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                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DONNA K. KIRKBRIDE,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 847423
 
            WELLBORN INDUSTRIES, LTD.,    :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            USF&G,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Donna K. 
 
            Kirkbride, claimant, against Wellborn Industries, Ltd., 
 
            employer, and United States Fidelity & Guarantee Company, 
 
            insurance carrier, to recover benefits under the Iowa 
 
            Workers' Compensation Act as a result of an injury sustained 
 
            on March 10, 1987.  This matter came on for hearing before 
 
            the undersigned deputy industrial commissioner on April 15, 
 
            1991.  The matter was considered fully submitted at the 
 
            close of the hearing.  The record in this case consists of 
 
            the testimony of claimant, Donna Kirkbride, Kathryn Schrot, 
 
            Jerry Lattimer and Rick Jorgenson; and joint exhibits 1-42 
 
            and A.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and order submitted 
 
            and approved April 15, 1991, the following issues are 
 
            presented for resolution:
 
            
 
                 1.  The extent of claimant's entitlement to permanent 
 
            partial disability benefits stipulated to be an industrial 
 
            disability to the body as a whole; and,
 
            
 
                 2.  The applicability of the odd-lot doctrine.
 
            
 
                 Defendants assert the defense of unreasonable refusal 
 
            to undergo medical treatment.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, the arguments made and the 
 
            evidence contained in the exhibits, and makes the following 
 
            findings.
 
            
 

 
            
 
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                 The parties did not dispute that claimant sustained an 
 
            injury on March 10, 1987, which arose out of and in the 
 
            course of employment with employer.  The parties also agreed 
 
            that claimant's injury is a cause of temporary and permanent 
 
            disability.  Defendants have paid claimant healing period 
 
            benefits from March 10, 1987 through February 12, 1989 and 
 
            from June 5, 1989 through January 11, 1990, as well as 
 
            permanent partial disability benefits from February 13, 1989 
 
            through June 4, 1989.  The extent of entitlement to weekly 
 
            compensation for permanent disability is disputed.
 
            
 
                 Claimant was born on October 11, 1954 and completed the 
 
            ninth grade of school.  She received her GED certificate on 
 
            May 27, 1989, during the course of vocational rehabilitation 
 
            efforts.  Prior to working at Wellborn Industries, claimant 
 
            worked as a cashier, salesperson and parts tester.  On 
 
            October 3, 1986, she commenced employment at Wellborn as a 
 
            circuit board tester.  On March 10, 1987, she was pulled off 
 
            her regular job and put in the shipping department.  On that 
 
            day, she was packaging circuit boards when some of the 
 
            boards on the second shelf fell, landing on the top of her 
 
            left foot.  There is a conflict in the record as to the 
 
            actual weight of these boards.  Mr. Lattimer, Human Resource 
 
            Director at Wellborn, testified that the boards weighed one 
 
            pound at most while claimant testified that a 50 pound stack 
 
            of boards fell on her foot.  In any event, she testified she 
 
            had immediate pain in her foot with some swelling but 
 
            continued working.  The next day she had increased pain, 
 
            discomfort and swelling and saw Tim Mead, M.D., an 
 
            orthopedist at Park Clinic in Mason City, Iowa.  Dr. Mead 
 
            took x-rays which were negative.  He diagnosed deep 
 
            contusions and advised her to elevate the foot and apply 
 
            ice.  She was off work for a few days and returned to work 
 
            on Friday.  She continued to have marked pain and returned 
 
            to Dr. Mead's office where she saw Mike Crane, M.D., his 
 
            orthopedic partner.  Dr. Crane reviewed the x-rays and 
 
            assured her that the swelling would gradually resolve and 
 
            suggested that she return to work on Monday.  However, the 
 
            pain and discomfort increased and she recontacted Dr. Crane 
 
            and was begun on a two week physical therapy program, with 
 
            improvement in her condition.  She returned to work but 
 
            again had an increase of pain.  On her own, she decided to 
 
            see Dr. Steve Brau, a podiatrist, who diagnosed a 
 
            "sympathetic syndrome."  He injected her foot and ankle with 
 
            some improvement of her symptoms but no relief of pain.  
 
            Pain and swelling in her foot was so severe she required 
 
            crutches in order to ambulate.  She then began noting pain 
 
            going up her leg from the foot and Dr. Crane referred her to 
 
            Sterling J. Laaveg, M.D., an orthopedic surgeon.  Dr. Laaveg 
 
            initially saw claimant on May 12, 1987.  On examination, he 
 
            noted objective findings of a cool foot, dysesthetic 
 
            sensations, mottled skin appearance and slight decreased 
 
            motion of the foot and ankle joints.  Follow-up evaluations 
 
            revealed persistent and significant pain and discomfort in 
 
            the left foot and ankle and claimant was referred to his 
 
            associate, T. A. Thomsen, M.D., for further evaluation.  
 
            Both physicians recommended a lumbar sympathectomy.  This 
 
            was performed on March 7, 1988 (Exhibits 1-4, 5 & 8).
 

 
            
 
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                 In addition to pain and discomfort in her left foot and 
 
            ankle, claimant developed a trochanteric bursitis of the 
 
            left hip secondary to her limping gait.  An x-ray of her 
 
            left hip taken on October 26, 1987, revealed a spina bifida 
 
            of the sacrum and L-5.  She was treated at Mercy Hospital 
 
            Medical Center Pain Clinic from September 2 through 
 
            September 30, 1988.  While at Mercy, she was seen by Dean 
 
            VanSteenwyk, D.O., an orthopedist, who discussed the 
 
            possibility of another lumbar sympathetic block and the fact 
 
            that she had a failed previous sympathetic block and surgery 
 
            which had distorted the anatomy in her left lower extremity, 
 
            lowering her chance of success.  She was also seen by Dr. 
 
