed to provide them to defendant.  Defendant waited until 
 
         the eleventh hour to compel the reports, even though defendant 
 
         was on notice that such records might exist nearly two years 
 
         prior to the hearing.  Defendant apparently relied on claimant to 
 
         obtain and utilize at the hearing all his medical records.  
 
         Claimant is obligated to truthfully answer interrogatories, and 
 
         to completely answer an interrogatory question as to past medical 
 
         providers. Claimant did so.  Defendant knew which records 
 
         claimant would be offering into evidence at the hearing by the 
 
         records claimant provided under our discovery rules.  Under 
 
         Division of Industrial Services Rule 343-4.17, claimant is only 
 
         obligated to provide those medical reports that are in his 
 
         possession.  Defendant was aware that claimant had consulted Dr. 
 
         Fletcher from claimant's answers to interrogatories.  If 
 
                                                  
 
                                                           
 
         defendant desired to use Dr. Fletcher's reports at the hearing, 
 
         defendant had the opportunity to obtain those records.  Claimant 
 
         did not withdraw the patient's waiver until just prior to the 
 
         scheduled hearing, and reinstated the waiver a short time later.  
 
         Defendant then obtained the reports it desired.  Even if claimant 
 
         had never withdrawn his patient waiver and defendant had obtained 
 
         Dr. Fletcher's reports upon its first request, that request was 
 
         untimely.  Defendant would have been barred from using those 
 
         reports at the hearing because defendant had not listed the 
 
         reports on its list of exhibits at least 15 days prior to 
 
         hearing.  Thus, the withdrawal of the patient waiver, although 
 
         not to be condoned, had no effect on the status of defendant's 
 
         last minute discovery attempt.  The request for Dr. Fletcher's 
 
         records was untimely even before claimant withdrew the patient 
 
         waiver.
 
         
 
              It is noted that neither claimant nor defendant displayed 
 
         exemplary compliance with our discovery rules.  This appeal is 
 
         poignant proof of the detrimental effect noncompliance with these 
 
         rules can have on the functioning of the workers' compensation 
 
         system.  Discovery rules exist to prevent surprise and operate 
 
         for the benefit of all parties.  Proper utilization of the rules 
 
         will provide a party with all information in an opposing party's 
 
         possession or knowledge of where to obtain it.  By waiting until 
 
         just prior to the hearing, defendant has created its own time 
 
         problems.  In addition, the hearing assignment order notes that 
 
         the parties agreed to waive any discovery not completed by the 
 
         date of hearing.  The deputy's sanction orders cutting off 
 
         discovery were not an abuse of discretion.
 
         
 
              Defendant also asserts that the deputy erred in allowing 
 
         claimant to amend his petition to reflect defendant's proper 
 
         business name and the correct date of injury.  Defendant argues 
 
         that the amendment in effect substitutes a new party outside the 
 
         two year statute of limitations and should be barred.  Defendant 
 
         relies on the distinction between "Aqua Soo Water Treatment, 
 
         Inc.," the name originally listed for defendant in the petition, 
 
         and the amended and correct name, "Associated Properties, Inc., 
 
         d/b/a Aqua Soo Water Treatment."
 
         
 
              The record shows that as early as 1987, claimant propounded 
 
         interrogatories to defendant, one of which asked for the full 
 
         name of claimant's employer.  Also, defendant filed an answer to 
 
         the petition naming it as Aqua Soo Water, Inc.  Claimant's pay 
 
         checks bore the name "Aqua Soo."  Defendant did not answer 
 
         claimant's interrogatories until two days before the hearing.
 
         
 
              The Iowa Supreme Court has held that allowing amendment to 
 
         pleadings is the rule; denial is the exception.  Galbraith v. 
 
         George, 217 N.W.2d 598 (Iowa 1974).  Considerable discretion is 
 
         allowed in determining whether or not leave to amend should be 
 
         granted.  Ackerman v. Lauver, 242 N.W.2d 342 (Iowa 1976). 
 
         Defendant cannot improperly fail to answer claimant's 
 
         interrogatory on the proper name of the employer, let the two year 
 
         statute of limitation pass, and then seek to disallow the 
 
                                                  
 
                                                           
 
         amendment of the proper name and ask for dismissal because the new 
 
         petition is untimely.  It is also noted that the same person owns 
 
         both Associated Properties and Aqua Soo Water Treatment.  
 
         Defendant has acknowledged  that Aqua Soo Water Treatment is one 
 
         of the names Associated Properties does business under.  Clearly 
 
         the real party in interest was involved in the litigation at all 
 
         times.  Similarly, defendant does not allege it was misled as to 
 
         the injury in question by the reference to "July, 1985" in the 
 
         petition, later amended by claimant to "June 12, 1985."
 
         
 
              To the extent the original name and date of injury in the 
 
         petition was incorrect, the error is negligible, caused no 
 
         prejudice, and, in regards to the defendant's correct name, was 
 
         in fact caused by defendant's lack of compliance with answering 
 
         interrogatories.  The deputy properly allowed the amendment of 
 
         the petition.
 
         
 
              As a final issue on appeal, defendant contends that the 
 
         award was excessive.  Defendant's brief on this issue merely 
 
         points out that the vocational rehabilitation expert did not 
 
         conduct actual tests of claimant.  This fact was noted in the 
 
         deputy's review of the evidence and given proper weight.  A 
 
         review of the record as a whole reveals the award was not 
 
         excessive in light of the factors utilized to ascertain the 
 
         extent of industrial disability.
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  Claimant injured his back on June 12, 1985 while working 
 
         for defendant.
 
         
 
              2.  Claimant's impairment is the result of his injury on 
 
         June 12, 1985.
 
         
 
              3.  Claimant is restricted from doing physical work 
 
         involving bending or lifting more than 25 pounds.
 
         
 
              4.  Claimant has less than a seventh grade education and has 
 
         difficulty reading.
 
         
 
              5.  Claimant has done manual labor all of his working life.
 
         
 
              6.  Claimant has known no other work for the last 24 years 
 
         other than doing heavy and strenuous lifting and working in the 
 
         water softener business.
 
         
 
              7.  At 50 years of age and with claimant's restrictions and 
 
         limited education, claimant is not retrainable.
 
         
 
              8.  Claimant has a permanent impairment to the body as a 
 
         whole.
 
         
 
              9.  Claimant has a 70 percent loss of earning capacity.
 
         
 
              10.  Claimant has not worked since March 8, 1988.
 
                                                  
 
                                                           
 
         
 
              11.  Claimant was paid his full wages by defendant beginning 
 
         June 12, 1985 to December 31, 1988, inclusive, except for five 
 
         weeks in 1987.
 
         
 
                           CONCLUSIONS OF LAW
 
         
 
              Claimant's injury on June 12, 1985 arose out of and in the 
 
         course of his employment with defendant.
 
         
 
              Claimant's disability is causally connected to his injury of 
 
         June 12, 1985.
 
         
 
              Claimant has a 70 percent industrial disability.
 
         
 
              Claimant is entitled to no healing period benefits because 
 
         he continued to work for defendant after his injury and was paid 
 
         his full wages.
 
         
 
              Claimant's disability payments commence March 8, 1988.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
                                        
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant is entitled to three hundred fifty (350) weeks 
 
         of permanent partial disability benefits at the rate of two 
 
         hundred seventeen and 67/100 dollars ($217.67) per week beginning 
 
         March 8, 1988.
 
         
 
              That claimant is entitled to no healing period benefits.
 
 
 
                           
 
                                                           
 
         
 
              That defendant shall pay accrued weekly benefits in a lump 
 
         sum.
 
         
 
              That defendant shall receive credit against the permanent 
 
         partial disability awarded for forty-two point seven one four 
 
         (42.714) weeks previously paid.
 
         
 
              That defendant shall pay interest on benefits here awarded 
 
         as set forth in Iowa Code section 85.30 beginning January 1, 
 
         1989.
 
         
 
              That defendant shall pay the cost of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendant shall file an activity report upon payment of 
 
         this award as required by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 28th day of December, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Edward J. Keane
 
         Attorney at Law
 
         400 First National Bank Bldg.
 
         P.O. Box 1768
 
         Sioux City, Iowa  51102
 
         
 
         Mr. Douglas E. Flom
 
         Mr. Rodney D. Vellinga
 
         Attorneys at Law
 
         400 Security Bldg.
 
         P.O. Box 3527
 
         Sioux City, Iowa  51102
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            2901 - 2906
 
                                            Filed December 28, 1989
 
                                            David E. Linquist
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RUSSELL ROSENBAUM,
 
         
 
              Claimant,                             File No. 846923
 
         
 
         VS.                                          A P P E A L
 
         
 
         ASSOCIATED PROPERTIES, INC.,               D E C I S I 0 N
 
         
 
              Employer,
 
              Defendant.
 
         
 
         
 
         2906
 
         
 
              Claimant listed past medical providers in response to 
 
         defendant's interrogatories, including Dr. Fletcher.  Defendant 
 
         later served a request for production of medical records.  
 
         Claimant provided all medical records in his possession to 
 
         defendants, but these did not include Dr. Fletcher's records as 
 
         claimant was apparently not in possession of them.
 
         
 
              A pretrial order cut off discovery 15 days before the 
 
         hearing.  Two days prior to the hearing, defendants attempted to 
 
         obtain Dr. Fletcher's records on claimant, but found that 
 
         claimant had withdrawn his patient's waiver.  The waiver was 
 
         reinstituted shortly thereafter.  Defendants argued on appeal 
 
         that sanctions should have been imposed on claimant because he 
 
         failed to provide defendants with Dr. Fletcher's reports.  Held 
 
         that claimant under the rule is only required to produce medical 
 
         reports in his possession.  Defendants were aware that Dr. 
 
         Fletcher had treated claimant, yet failed to seek his records 
 
         until the eleventh hour. Claimant's withdrawal of his waiver was 
 
         brief, and even if claimant had not withdrawn his waiver, 
 
         defendants could not have used Dr. Fletcher's records at the 
 
         hearing because defendant sought them less than 15 days before 
 
         the hearing and had not listed them on its list of exhibits.  
 
         Defendants, not claimant, created the discovery problem by 
 
         postponing discovery until the last minute.
 
         
 
         2901
 
         
 
              Claimant requested through timely interrogatories to 
 
         defendant the employer's proper legal name.  Defendant did not 
 
         answer the interrogatories from claimant until just before the 
 
         hearing, approximately two years after the interrogatories. 
 
         Claimant then sought and received leave to amend the petition to 
 
         reflect the proper name of the defendant.  The two names were 
 
         very similar.  Defendants objected on appeal to the amendment of 
 
                                                
 
                                                         
 
         the petition, arguing that it substituted a new party beyond the 
 
         statute of limitations.  Held that defendants, by failing to 
 
         answer the interrogatories in a timely fashion and letting the 
 
         statute of limitations pass, could not now be heard to object to 
 
         the amendment which their own delay necessitated.  In addition, 
 
         the same party in interest was represented by both names and 
 
         there was no surprise or prejudice.
 
 
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RUSSELL ROSENBAUM,                         File No. 846923
 
         
 
              Claimant,                          A R B I T R A T I O N
 
         
 
         vs.                                        D E C I S I O N
 
         
 
         ASSOCIATED PROPERTIES, INC.,                  F I L E D
 
         
 
              Employer,                               MAR 27 1989
 
              Defendant.
 
                                              IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
                                 INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by claimant, 
 
         Russell Rosenbaum, against Associated Properties, Inc., uninsured 
 
         employer, to recover benefits as a result of an injury sustained 
 
         on June 12, 1985.  This matter came on for hearing before the 
 
         undersigned deputy industrial commissioner in Sioux City, Iowa, 
 
         on January 26, 1989.
 