            Weatherwax regarding an orthopedic left foot and ankle 
 
            examination.  He diagnosed resolving sympathetic dystrophy 
 
            of the left foot with well established pain pattern.  He 
 
            recommended intrinsic muscle exercises and an arch support.  
 
            She was counseled as to diet and proper nutrition and 
 
            strongly advised to cease smoking.  At the end of the 
 
            session, it was felt that she was significantly improved and 
 
            that she could return to work restricted to a six hour day 
 
            for two or three weeks and then reevaluated (Ex. 13).
 
            
 
                 Due to increased hip pain, Dr. Laaveg approved claimant 
 
            for physical therapy treatments from November 30 through 
 
            December 12, 1988 (Ex. 15).  On February 13, 1989, Dr. 
 
            Laaveg reported that claimant had reached maximum healing.  
 
            He gave her a final physical impairment rating of five 
 
            percent of the lower extremity for her chronic rated 
 
            trochanteric bursitis or two percent person as a whole and 
 
            30 percent of the lower extremity due to reflex sympathetic 
 
            dystrophy with loss of motion of the ankle or a whole person 
 
            rating of 12 percent.  The combined whole person final 
 
            physical impairment rating translated to 14 percent.  She 
 
            was also given work restrictions at this time limiting 
 
            standing for more than 30 minutes and lifting more than 20 
 
            pounds.  She was precluded from repetitious bending or 
 
            twisting while in the standing position.  She was released 
 
            to return to part-time employment, no more than four hours 
 
            per day, gradually to increase as tolerated (Ex. 16).
 
            
 
                 Claimant then made application to the industrial commis
 
            sioner for examination by John R. Walker, M.D.  The 
 
            application was approved on April 17, 1989, and the claimant 
 
            was examined by Dr. Walker on May 15, 1989.  After reviewing 
 
            the claimant's medical history and noting her complaints, 
 
            Dr. Walker conducted a physical examination and reviewed 
 
            x-rays of the left hip, pelvis, lumbar spine and left lower 
 
            extremity.  He concluded that claimant has a trochanteric 
 
            bursitis and recommended excision of the trochanteric bursa.  
 
            He also concluded that the sympathectomy, although of some 
 
            benefit, did not clear up all of her sympathetic problems, 
 
            probably because of her underlying spina bifida occulta.  He 
 
            further noted that x-rays of the left patella were negative 
 
            and x-rays of the tibia, fibula and ankle are within normal 
 
            limits.  Some irregular osteoporosis, mild to moderate, was 
 
            evident in the left foot.  The left tibia fibula was within 
 

 
            
 
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            normal limits.  Dr. Walker opined as follows:
 
            
 
                 It is my opinion that this patient has a 
 
                 permanent, partial impairment of 25% of the body 
 
                 as a whole based on all of the diagnoses that are 
 
                 listed above.  The congenital anomaly consisting 
 
                 of the spina bifida occulta has no part in this 
 
                 evaluation and as far as I am concerned, there is 
 
                 no true impairment or disability because of it in 
 
                 itself.
 
            
 
            (Ex. 19, page 7)
 
            
 
                 Claimant was hospitalized at St. Joseph Mercy Hospital 
 
            from June 5 through June 9, 1989.  On June 5, she underwent 
 
            excision of the greater trochanteric bursa (Ex. 21).
 
            
 
                 On November 16, 1989, Dr. Laaveg referred claimant to 
 
            the Occupational Medicine Clinic at St. Joseph Mercy 
 
            Hospital for evaluation and a work conditioning program.  
 
            Claimant presented with pain in the left lateral low back 
 
            and left hip over the incision and pain in the left lower 
 
            leg and foot.  At the end of seven weeks of work 
 
            conditioning/job simulation, she was discharged from the 
 
            program on January 12, 1990, demonstrating significant 
 
            progress including increased hip range of motion, left hip 
 
            and upper extremities strength, cardiovascular endurance and 
 
            improved tolerance for functional activities performed while 
 
            sitting and standing (Ex. 23).
 
            
 
                 During the course of pursuing social security 
 
            disability benefits, claimant was referred by the Disability 
 
            Determination Services to Sant M.S. Hayreh, M.D., 
 
            neurologist, for evaluation on December 8, 1989.  Dr. Hayreh 
 
            reported, in pertinent part, as follows:
 
            
 
                 On examination of lower extremities, she has mild 
 
                 tenderness on depalpation over the left foot and 
 
                 left leg.  Otherwise, no obvious muscle tenderness 
 
                 was seen.  Muscle tone and strength was normal in 
 
                 all groups of muscles, except mild diffuse 
 
                 give-away type of weakness in all groups of 
 
                 muscles in left lower extremity, especially left 
 
                 ankle dorso-flexion and plantar flexion.  DTR's 
 
                 reflexes showed KJ 2/2, AJ 0/0; Plantar's response 
 
                 bilaterally flexor.  Sensory examination was 
 
                 essentially normal to light touch, pin prick and 
 
                 vibration.  The arterial pulses were normally 
 
                 palpable.  Straight-leg raising sign was negative 
 
                 bilaterally.  Lateral hip rotation was negative 
 
                 bilaterally.  There was very minimal tenderness on 
 
                 decompression over the lower lumbar spine.  She 
 
                 has a dimple at L5 level due to spina bifida.  She 
 
                 walks with a cane and walks with a limp on the 
 
                 left side.  She could walk on the toes and heels, 
 
                 but did not do Tandem walking for me.  The Romberg 
 
                 sign was negative.  She did not do any squatting 
 
                 or forward bending for me.
 