         
 
              The record in this proceeding consists of the testimony of 
 
         claimant, Burt Stoneburg, and Pat Wabashaw; joint exhibit 1; 
 
         claimant's exhibits 1, 2 and 3; and defendant's exhibits A, B and 
 
         C.
 
         
 
                                    ISSUES
 
         
 
              The issues for resolution are:
 
         
 
              1.  Whether claimant's disability is causally connected to 
 
         his injury of June 12, 1985; and
 
         
 
              2.  The nature and extent of claimant's disability.
 
         
 
                          REVIEW OF THE EVIDENCE
 
         
 
              Claimant injured his back on June 12, 1985 while installing 
 
         a water softener on behalf of defendant.  Claimant indicated that 
 
         he had a pipe wrench in each hand pushing and pulling in his 
 
         attempt to loosen fittings on a water softener that was being 
 
         replaced. Claimant stated that one of the fittings broke under 
 
         pressure causing his body to twist, his back to pop and his 
 
         falling on the floor.  Claimant testified that he then felt a 
 
         pain in his low back and shoulder and down his legs.  Claimant 
 
         said that a coworker, Pat Wabashaw, was working with him on the 
 
         day of the injury and had helped claimant haul the new water 
 
         softener into the customer's basement and proceeded with 
 
         installation.  Claimant testified that he has worked since 1964 
 
         for Burt Stoneburg, owner, and his company in the water softener 
 
                                                
 
                                                         
 
         business.
 
         
 
              Claimant stated that since 1972 his work involved servicing, 
 
         installing and repairing water softeners, and delivering bags of 
 
         salt weighing 50 to 80 pounds.  Claimant said that on some days 
 
         he would deliver up to 400 bags a day and when delivering 50 
 
         pound bags, he would carry two at a time.  Claimant indicated the 
 
         water softeners weighed approximately 120 pounds each.  Claimant 
 
         testified that since age 16 he has been involved in manual labor 
 
         jobs.
 
         
 
              Claimant revealed that he was diagnosed in the 1980's as 
 
         having rheumatoid arthritis and has required gold shots for the 
 
         past six years.  Claimant emphasized that prior to June 12, 1985 
 
         or since that date, his arthritis never interfered with his 
 
         ability to do his work.  Claimant stated that the gold shots have 
 
         slowed the arthritis which is centralized in one hand.  Claimant 
 
         stated that prior to June 12, 1985, he never had back symptoms 
 
         and has never been unable to work other than having the flu or 
 
         occasional cold and a groin injury in the late 1970's or early 
 
         1980's in which he was in the hospital four days and missed three 
 
         weeks of work.  Claimant stated he was sent by defendant to Dr. 
 
         G. A. Chicoine for chiropractic treatments.  Claimant also went 
 
         to his long-time family physician, H. Fletcher, M.D., who 
 
         prescribed Percodan for claimant's pain.  Claimant indicated he 
 
         has become addicted to Percodan as he took up to five pills every 
 
         day to relieve his pain.  Claimant testified that since his June 
 
         12, 1985 injury he continued to work for defendant until Memorial 
 
         Day 1987. Claimant stated that during this period, he continued 
 
         to have low back pain which went down to his buttock to the calf 
 
         of his left leg and caused numbness in the calf of his leg.
 
         
 
              Claimant's duties were the same during this period as they 
 
         were prior to June 12, 1985 except a coworker, Pat Wabashaw, 
 
         basically did all the lifting.  Claimant stated that if he had to 
 
         assist in lifting, he would increase his Percodan.  Claimant 
 
         testified that he went to Quentin Durward, M.D., in 1987 to 
 
         inquire about surgery.  Claimant stated that he understood prior 
 
         to this time that he had to keep going to work to get paid and 
 
         that defendant had no insurance.  Claimant stated he decided not 
 
         to have surgery as defendant was denying him time off.  Claimant 
 
         emphasized that defendant agreed to pay him benefits from March 
 
         7, 1988.  Claimant testified that defendant told him that the 
 
         claimant could be paralyzed or die on the operating table if he 
 
         had surgery.  Claimant contended that he felt intimidated by 
 
         defendant who continued to discuss the workers' compensation case 
 
         with him.  Claimant stated that defendant told him that if 
 
         claimant's case went to a hearing, the lawyers will get the money 
 
         and Burt Stoneburg would lie on the witness stand.  Claimant 
 
         later in his testimony stated that Mr. Stoneburg did not 
 
         influence claimant's decision in having a myelogram and that 
 
         claimant's decision was based on someone else's comment.  
 
         Claimant emphasized that he had no means to pay for surgery.  
 
         Claimant understood that Dr. Durward wanted to do a myelogram and 
 
         established a necessity of surgery but claimant wasn't prepared 
 
                                                
 
                                                         
 
         for surgery due to comments of Mr. Stoneburg and a customer of 
 
         defendant.  Claimant stated he stopped working for defendant on 
 
         March 8, 1988 due to pain in his back, shoulder and leg problems.  
 
         Claimant indicated that since his injury, he still can't sit long 
 
         periods of time, can't mow the lawn, work on his car, has trouble 
 
         sleeping on one side, can't lie on his back, and that the pain is 
 
         very severe in his back and leg.  Claimant stated that the back 
 
         brace that had been prescribed for him has not been worn very 
 
         often because of the pain and pressure on his back when the brace 
 
         is tightened.
 
         
 
              Claimant worked and received his full pay of $335 gross per 
 
         week from the date of injury June 12, 1985 up to March 8, 1988 
 
         except for a five week period from Memorial Day, May 30, 1987, to 
 
         approximately June 26, 1987.  Claimant did not work beginning 
 
         March 8, 1988, to the present but claimant was paid his full 
 
         wages from March 8, 1988 to December 31, 1988, inclusive.  
 
         Claimant indicated he began receiving his social security 
 
         disability benefits December 1988.  Claimant stated that he filed 
 
         his workers' compensation petition in May 1987 at which time the 
 
         defendant called claimant and said that he must let him go 
 
         without pay.  Claimant went back to work for defendant again 
 
         approximately the end of June 1987.
 