            
 

 
            
 
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            (Ex. 24, p. 2)
 
            
 
                 Dr. Hayreh commented in his summary that the exact 
 
            cause of the pain in her left foot is unclear and the 
 
            etiology of the pain in her left hip is unclear because 
 
            clinically she had no objective findings.  He stated that 
 
            she may have some difficulty performing activity requiring 
 
            prolonged standing and walking (Ex. 24).
 
            
 
                 A residual physical functional capacity assessment made 
 
            by Gary J. Cromer, M.D., for the Social Security 
 
            Administration notes that "considering objective findings 
 
            and disproportionate symptomatology, light work as 
 
            previously outlined not precluded."  Dr. Cromer felt that 
 
            based on the lack of significant neurologic impairment and 
 
            exaggerated symptoms, claimant is capable of frequently 
 
            lifting and carrying up to 10 pounds; standing and/or 
 
            walking about six hours in an eight-hour work day; sitting 
 
            (with normal breaks) for a total of six hours in an 
 
            eight-hour work day; and, occasionally lifting and/or 
 
            carrying up to 20 pounds.  Dr. Cromer indicated that the 
 
            limitations cited by physicians who have either treated or 
 
            examined claimant appear to be based on subjective symptoms 
 
            and are not supported by objective findings (Ex. 25).
 
            
 
                 On January 11, 1990, Dr. Laaveg reported that claimant 
 
            had reached maximum healing.  He gave her a final physical 
 
            impairment rating of 15 percent of the lower extremity which 
 
            is a whole person rating of six percent and 30 percent of 
 
            the hip which is a whole person rating of 12 percent.  Her 
 
            combined rating equaled 17 percent.  In addition, Dr. Laaveg 
 
            stated as follows:
 
            
 
                 The patient should not be in a job in which she 
 
                 would lift or carry over 10 pounds other than 
 
                 occasionally.  She should not be required to do 
 
                 prolonged sitting, prolonged standing or prolonged 
 
                 walking i.e. no longer than 60 minutes at any one 
 
                 position without being able to change position.  
 
                 She cannot work in cold environments.  She should 
 
                 do no repetitious bending or twisting.  She cannot 
 
                 climb or crawl.  She cannot do repetitious 
 
                 activities with her feet.  The patient is attend
 
                 ing classes to obtain ability to work as a 
 
                 clerical person and I think this is reasonable.
 
            
 
            (Ex. 28)
 
            
 
                 On February 5, 1990, Wellborn Industries presented to 
 
            Dr. Laaveg a "pusher" job description in the Dry Film 
 
            Department which takes into consideration the physical 
 
            limitations imposed.  Dr. Laaveg approved this position and 
 
            advised that the claimant start at a four hour shift for two 
 
            weeks and then slowly advance to an eight-hour day (Ex. 30).
 
            
 
                 Claimant testified that she returned to work for two 
 
            hours on April 23, 1990, and found that she could not 
 
            tolerate the physical exertion required of a pusher.  She 
 
            went to see Dr. Laaveg and on April 27, 1990, he reported, 
 
            without explanation, that claimant "is unable to return to 
 

 
            
 
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            work" due to left hip bursitis and left leg sciatica (Ex. 
 
            32).
 
            
 
                 On June 4, 1990, claimant was seen by David W. Beck, 
 
            M.D., neurosurgeon, at the request of Dr. Hayreh.  He 
 
            reported that:
 
            
 
                 On examination she has a somewhat atrophic left 
 
                 leg.  She has weakness in plantar and 
 
                 dorsiflexion.  The entire leg appears to be weak 
 
                 on exam, but it hurts her so much to test it I am 
 
                 not sure how much is effort related.  Straight leg 
 
                 raising test is negative.  She has a very antalgic 
 
                 gait.
 
            
 
                 MRI scan is unremarkable except for the 
 
                 meningocele.  There is no evidence of herniated 
 
                 disc.
 
            
 
            (Ex. 33)
 
            
 
                 Dr. Beck opined that "I think Donna has a causalgic 
 
            type pain which is quite miserable.  I told her that my 
 
            recommendation is a dorsal column stimulator....The dorsal 
 
            column stimulation for causalgic type pain is very 
 
            successful, and I encouraged her to do this.  She has had 
 
            some relief with a TENS unit." (Ex. 33)
 
            
 
                 On June 28, 1990, claimant was seen at Mercy Hospital 
 
            Nerve Block Center for evaluation regarding the feasibility 
 
            of placement of a dorsal column stimulator for pain relief 
 
            in the left lower extremity.  She was examined by Dana L. 
 
            Simon, M.D.  Claimant presented with complaints of pain in 
 
            the left lower extremity which she described as a constant 
 
            aching, but not necessarily burning in all locations.  She 
 
            stated that her pain level is not very severe and she has 
 
            learned to live with it.  Dr. Simon opined that while 
 
            claimant may be a reasonably good candidate for dorsal 
 
            column stimulation, there remain several reservations.  Dr. 
 
            Simon stated that this decision is between claimant and Dr. 
 
            Beck (Ex. 34).
 
            
 
                 On June 6, 1990, claimant was examined by Dr. Ken B. 
 
            Washburn.  After reviewing the claimant's medical history 
 
            and noting her complaints, Dr. Washburn conducted a physical 
 
            examination and concluded that claimant has a 12 percent 
 
            disability of the whole person secondary to reflex 
 
            sympathetic dystrophy of the left foot, left hip bursitis 
 
            and low back strain.  Dr. Washburn commented that "it is 
 
            rather unusual that the patient has not developed any 
 
            osteoporosis of the left foot if she is only standing on the 
 
            left foot for 10 minutes every day."  He indicated that she 
 
            could handle a job where she is allowed to alternate between 
 
            sitting and standing (Ex. 35).
 