         
 
              Claimant testified that he dropped out of the seventh grade 
 
         and that he reads very little.  Claimant indicated that his wife 
 
         assists him in reading.
 
         
 
              Burt Stoneburg, who owns the company for whom claimant has 
 
         worked for 24 years, testified that prior to claimant's injury on 
 
         June 12, 1985, claimant had complained of back and shoulder 
 
         problems.  Stoneburg stated that around October or November 1987, 
 
         his place of business was destroyed by fire and claimant assisted 
 
         him in digging in the ruins for copper fittings and salvageable 
 
         pipe.  Stoneburg indicated that claimant would carry four to five 
 
         gallon buckets full of parts and did not complain.  Stoneburg 
 
         emphasized that claimant is one of the finest soft water 
 
         servicemen and claimant was valuable to him.  He indicated 
 
         claimant could come back and work for him any time as he had a 
 
         lot of time invested in claimant.
 
         
 
              Pat Wabashaw testified that he has worked for defendant ten 
 
         years and was working with claimant on June 12, 1985 when 
 
         claimant's injury occurred.  Wabashaw acknowledged that on June 
 
         12, 1985, when he and claimant were installing a water softener, 
 
         claimant grabbed his shoulder and hollered in pain.  He never 
 
         recalled claimant complaining of pain prior to the June 12, 1985 
 
         injury.
 
         
 
              There was considerable discussion prior to the hearing as to 
 
         whether defendant is Aqua Soo Water Treatment, Inc., or 
 
         Associated Properties, Inc.  Claimant was paid with checks with 
 
         the name Aqua Soo thereon.  Claimant and the undersigned 
 
         attempted to determine the correct name and eliminate confusion 
 
         and defendant for some reason did not cooperate.  An amendment 
 
                                                
 
                                                         
 
         was allowed prior to the beginning of this hearing attempting to 
 
         correct this confusion. Burt Stoneburg owns both entities.  
 
         Claimant has worked approximately 24 years, since 1964, for 
 
         entities or enterprises performing the same type of work and 
 
         services which have been owned and operated by Burt Stoneburg.
 
         
 
              Quentin J. Durward, M.D., a neurosurgeon, wrote on April 22, 
 
         1988:
 
         
 
              He was [sic] been under the care of Dr. Harold Fletcher, who 
 
              has prescribed Pecodan [sic] which he has been taking for 
 
              more than two years for relief of his pain.
 
         
 
                   He has had a CT scan which shows circumferential 
 
              bulging of the disc material at L3-4 and L4-5 levels.  The 
 
              MRI exam performed at my direction confirms the presence of 
 
              three bulging discs and extrusion at L2-3 may be kept in 
 
              place by the adjacent ligament structures.  A myelogram may 
 
              be helpful to confirm whether there is a definite rupture 
 
              rather than the extensive bulging.  However, there is no 
 
              guarantee that surgery would relieve Mr. Rosenbaum's pain, 
 
              and if he is not interested in having surgery, which is not 
 
              unreasonable, it is not necessary for him to have a 
 
              myelogram.
 
         
 
               
 
                                                         
 
                   I understand Mr. Rosenbaum's work history is that he has 
 
              worked for Aqua Soo Water Treatment since 1964 and that his 
 
              employment has involved heavy physical labor through 1987.  
 
              He has done alot [sic] of heavy lifting and carrying of salt 
 
              and this included ascending and descending stairs while doing 
 
              so.
 
         
 
                   He does have severe degenerative disc disease which is 
 
              in part related to his work history at Aqua Soo Water 
 
              treatment.  The onset of his symptomatology, in July of 
 
              1985, is directly related to the incident described above 
 
              when he was installing a water softner [sic] and pulling on 
 
              the two pipe wrenches.  It is my opinion, within a 
 
              reasonable degree of medical certainty, that the incident in 
 
              July 1985 was an aggravation of a preexisting condition, and 
 
              that the preexisting condition related to his work history.
 
         
 
                   Absent the prospect of surgery, Mr. Rosenbaum has 
 
              reached maximum medical improvement.  It is difficult to 
 
              assign a permanent physical impairment rating based upon the 
 
              AMA guidelines for the reason that these guidelines for the 
 
              [sic] do not sufficiently take into consideration the degree 
 
              of pain from which I believe Mr. Rosenbaum is suffering and 
 
              which is consistent with the above stated diagnoses.  
 
              However, I believe he is disabled from doing any physical 
 
              work and he certainly should not do any bending.  Any lifting 
 
              should be restricted to not more than 25 pounds.
 
         
 
                   Mr. Rosenbaum's estimated permanent impairment is 15% 
 
              at this time.
 
         
 
         (Claimant's exhibit 1)
 
         
 
              Although there was evidence from claimant's testimony that 
 
         he had seen other doctors, an order issued prior to this hearing 
 
         by another deputy issued a sanction against the parties 
 
         preventing introduction of other medical evidence.
 
         
 
              Lynda Boyd, a vocational rehabilitation counselor with 
 
         Rehabilitation Professionals, Inc., testified in a deposition 
 
         that she saw nothing in claimant's records indicating any effect 
 
         that claimant's rheumatoid arthritis had on any loss of earnings 
 
         or restriction of claimant's working activities.
 
         
 
              Ms. Boyd wrote in her confidential report on July 27, 1988:
 
         
 
                   A report from Dr. Durward dated 1/11/88 indicates that 
 
              Mr. Rosenbaum was treated for an accident that occurred at 
 
              work on 6/12/85.  At that time, the client said that he 
 
              felt a "pop like a firecracker."  The client told Dr. 
 
              Durward that he experienced severe low back pain.  For five 
 
              weeks he underwent Chiropractic manipulation and the pain 
 
              improved. He went back to work, but continued to have 
 
              severe low back pain.  Prolonged standing caused pain into 
 
              the posterior thighs and heals [sic].  The client also 
 
                                                
 
                                                         
 
                   complained to Dr. Durward he had pain with walking and 
 
              climbing stairs.  Mr. Rosenbaum was taking three Percodan 
 
              tablets a day for pain and reported that he had been doing 
 
              this for 2 1/2 years.
 