            
 
                 On August 21, 1990, Dr. Laaveg reported that claimant 
 
            had reached maximum healing and her final physical 
 
            impairment rating is unchanged.  He opined that claimant 
 
            cannot return to work (Ex. 37).
 
            
 

 
            
 
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                 Finally, it is noted that claimant worked in 
 
            conjunction with Priscilla Waitek and Richard Jorgenson, 
 
            rehabilitation specialists, from November 12, 1987 through 
 
            August 21, 1990.  Mr. Jorgenson testified that he 
 
            accompanied claimant to Dr. Laaveg's office on August 21, 
 
            1990, and at that time, she told Dr. Laaveg she could not 
 
            work any longer and he apparently agreed with her.  He 
 
            stated that it was his impression that the pusher job at 
 
            Wellborn was always available to claimant on a flexible 
 
            bases to accommodate her restrictions.  He admitted, 
 
            however, that it is possible claimant was not aware of this 
 
            open-ended offer by Wellborn.
 
            
 
                 Mr. Gerald Edward Lattimer, Human Resource Director at 
 
            Wellborn, testified that the pusher job exists today and is 
 
            available to claimant at $5.00 an hour plus $.50 an hour pay 
 
            shift differential after 1:00 p.m.
 
            
 
                 Kathryn Schrot, a rehabilitation consultant, also 
 
            testified at the hearing.  She stated she met with claimant 
 
            on November 9, 1990, and reviewed all of the medical records 
 
            in this case.  It was her opinion that claimant is capable 
 
            of finding but not sustaining employment.  On 
 
            cross-examination, she indicated that claimant could perform 
 
            the pusher position if the job required sitting between 30 - 
 
            40 minutes at a time.  She stated that claimant's ability to 
 
            sustain work depends upon the amount of pain she encounters.  
 
            She admitted she did not talk to claimant's employer and she 
 
            was not aware of any unwillingness on their part to be 
 
            flexible or to get claimant back to work.
 
            
 
                                conclusions of law
 
            
 
                 Since the parties do not dispute claimant sustained an 
 
            injury which arose out of and in the course of her 
 
            employment or that the injury is the cause of both temporary 
 
            and permanent disability, it is necessary to consider only 
 
            the issue of the extent of that permanent disability which 
 
            would include the related issue of whether or not claimant 
 
            is an odd-lot employee as contemplated by Guyton v. Irving 
 
            Jensen Co., 373 N.W.2d 101, 105 (Iowa 1985).
 
            
 
                 Under the odd-lot doctrine, which was formally adopted 
 
            by the Iowa Supreme Court in Guyton, supra, a worker becomes 
 
            an odd-lot employee when an injury makes the worker 
 
            incapable of obtaining employment in any well-known branch 
 
            of the labor market.  An odd-lot worker is thus totally 
 
            disabled if the only services the worker can perform are so 
 
            limited in quality, dependability, or quantity that a 
 
            reasonably stable market for them does not exist.  Id., 
 
            citing Lee v. Minneapolis Street Railway Company, 230 
 
            Minn.315, 320, 41 N.W.2d 433, 436 (1950).  The rule of odd-
 
            lot allocates the burden of production of evidence.  If the 
 
            evidence of degree of obvious physical impairment, coupled 
 
            with other facts such as claimant's mental capacity, edu
 
            cation, training or age, places claimant prima facie in the 
 
            odd-lot category, the burden should be on the employer to 
 
            show that some kind of suitable work is regularly and 
 
            continuously available to the claimant.  Certainly in such 
 
            cases it should not be enough to show that claimant is 
 

 
            
 
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            physically capable of performing light work and then round 
 
            out the case for noncompensable by adding a presumption that 
 
            light work is available.  Guyton, 373 N.W.2d at 105.
 
            
 
                 When a worker makes a prima facie case of total 
 
            disability by producing substantial evidence that the worker 
 
            is not employable in the competitive labor market, the 
 
            burden to produce evidence of suitable employment shifts to 
 
            the employer.  If the employer fails to produce such 
 
            evidence and the trier of fact finds the worker falls in the 
 
            odd-lot category, the worker is entitled to a finding of 
 
            total disability.  Even under the odd-lot doctrine, the 
 
            trier of fact is free to determine the weight and 
 
            credibility of the evidence in determining whether the 
 
            worker's burden of persuasion has been carried.  Only in an 
 
            exceptional case would evidence be sufficiently strong to 
 
            compel a finding of total disability as a matter of law.  
 
            Guyton, 373 N.W.2d at 106.  The court went on to state:
 
            
 
                    The commissioner did not in his analysis 
 
                 address any of the other factors to be considered 
 
                 in determining industrial disability.  Industrial 
 
                 disability means reduced earning capacity.  Bodily 
 
                 impairment is merely one factor in a gauging 
 
                 industrial disability.  Other factors include the 
 
                 worker's age, intelligence, education, 
 
                 qualifications, experience, and the effect of the 
 
                 injury on the worker's ability to obtain suitable 
 
                 work.  See Doerfer Division of CCA v. Nicol, 359 
 
                 N.W.2d 428, 438 (Iowa 1984).  When the combination 
 
                 of factors precludes the worker from obtaining 
 
                 regular employment to earn a living, the worker 
 
                 with only a partial functional disability has a 
 
                 total disability.  See McSpadden v. Big Ben Coal 
 
                 Co, 288 N.W.2d 181, 192 (Iowa 1980).
 
            
 
                 The industrial commissioner has frequently held that a 
 
            claimant must demonstrate a reasonable effort to secure 
 
            employment in the area of his or her residence as part of a 
 
            prima facie showing that he or she is an odd-lot employee.  
 
            If a claimant has made no attempt to find work, then he 
 
            cannot be determined to be an odd-lot employee.  Emshoff v. 
 
            Petroleum Transportation Services, Inc., file number 753723 
 
            (Appeal Decision March 31, 1987); Collins v. Friendship 
 
            Village, Inc., file no. 679258 (Appeal Decision October 31, 
 
            1988).  Claimant clearly has not met that burden in this 
 
            case.  By her admission, claimant has not looked for work 
 
            since March 1989.  Claimant testified that she worked as a 
 
            pusher for two hours on April 23, 1990, but was unable to 
 
            continue working afterwards.  Claimant cannot meet her 
 
            burden with one unsuccessful attempt to return to work with 
 
            defendant employer.  Claimant also cannot meet this burden 
 
            simply by testifying that she cannot think of any work she 
 
            is capable of performing when she has made no attempt to 
 
            secure employment.  Furthermore, claimant's vocational 
 
            expert merely speculated that while claimant is able to 
 
            obtain employment, she is incapable of sustaining 
 
            employment.  Employer testified that the pusher position is 
 

 
            
 
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            continuously available to claimant and they are willing to 
 
            be flexible and accommodating of her restrictions.  Claimant 
 
            has not pursued any further contacts with employer.  
 
            Therefore, it cannot be concluded that claimant is an 
 
            odd-lot employee as contemplated by Guyton, supra, as 
 
            claimant's attempt to secure employment falls far short of 
 
            those exhibited in that case.
 
            
 
                 Claimant has, however, clearly demonstrated she 
 
            sustained an industrial disability as a result of the injury 
 
            on March 10, 1987.  Medical practitioners who have examined 
 
            and/treated claimant have rendered opinions on impairment 
 
            ranging from 12 to 25 percent and have imposed restrictions 
 
            on her employability.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 
 
            Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 

 
            
 
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            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985);  Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 Claimant, age 36 at the time of the hearing, has a GED 
 
            certificate with no other formal education experience.  
 
            Claimant has worked as a cashier, salesperson and 
 
            electronics tester/inspector.  Claimant has work 
 
            restrictions from Dr. Laaveg, her treating physician, which 
 
            include no sitting or standing for more than 30 to 40 
 
            minutes at any one time; no repetitious bending or twisting; 
 
            no work in cold environments; no lifting over 10 pounds or 
 
            carrying over 5 pounds; or working any one time of more than 
 
            an hour to two hours (Ex. 37).  The pusher position at 
 
            Wellborn Industries which has consistently been made 
 
            available to claimant accommodates her restrictions.  In 
 
            fact, Ms. Schrot testified that this job would not require 
 
            her to sit for longer than 30 to 40 minutes at any one time.  
 
            Since there is a job available to claimant through employer, 
 
            she cannot be found totally and permanently disabled.  The 
 
            industrial commissioner stated in Gallardo v. Firestone Tire 
 
            Company, File No. 643357 (Appeal Decision Filed October 21, 
 
            1987), that an employer's repeated effort to retain claimant 
 
            as an employee after injury and to accommodate medical 
 
            restrictions resulting therefrom reduces the amount of 
 
            claimant's industrial disability.  However, it is unclear 
 
            whether defendants made any effort prior to trial to notify 
 
            claimant that the pusher position is always available to 
 
            her.  Nevertheless, claimant's efforts in this regard have 
 
            not been very aggressive either.
 
            
 
                 It is difficult, by the evidence presented in this 
 
            case, to make a definitive judgment on claimant's motivation 
 
            simply because such evidence on this issue is so 
 
            contradictory.  Claimant had a stable work history from 1972 
 
            through 1977 and from 1984 until her injury in 1987.  
 
            Claimant has cooperated in rehabilitative services through 
 
            defendants.  At the hearing, she did not appear distracted 
 
            by her pain nor unable to concentrate on the proceedings.  
 
            Nevertheless, she is unwilling to pursue employment with 
 
            employer.  Her subjective complaints of pain are 
 
            disproportionate to the clinical and laboratory findings.
 
            
 
                 The evidence clearly establishes that claimant has 
 
            suffered both a loss of earnings as a result of her injury 
 
            and a loss of earning capacity.  With the restrictions 
 
            imposed by Dr. Laaveg, claimant would have a difficult time 
 
            performing most occupations.  Nevertheless, the fact that 
 
            there is a job available to her at Wellborn Industries 
 
            certainly reduces the amount of her industrial disability.  
 
            It was Dr. Laaveg's impression that claimant cannot sit or 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            be attentive in any one position without increasing pain and 
 
            discomfort.  This was not evident at the hearing.  Claimant 
 
            was able to sit throughout the course of a four hour morning 
 
            session, sitting/standing every hour in order to achieve 
 
            maximum comfort but without diverting her attention from the 
 
            matter at hand.  Claimant was clearly focused and did not 
 
            appear in such extreme pain as not to be able to 
 
            concentrate.  Considering than all the elements of 
 
            industrial disability, it is determined that claimant has 
 
            established a permanent partial disability of 25 percent for 
 
            industrial purposes entitling her to 125 weeks of permanent 
 
            partial disability benefits.
 
            
 
                 Defendants raise the defense of unreasonable refusal to 
 
            undergo medical treatment.  Defendants assert that claimant 
 
            has unreasonably refused implantation of a dorsal column 
 
            stimulator.  While an unreasonable refusal of proffered 
 
            medical benefits can result in a loss of weekly benefits;  
 
            Johnson v. Tri-City Fabricating and Welding Company, 
 
            Thirty-third Biennial Report of the Iowa Industrial 
 
            Commissioner 179 (Appeal Decision 1977),  failure to undergo 
 
            surgery which carries some significant risk in the outcome 
 
            of which is not altogether certain does not represent an 
 
            unreasonable refusal of medical care.  Arnaman v. 
 