         
 
                   ....
 
         
 
                   According to Dr. Durward the client's CT scan showed 
 
              some hypertrophic facet joint disease and some bulging 
 
              discs, but no evidence of stenosis or disc rupture.  Dr. 
 
              Durward's impression was that the client had facet arthritic 
 
              syndrome.
 
         
 
                   In Dr. Durward's 2/2/88 report, the client states that 
 
              lumbar spine X-rays with flection and extension demonstrated 
 
              multiple levels of degenerative disc, but particularly at 
 
              the L4-5 level.  Dr. Durward also says that there was a 
 
              retrolisthesis of L4 and L5 on extension.  Dr. Durward 
 
              indicates that a MRI scan demonstrated multiple levels of 
 
              disc degeneration and at the L2-3 there appeared to be a 
 
              retained retropulse fragment.  The physician found a 
 
              moderate degree of spinal stenosis at L4-5.  Dr. Durward's 
 
              opinion was that the client's back pain was related to 
 
              degenerative disc and facet disease and that some of the 
 
              pain may be due to the central disc at L2-3.
 
         
 
                   Dr. Durward's 4/7/88 report indicates that Mr. 
 
              Rosenbaum was continuing to work but the work was causing 
 
              his pain to worsen.  The client told the physician that if 
 
              he does nothing, his pain is tolerable.  The client said 
 
              that the pain is primarily in the back and in the bilateral 
 
              buttocks occasionally with radiation around the lower legs. 
 
              The client reported the pain increased with walking at 
 
              times.  Mr. Rosenbaum was still taking Percodan-three a 
 
              day. The physician did not recommend surgery in this 
 
              report.
 
         
 
                   Dr. Durward's April 22nd 1988 report states that the 
 
              client had low back pain with pain radiating into the 
 
              buttocks.  The doctor indicates that the client has severe 
 
              degenerative disc disease.  Dr. Durward felt that Mr. 
 
              Rosenbaum had reached maximum medical improvement and that 
 
              he was restricted from doing any bending.  The physician 
 
              stated that the client should not lift anything more than 25 
 
              pounds. Mr. Rosenbaum was given a 15% permanent impairment 
 
              rating.
 
         
 
                   Records from McKennan Hospital in Sioux Falls, South 
 
              Dakota indicate that Mr. Rosenbaum had bulging discs at the 
 
              L3-4 and L4-5 levels.  A radionuclide scan of the bone 
 
              demonstrated rheumatoid arthritis.
 
         
 
                   ....
 
         
 
              SUMMARY
 
                                                
 
                                                         
 
         
 
                   It is this Specialist's opinion that Mr. Rosenbaum has 
 
              sustained at least a 90% loss of access to the Sioux City 
 
              labor market as a direct result of his injury.  The client's 
 
              disability prevents him from returning to his past 
 
              occupations, as well as a substantial number of higher 
 
              paying employment opportunities that exist within the 
 
              construction, machine operation, crafts, production, truck 
 
              driving and manufacturing industries.  Because of Mr. 
 
              Rosenbaum's lack of formal education beyond the seventh 
 
              grade, he would need Adult Basic Education classes and a GED 
 
              in order to be competitively employed.  The client's past 
 
              experience has been in manual labor and he will no longer be 
 
              able to do this kind of work.  Rehabilitation options would 
 
              have to be SEDENTARY and LIGHT positions likely requiring 
 
              mathematical and/or reading skills.  Prior to his injury, 
 
              Mr. Rosenbaum relied upon his physical abilities in finding 
 
              jobs that did not require extensive intellectual aptitudes.  
 
              Because of the restrictions placed on Mr. Rosenbaum by his 
 
              physician, there will be a greater impact upon his 
 
              employment options then [sic] there would be if Mr. 
 
              Rosenbaum had a High School Diploma or GED.
 
         
 
                   As a water softening and service installer and previous 
 
              to that a construction laborer, Mr. Rosenbaum was able to 
 
              earn approximately $14,000 per year.  In reviewing his 
 
              present job options, this Specialist has determined that the 
 
              client's entry level wage would range from approximately 
 
              $7,000 to $11,500 per year.  Mr. Rosenbaum can expect to 
 
              sustain an immediate loss of income in the range of 20%-40%. 
 
              With respect to Vocational Rehabilitation, Mr. Rosenbaum 
 
              would benefit from receiving vocational counseling, 
 
              assistance with obtaining his GED, and job placement.
 
         
 
         (Cl. Ex. 3)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of June 12, 1985 is causally related 
 
         to the disability on which he now bases his claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
         insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted be rejected, in whole or in 
 
                                                
 
                                                         
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease; the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756, (1956).  
 
         If the claimant had a preexisting condition or disability that is 
 
         aggravated, accelerated, worsened or lighted up so that it results 
 
         in disability, claimant is entitled to recover.  Nicks v Davenport 
 
         Produce Co., 254 Iowa 130, 115 N.W.2d 812, (1962).  When an 
 
         aggravation occurs in the performance of an employer's work and a 
 
         causal connection is established, claimant may recover to the 
 
         extent of the impairment.  Ziegler v. United States Gypsum Co., 
 
         252 Iowa 613, 620, 106 N.W.2d 591, (1960).  The Iowa Supreme Court 
 
         cites, apparently with approval, the C.J.S. statement that the 
 
         aggravation should be material if it is to be compensable.  Yeager 
 
         v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 
 
         (1961); 100 C.J.S. Workmen's Compensation section 555(17)a.  An 
 
         employer takes an employee subject to any active or dormant health 
 
         impairments, and a work connected injury which more than slightly 
 
         aggravates the condition is considered to be a personal injury. 
 
         Ziegler, 252 Iowa 613, 620, 106 N.W.2d 591, and cases cited.
 
         
 
              As a claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
 
 
               
 
                                                         
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              The opinion of the supreme court in Olson, 255 Iowa 1112, 
 
         125 N.W.2d 251 (1963) at 1121, cited with approval a decision of 
 
         the industrial commissioner for the following proposition:
 
         
 
              Disability * * * as defined by the Compensation Act means 
 
              industrial disability, although functional disability is an 
 
              element to be considered . . . In determining industrial 
 
              disability, consideration may be given to the injured 
 
              employee's age, education, qualifications, experience and 
 
              his inability, because of the injury, to engage in 
 
              employment for which he is fitted.* * * *
 
         
 
              Iowa Code section 85.34(1) provides that if an employee has 
 
         suffered a personal injury causing permanent partial disability, 
 
         the employer shall pay compensation for a healing period from the 
 
         day of the injury until (1) the employee returns to work; or (2) 
 
         it is medically indicated that significant improvement from the 
 
         injury is not anticipated; or (3) until the employee is medically 
 
         capable of returning to substantially similar employment.
 
         
 
              This 50 year old claimant was injured on June 12, 1985 while 
 
         installing a water softener.  This claimant has less than a 
 
         seventh grade education and has only known manual labor jobs 
 
         since he began working at age 16 and for the approximate 24 years 
 
         has been in the water softener business requiring heavy lifting 
 
         and strenuous manual labor.  Because of the nature of defendant's 
 
         business, claimant has been an employee who has been the service 
 
         core of defendant's business and knows his work very well.  It is 
 
         obvious defendant hated to see claimant absent from work because 
 
         of the effect the loss of his work and experience would have on 
 
         defendant's business.  Claimant was a loyal employee and 
 
         continued to work for defendant under the false impression that 
 
         notwithstanding his injury, he would not receive any pay or 
 
         benefits unless he kept on working as he understood defendant had 
 
         no insurance.  Claimant was in obvious need of a weekly 
 
         paycheck.
 
         
 
              Claimant worked until March 8, 1988 at which time his pain 
 
         was so bad he could no longer continue.  Claimant took Percodan 
 
         to relieve his pain and increased the doses at times while 
 
         working. Claimant is now addicted to this drug.
 
         
 
              Claimant has been paid by defendant from the date of his 
 
         injury to December 31, 1988 except for a five week period. 
 
         Claimant has not worked for defendant beginning March 8, 1988 to 
 
         the present.  Claimant has been diagnosed as having rheumatoid 
 
         arthritis and this is basically centralized in one hand.  Claimant 
 
         has been taking gold shots which have lessened any effect this 
 
         arthritis had on claimant prior to his June 12, 1985 injury.  It 
 
         is undisputed that whatever preexisting condition claimant had 
 
                                                
 
                                                         
 
         before June 12, 1985 was not affecting claimant's work production 
 
         or earning capacity or earnings.  Claimant has not had a myelogram 
 
         which may help determine more fully claimant's condition.  
 
         Claimant has been told the possible effects that such a myelogram 
 
         could have and he was not interested in having the myelogram which 
 
         might ultimately result in surgery.  Dr. Durward indicated "There 
 
         is no guarantee that surgery would relieve Mr. Rosenbaum's pain, 
 
         and if he is not interested in having surgery, which is not 
 
         unreasonable, it is not necessary for him to have a myelogram."  
 
         Dr. Durward indicated he believed that claimant is disabled from 
 
         doing any physical work and that he should certainly do no bending 
 
         or any lifting more than 25 pounds.  He opined claimant's 
 
         impairment to be 15 percent.  Dr. Durward also indicated that the 
 
         injury was an aggravation of a preexisting condition but that that 
 
         preexisting condition related to claimant's work history.  There 
 
         is no evidence that claimant has sought work since December 31, 
 
         1988 when he was last paid by defendant nor since March 8, 1988 
 
         when he no longer worked for defendant but was still being paid.  
 
         It seems obvious that defendant was hoping that claimant would 
 
         return to work, and with claimant's work history it was obvious 
 
         claimant was motivated to work and, in fact, did work until his 
 
         condition became so bad and was relying heavily on Percodan.
 
         
 
              Lynda Boyd, the rehabilitation specialist, concluded that 
 
         based on the medical information she had and the claimant s work 
 
         restrictions, the claimant's access to the labor market has been 
 
         reduced by 90.51 percent and that he is no longer able to perform 
 
         occupations that would involve lifting over 25 pounds or bending 
 
         activities.  Ms. Boyd indicated that claimant would benefit from 
 
         receiving vocational counseling assistance without obtaining his 
 
         GED in job placement.  Ms. Boyd was hired by claimant to make an 
 
         evaluation only.  She made no attempt to objectively test 
 
         claimant for aptitudes or transferable skills.  She made no 
 
         attempt to find a job for claimant.
 
         
 
              Considering claimant's age, education, his prior work 
 
         experience, his motivation to work, his functional limitations 
 
         and restrictions, his preinjury earnings and postinjury earnings 
 
         potential, claimant has a 70 percent industrial disability.
 
         
 
              Dr. Durward indicated on April 22, 1988 that claimant had 
 
         reached maximum medical improvement.  Claimant was paid from the 
 
         date of the injury to December 31, 1988, inclusive, his full 
 
         gross weekly wages except for a five week period beginning 
 
         Memorial Day 1987 and five weeks thereafter.  Claimant actually 
 
         continued working from the date of his injury so, in fact, there 
 
         was no issue of when he returned to work.  The five weeks he lost 
 
         wages was actually a layoff.  Although there may have been a 
 
         period of healing and recovery for this claimant, he continued 
 
         working.  Dr. Durward indicated claimant had reached maximum 
 
         healing on April 22, 1988.  Dr. Durward had not seen claimant 
 
         very long prior to that date and, therefore, could not have 
 
         opined of claimant's condition earlier.  Therefore, claimant is 
 
         not entitled under the facts presented to any healing period 
 
         benefits.  A person is entitled to healing period benefits only 
 
                                                
 
                                                         
 
         until he returns to work or has reached maximum recovery, 
 
         whichever occurs first.
 