            Mid-American Freight Lines, I-3 Iowa Industrial Commissioner 
 
            Decisions 497 (1985); Barkdoll v. American Freight System, 
 
            Inc., File Nos. 778471, 816913 (Appeal Decision, June 28, 
 
            1988).  Although Dr. Beck recommended the dorsal column 
 
            stimulator implantation, he admitted that it may not benefit 
 
            all of claimant's symptoms.  Furthermore, in his experience 
 
            with patients who have had this procedure, long term 
 
            benefits have been achieved in 75 percent of cases.  
 
            Claimant testified that she is fearful of undergoing another 
 
            surgical procedure at this time unless she could be assured 
 
            of 100 percent effectiveness.  In any event, the undersigned 
 
            concludes that claimant's unwillingness to undergo implan
 
            tation is not an unreasonable refusal of medical care to 
 
            justify a loss of weekly benefits.
 
            
 
                 The final issue for resolution is payment of medical 
 
            costs under Iowa Code section 85.27 and transportation 
 
            expenses incurred for such services.  On March 17, 1989, 
 
            claimant filed an application for medical examination by 
 
            John R. Walker, M.D., under Iowa Code section 85.39.  
 
            Claimant's request was approved on April 17, 1989 and a 
 
            ruling issued ordering defendants to reimburse claimant for 
 
            the reasonable expenses of such an examination, including 
 
            travel expenses.  Therefore, claimant has a right to be 
 
            reimbursed by the employer for all charges in conjunction 
 
            with Dr. Walker's examination and for reasonable and 
 
            necessary transportation expenses incurred for such 
 
            services.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 1.  That defendants pay to claimant one hundred 
 
            twenty-five (125) weeks of permanent partial disability 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            benefits at the stipulated rate of one hundred twenty-eight 
 
            and 58/l00 dollars ($128.58) per week commencing February 
 
            13, 1989.
 
            
 
                 2.  Defendants shall receive full credit for all 
 
            disability benefits previously paid.
 
            
 
                 3.  Benefits that have accrued shall be paid in a lump 
 
            sum together with statutory interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 4.  Claimant shall be reimbursed by defendants the 
 
            reasonable fee for examination by Dr. Walker and reasonable 
 
            necessary transportation expenses incurred for the 
 
            examination.
 
            
 
                 5.  A claim activity report shall be filed upon payment 
 
            of the award.
 
            
 
                 6.  Costs of this action are assessed against 
 
            defendants pursuant to rule 343 IAC 4.33.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of May, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert S. Kinsey
 
            Attorney at Law
 
            214 N Adams
 
            P O Box 679
 
            Mason City  IA  50401
 
            
 
            Mr. Richard R. Winga
 
            Attorney at Law
 
            300 American Federal Bldg
 
            P O Box 1567
 
            Mason City  IA  50401
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1803; 2700
 
                           Filed May 14, 1991
 
                           JEAN M. INGRASSIA
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DONNA K. KIRKBRIDE,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 847423
 
            WELLBORN INDUSTRIES, LTD.,    :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            USF&G,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            1803; 2700
 
            The issue in this case is the extent of claimant's permanent 
 
            disability, if any, and the related issue of whether 
 
            claimant is an odd-lot employee.  A circuit board, weight 
 
            disputed, fell off a shelf and landed on claimant's left 
 
            foot.  A lumbar sympathectomy was performed.  Claimant 
 
            developed a trochanteric bursitis of the left hip secondary 
 
            to a limping gait.  She underwent excision of the greater 
 
            trochanteric bursa.  Claimant's treating physician rated 15 
 
            percent of lower extremity, or 6 percent of whole person, 
 
            and 30 percent of the hip, or 12 percent of whole person, 
 
            for a combined rating of 17 percent.  Other ratings have 
 
            ranged from 12 to 25 percent.  Restrictions imposed included 
 
            no lifting over 10 pounds and no prolonged setting or 
 
            standing but can alternate between sitting and standing.  No 
 
            climbing or crawling.  Employer offered her a job within 
 
            these restrictions.  Claimant worked two hours and couldn't 
 
            handle the job and left work.  A neurosurgeon recommended 
 
            placement of a dorsal column stimulator.  Claimant refused 
 
            and defendant raised defense of "unreasonable refusal of 
 
            medical care."  While an unreasonable refusal of proffered 
 
            medical benefits can result in a loss of weekly benefits;  
 
            Johnson v. Tri-City Fabricating and Welding Company, 
 
            Thirty-third Biennial Report of the Iowa Industrial 
 
            Commissioner 179 (Appeal Decision 1977),  failure to undergo 
 
            surgery which carries some significant risk in the outcome 
 
            of which is not altogether certain does not represent an 
 
            unreasonable refusal of medical care.  Arnaman v. 
 
            Mid-American Freight Lines, I-3 Iowa Industrial Commissioner 
 

 
            
 
 
 
 
 
 
 
 
 
 
 
            Decisions 497 (1985); Barkdoll v. American Freight System, 
 
            Inc., File Nos. 778471, 816913 (Appeal Decision, June 28, 
 
            1988).
 
            Claimant is 36 years old and has a GED certificate.  She has 
 
            significant work restrictions.  Since there is a job 
 
            available to employee which accommodates her restrictions, 
 
            she cannot be found totally and permanently disabled.  Since 
 
            there is a job available to claimant through employer, she 
 
            cannot be found totally and permanently disabled.  The 
 
            industrial commissioner stated in Gallardo v. Firestone Tire 
 
            Company, File No. 643357 (Appeal Decision Filed October 21, 
 
            1987).  Her industrial disability is reduced due to her 
 
            unwillingness to pursue an available position with employer.  
 