         
 
                              FINDINGS OF FACT
 
         
 
              WHEREFORE, it is found:
 
         
 
              1.  Claimant injured his back on June 12, 1985 while working 
 
         for defendant.
 
         
 
              2.  Claimant's impairment is the result of his injury on 
 
         June 12, 1985.
 
         
 
              3.  Claimant is restricted from doing physical work 
 
         involving bending or lifting more than 25 pounds.
 
         
 
              4.  Claimant has less than a seventh grade education and has 
 
         difficulty reading.
 
         
 
              5.  Claimant has done manual labor all of his working life.
 
         
 
              6.  Claimant has known no other work for the last 24 years 
 
         other than doing heavy and strenuous lifting and working in the 
 
         water softener business.
 
         
 
              7.  At 50 years of age and with claimant's restrictions and 
 
         limited education, claimant is not retrainable.
 
         
 
              8.  Claimant has a permanent impairment to the body as a 
 
         whole.
 
         
 
              9.  Claimant has a 70 percent loss of earning capacity.
 
         
 
              10.  Claimant has heavily relied upon taking drugs to 
 
         relieve his pain and physical condition so as to enable him to 
 
         work from the date of injury, June 12, 1985, to March 8, 1988.
 
         
 
              11.  Claimant has not worked since March 8, 1988.
 
         
 
              12.  Claimant was paid his full wages by defendant beginning 
 
         June 12, 1985 to December 31, 1988, inclusive, except for five 
 
         weeks in 1987.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              THEREFORE, it is concluded:
 
         
 
              Claimant's injury on June 12, 1985 arose out of and in the 
 
         course of his employment with defendant.
 
         
 
              Claimant's disability is causally connected to his injury of 
 
         June 12, 1985.
 
         
 
              Claimant has a 70 percent loss of earning capacity.
 
         
 
                                                
 
                                                         
 
              Claimant has a 70 percent industrial disability.
 
         
 
              Claimant is entitled to to healing period benefits because 
 
         he continued to work for defendant after his injury and paid his 
 
         full wages.
 
         
 
              Claimant's disability payments commence March 8, 1988.
 
         
 
                                   ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              Claimant is entitled to three hundred-fifty (350) weeks of 
 
         permanent partial disability benefits at the rate of two hundred 
 
         seventeen and 67/100 dollars ($217.67) per week beginning March 
 
         8, 1988.
 
         
 
              Claimant is entitled to no healing period benefits.
 
         
 
              Defendant shall pay accrued weekly benefits in a lump sum.
 
         
 
              Defendant shall receive credit against the permanent partial 
 
         disability awarded for forty-two point seven one four (42.714) 
 
         weeks previously paid.
 
         
 
              Defendant shall pay interest on benefits herein awarded as 
 
         set forth in Iowa Code section 85.30 beginning January 1, 1989.
 
         
 
              Defendant shall pay the cost of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendant shall file an activity report upon payment of this 
 
         award as required by this agency pursuant to Division of 
 
 
 
                                   
 
                                                         
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 27th day of March, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            BERNARD J. O'MALLEY
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Edward J. Keane
 
         Attorney at Law
 
         400 First National Bank Bldg
 
         P.O. Box 1768
 
         Sioux City, IA  51102
 
         
 
         Mr. Douglas Flom
 
         Attorney at Law
 
         400 Security Bank Bldg
 
         Sioux City, IA  51101
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1803; 1700
 
                                            Filed March 27, 1989
 
                                            Bernard J. O'Malley
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RUSSELL ROSENBAUM,
 
         
 
              Claimant,                               File No. 846923
 
         
 
         vs.                                       A R B I T R A T I 0 N
 
         
 
         ASSOCIATED PROPERTIES, INC.,                 D E C I S I 0 N
 
         
 
              Employer,
 
              Defendant.
 
         
 
         
 
         1803
 
         
 
              Claimant awarded 70% industrial disability subsequent to an 
 
         injury to claimant's back.
 
         
 
         1700
 
         
 
              Defendant employer was uninsured.  Employer given credit for 
 
         the number of weeks he paid claimant gross wages after claimant 
 
         discontinued working for defendant due to his disability.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         ROBERT J. SCHULTZ,
 
         
 
            Claimant 
 
         
 
         VS.
 
                                                 File No. 846927
 
         VOLT INFORMATION SCIENCES,
 
                                                  A P P E A L
 
            Employer,
 
                                                  R U L I N G
 
         ROYAL INSURANCE,
 
         
 
             Insurance Carrier,
 
             Defendants.
 
         _________________________________________________________________
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              The Veterans Administration (hereinafter VA) appeals from a 
 
         proposed ruling denying the VA's claim for medical services 
 
         provided to Robert J. Schultz.  The deputy ruled that under Iowa 
 
         Code section 85.26(4), the VA lacked standing to maintain a claim 
 
         for medical services.  The deputy also ruled that no statutory 
 
         hospital lien in workers' compensation matters exists in Iowa 
 
         law.
 
         
 
              The VA has filed a brief on appeal.
 
         
 
                                      ISSUE
 
         
 
              The VA states the following issue on appeal:  "Did the
 
         Deputy Industrial Commissioner err in holding that 85.26(4) 
 
         precludes a direct action by the VA to recover for the value of 
 
         medical services provided?"
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The VA has submitted copies of three bills for medical 
 
         treatment provided to Robert Schultz from June 27, 1985 through 
 
         July 22, 1986.  The total amount of these bills is $111,729.00. 
 
         In the VA's petition for hospital lien the amount of the lien 
 
         sought is stated to be $176,772.00.
 
         
 
         
 
         
 
                                APPLICABLE LAW
 
         
 
              "No claim or proceedings for benefits shall be maintained 
 
              by
 
         
 
         
 
         any person other than the injured employee, his or her dependent 
 
         or his or her legal representative if entitled to benefits." Iowa 
 
         Code section 85.26(4), 1983.
 
         
 

 
              The industrial commissioner has interpreted section 85.26(4) 
 
         in Poindexter v. Grant's Carpet Service and Milbank Insurance 
 
         Co., Appeal Ruling, filed August 10, 1984.
 
         
 
                   Appellant is a professional corporation seeking 
 
              payment of medical costs incurred by Brian Poindexter, 
 
              the injured worker.  Appellant contends that Mr. 
 
              Poindexter has executed a valid assignment of his 
 
              workers' compensation medical benefits to the 
 
              corporation, and it thus has an economic interest that 
 
              renders it an indispensable party to the claim.
 
         
 
                   The dispute arises from a petition and 
 
              accompanying application for determination filed by the 
 
              employer and insurance carrier which questioned the 
 
              reasonableness of medical fees which were submitted in 
 
              conjunction with a work injury.  A previously filed 
 
              memorandum of agreement has established an employment 
 
              relationship between Poindexter and Grant's Carpet 
 
              Service, and that the injury arose out of and in the 
 
              course of employment.  The employer's final report 
 
              indicates that healing period and permanent partial 
 
              disability benefits have been paid.
 
         
 
                   It is established law that the claimant has the 
 
              burden of proving his claim for benefits.  By the 
 
              filing of a memorandum of agreement, the injured worker 
 
              is relieved of a showing that the injury was work 
 
              related, but his burden of proving medical costs 
 
              remains.  If the injured employee seeks payment of 
 
              medical benefits and the costs are in dispute, it is 
 
              his responsibility, by statute, to initiate a 
 
              proceeding which gives him the opportunity to prove his 
 
              claim against the employer.  He must show that the 
 
              medical costs are causally related to the work injury 
 
              and that they are reasonable and necessary.  No party 
 
              can make this showing for him, and the employer is 
 
              under no obligation to render payment until the worker 
 
              has sustained his burden.
 
         
 
                   In the instant case, no claim for medical payment 
 
              has been filed by Brian Poindexter.  Review of the 
 
              applicable statutory provisions reveals no statutory 
 
              authority which gives P.S.I. standing to proceed under 
 
              compensation law directly against the employer.  The 
 
              Iowa Supreme Court in Brauer v. J. C. White Concrete 
 
              Co., 253 Iowa 1304, 115 N.W.2d 702 (1962) ruled that a 
 
              party who rendered medical or hospital services could 
 
              assert a claim therefor before the industrial 
 
              commissioner.  The legislature acted with utmost 
 
              celerity to overturn the holding of the Iowa Supreme 
 
              Court in the Brauer decision in the session of the 
 
              general assembly immediately after the filing of the 
 
              decision.  They enacted: "No claim or proceedings for 
 
              benefits shall be maintained by any person other than 
 
              the injured employee his dependent or his legal 
 
              representative, if entitled to benefits." Acts of the 
 
              Regular Session 60 GA (1963), Chapter 87, 3.
 
         
 
                   This provision remains in the law today in the 
 
              same form (although with gender reference corrected) as 
 
              Code of Iowa section 85.26(4).
 
         
 
                   Although appellant, like any creditor, has a 
 
              financial interest in expediting a determination of 
 
     
 
         
 
         
 
         
 
         
 
         SCHULTZ V. VOLT INFORMATION SCIENCES
 
         Page   3
 
         
 
         
 
              payment due, such interest does not confer standing to 
 
              participate in an action that has not properly been 
 
              initiated or to attempt to relieve a potential claimant 
 
              of his rightful burden of proof by initiating a 
 
              discovery proceeding against the employer and the 
 
              insurer.  The deputy was correct in finding that P.S.I. 
 
              is not a party to this action and has no standing to 
 
              sue in claimant's name.
 
         
 
         See also Veteran's Administration v. Chase Manufacturing, Appeal 
 
         Decision filed September 9, 1987.
 
         
 
                                     ANALYSIS
 
         
 
              As indicated, the Poindexter rationale continues to be this 
 
         agency's interpretation of section 85.26(4). The deputy was 
 
         correct in ruling that the VA lacks standing to maintain their 
 
         claim before this agency.
 
         
 
              This agency has no jurisdiction to interpret whether federal 
 
         law preempts 85.26(4).
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
              THEREFORE, it is ordered that the Veterans Administration's 
 
         petition for hospital lien is dismissed.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              Signed and filed this 29th day of October, 1987.
 
         
 
         
 
         
 
         
 
                                                 DAVID  E.LINQUIST
 
                                              INDUSTRIAL COMMISSIONER
 
         Copies To:
 
         
 
         Mr. Dennis L. Hanssen
 
         Attorney at Law
 
         2700 Grand Avenue, Suite 111
 
         Des Moines, Iowa 50312
 
         
 
         Ms. Dorothy L. Kelley
 
         Attorney at Law
 
         1000 Des Moines Bldg.
 
         Des Moines, Iowa 50309
 
         
 
         Mr. William J. O'Keefe
 
         District Counsel
 
         Veterans Administration
 
         210 Walnut Street
 
         Des Moines, Iowa 50309
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1402.60 - 2700
 
                                                 Filed October 29, 1987
 
                                                 DAVID E. LINQUIST
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         ROBERT J. SCHULTZ,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 File No. 846927
 
         VOLT INFORMATION SCIENCES,
 
                                                   A P P E A L
 
              Employer,
 
                                                   R U L I N G 
 
         and
 
         
 
         ROYAL INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         1402.60 - 2700
 
         
 
              Veterans Administration brought this proceeding to recover 
 
         payment for medical services provided to Robert Schultz.  Section 
 
         85.26(4) limits claims for benefits to injured employees.  See 
 
         Poindexter v. Grant's Carpet Service and Milbank Insurance Co., 
 
         Appeal Ruling, filed August 10, 1984.  See also Veterans 
 
         Administration v. Chase Manufacturing Co., Appeal Ruling 1987.  
 
         This agency does not have jurisdiction to determine whether 
 
         federal law preempts 85.26(4).