            Considering all of the factors of industrial disability, 
 
            claimant awarded 25 percent permanent partial disability 
 
            benefits.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DONNA K. KIRKBRIDE,           :
 
                                          :         File No. 847423
 
                 Claimant,                :
 
                                          :      RULING  ON  CLAIMANT'S
 
            vs.                           :
 
                                          :         APPLICATION  FOR
 
            WELLBORN INDUSTRIES, LTD.,    :
 
                                          :      REHEARING  AND  ORDER
 
                 Employer,                :
 
                                          :         NUNC  PRO  TUNC
 
            and                           :
 
                                          :
 
            USF&G,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            Claimant filed an application for rehearing and/or order 
 
            nunc pro tunc on May 24, 1991.
 
            A decision was rendered in the above named case on May 14, 
 
            1991.  Defendants were ordered to pay claimant 125 weeks of 
 
            permanent partial disability benefits commencing February 
 
            13, 1989.
 
            The aforementioned order is amended to state that the 125 
 
            weeks of permanency benefits commencing February 13, 1989, 
 
            should be paid to June 4, 1989, interrupted by healing 
 
            period benefits from June 5, 1989 to January 11, 1990, with 
 
            permanency benefits again commencing on January 12, 1990 and 
 
            continuing until fully paid.
 
            The arbitration decision sets out the factors which the 
 
            undersigned considered when making her finding of industrial 
 
            disability.  Claimant demonstrated little motivation to 
 
            work.  The prior finding of industrial disability is 
 
            correct.
 
            THEREFORE, IT IS ORDERED THAT:
 
            1.  The arbitration decision dated May 14, 1991, is modified 
 
            to clarify the interrupted healing period from June 5, 1989 
 
            to January 11, 1990, in accordance with the stipulation and 
 
            agreement of the parties.
 
            2.  Claimant's application for rehearing on the issue of 
 
            industrial disability is denied.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of May, 1991.
 
            
 
            
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
                      ______________________________               JEAN 
 
            M. INGRASSIA
 
                      DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert S. Kinsey, III
 
            Attorney at Law
 
            214 N Adams
 
            P O Box 679
 
            Mason City  IA  50401
 
            
 
            Mr. Richard R. Winga
 
            Attorney at Law
 
            300 American Federal Bldg
 
            P O Box 1567
 
            Mason City  IA  50401
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         LEROY HAWS,
 
         
 
              Claimant,                               File No. 847496
 
         
 
         VS.                                        R U L I  N  G   0 N
 
          
 
          DTI OF SIOUX CITY,                       A P P L I C A T I 0 N
 
          
 
               Employer,                                   F 0 R
 
          
 
          and                                       D E C L A R A T 0 R Y
 
         
 
          AETNA LIFE AND CASUALTY,                        R U L I N G
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
              On July 15, 1987 claimant filed an Application For 
 
         Declaratory Ruling.  The undersigned, having reviewed the 
 
         application and statements thereto, the same comes on for 
 
         determination.
 
         
 
              It is clear from a review of the application that it fails 
 
         to meet the requirements for a petition for declaratory ruling.  
 
         Division of Industrial Services Rule 343-X.5 indicates that an 
 
         agency may refuse to issue a declaratory ruling for good cause.
 
         
 
              WHEREFORE, claimant's application for declaratory ruling is 
 
         refused for the following reasons.
 
         
 
              1.  The petition does not substantially comply with the 
 
         required form.
 
         
 
              2.  The questions presented would more properly be resolved 
 
         in a different type of proceeding.
 
         
 
              3.  The petition is not based upon facts calculated to aid 
 
         in the planning of future conduct but is, instead, based solely 
 
         upon prior conduct in an effort to establish the effect of that 
 
         conduct.
 
         
 
              THEREFORE, claimant's application for declaratory ruling is 
 
         denied and dismissed.
 
         
 
         
 
         
 
         
 
         
 
                                                
 
                                                         
 
         
 
              Signed and filed this 29th day of July, 1987.
 
         
 
         
 
         
 
         
 
                                             DAVID E.LINQUIST
 
                                             ACTING INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Harry W. Dahl, III
 
         Attorney at Law
 
         974 73rd St., Suite 16
 
         Des Moines, Iowa 50312
 
         
 
         Mr. Brian Nelson
 
         Claims Adjuster
 
         Aetna Life and Casualty
 
         500 E. Court Avenue
 
         Des Moines, Iowa 50309
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         RICHARD BLACKWOOD,    
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                                  File No. 847551
 
         THE MAYTAG COMPANY,   
 
                                                   A P P E A L
 
              Employer,   
 
                                                  D E C I S I O N
 
         and         
 
                     
 
         FIREMAN'S INSURANCE COMPANY     
 
         OF NEWARK,       
 
                     
 
              Insurance Carrier,    
 
              Defendants.      
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         October 14, 1992 is affirmed and is adopted as the final agency 
 
         action in this case.
 
         
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         
 
         Signed and filed this ____ day of August, 1993.
 
         
 
         
 
         
 
         
 
                                     ________________________________
 
                                             BYRON K. ORTON
 
                                       INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. David W. Sheetz
 
         Attorney at Law
 
         4910 Urbandale Ave. #304
 
         Des Moines, Iowa 50310
 
         
 
         Ms. Patricia J. Martin
 
         Attorney at Law
 
         100 Court Ave., Ste 600
 
         Des Moines, Iowa 50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                     5-1100; 5-1108; 5-1402; 5-1802
 
                                     Filed August 23, 1993
 
                                     Byron K. Orton
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            RICHARD BLACKWOOD,    
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                  File No. 847551
 
            THE MAYTAG COMPANY,   
 
                                                    A P P E A L
 
                 Employer,   
 
                                                 D E C I S I O N
 
            and         
 
                        
 
            FIREMAN'S INSURANCE COMPANY     
 
            OF NEWARK,       
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            5-1100; 5-1108; 5-1402; 5-1801
 
            Claimant established a temporary aggravation of underlying 
 
            degenerative disc disease in a work-related incident.  
 
            Claimant did not establish that the work incident produced 
 
            any permanent disability.  Claimant had two prior back 
 
            surgeries unrelated to the work incident and had a third and 
 
            fourth back surgery two years and approximately three and 
 
            one-half years subsequent to the work incident.  Held that 
 
            the third and fourth back surgeries related to claimant's 
 
            underlying degenerative disease and not to the work 
 
            incident.
 
            
 
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER            
 
            ____________________________________________________________
 
                                          :
 
            RICHARD BLACKWOOD,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 847551
 
            THE MAYTAG COMPANY,           :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            FIREMAN'S INSURANCE COMPANY   :
 
            OF NEWARK,                    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by the 
 
            claimant, Richard Blackwood, against his employer, The 
 
            Maytag Company, and its insurance carrier, Fireman's 
 
            Insurance Company of Newark, to recover benefits under the 
 
            Iowa Workers' Compensation Act as a result of an injury 
 
            allegedly sustained on February 28, 1987.  This matter came 
 
            on for hearing before the undersigned deputy commissioner at 
 
            Des Moines, Iowa, on September 9, 1992.  A first report of 
 
            injury has been filed.
 
            
 
                 The record consists of the testimony of claimant and of 
 
            Ellen Herford as well as of joint exhibits 1 through 10.
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the hearing assignment order, the hearing 
 
            report, and the oral stipulation of the parties, the parties 
 
            have stipulated to the following:
 
            
 
                 1.  That claimant was married and entitled to two 
 
            exemptions at the time of his injury and then earned a gross 
 
            weekly wage of $545 entitling him to a weekly rate of 
 
            compensation of $325.42;
 
            
 
                 2.  That fees charged for medical services supplied 
 
            were fair and reasonable and that the services rendered were 
 
            reasonable and necessary medical treatment; and,
 
            
 
                 3.  That defendants have paid claimant 148 weeks of 
 
            compensation at the correct rate.
 
            
 
                 Issues remaining to be decided are:
 
            
 
                 1.  Whether claimant did receive an injury which arose 
 
            out of and in the course of his employment;
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 2.  Whether a causal relationship exists between the 
 
            claimed injury and claimed disability;
 
            
 
                 3.  The nature and extent of claimant's benefit 
 
            entitlement, if any; and,
 
            
 
                 4.  Whether claimant is entitled to payment of certain 
 
            medical costs as causally connected to the work injury and 
 
            as authorized by defendants.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The deputy, having heard the testimony and considered 
 
            the evidence, finds:
 
            
 
                 Claimant is a 56-year-old gentleman.  He began work 
 
            with The Maytag Company in 1968 and in September of 1974 
 
            completed a four year apprentice to become a machinery 
 
            repairer/millwright.  He worked as a repairer/millwright 
 
            until approximately September 1987.
 
            
 
                 On August 5, 1980, claimant fell off a ladder at work 
 
            sustaining low back and right buttock pain with radiation of 
 
            pain down the back of the right thigh and leg.  Robert A. 
 
            Hayne, M.D., a neurosurgeon, performed a right L4/L5 
 
            laminectomy on October 13, 1980.  On February 3, 1981, Dr. 
 
            Hayne opined that claimant likely would have a 9 percent 
 
            body as a whole permanent partial impairment upon complete 
 
            recuperation from the initial October 1980 surgery.  On June 
 
            6, 1981, Dr. Hayne restricted claimant from lifting more 
 
            than 35 pounds.  Claimant persisted in having problems and 
 
            on March 16, 1982, Dr. Hayne performed a repeat L4/L5 
 
            laminectomy on the right.  On September 27, 1982, Dr. Hayne 
 
            opined that claimant had a 16 percent permanent partial 
 
            "disability" on account of his two surgeries and attributed 
 
            8 percent of that rating to each surgery.  Dr. Hayne again 
 
            released claimant for work on September 1, 1982, with a 40 
 
            to 50 pound lifting restriction.  Mark Broderson, M.D., had 
 
            also examined and treated claimant during this period and on 
 
            September 23, 1981, had returned claimant to work with a 30 
 
            pound lifting restriction.
 
            
 
                 Claimant had episodes of back problems subsequent to 
 
            September 1982 and prior to February 1987.  He, on occasion, 
 
            was off work and had seen and treated with Ronald R. 
 
            Reschly, M.D., a board certified orthopedic surgeon in 
 
            January and again in October 1985 for such problems.  
 
            Claimant worked as a millwright throughout this time with 
 
            his employer accommodating his 40 pound lifting restriction.
 
            
 
                 Claimant experienced back pain on Saturday, February 
 
            28, 1987, while removing a motor from an overhead conveyor.  
 
            He characterized the situation as "lifting too much and 
 
            injuring his back."  Claimant saw Dr. Broderson on May 8, 
 
            1982.  Dr. Broderson then reported that claimant had a dull 
 
            ache and tingle into the right leg and that he had right leg 
 
            pain which was not sharp but was achy, and pain down to the 
 
            foot with numbness into the toes and posterior calf.  The 
 
            impression was of mechanical low back pain with very mild 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            radiculopathy and no neuropathy.  A medical report of the 
 
            doctor to Renee Kidman of the insurance adjusting company 
 
            reports that claimant had left leg pain that was not sharp 
 
            but was achy in May 1987.  A review of the copy of the 
 
            handwritten office note of May 8, 1987, in evidence, 
 
            suggests that the actual reference was to right leg pain.  
 
            While such is difficult to discern as  the handwritten note 
 
            contains a circle containing either an L or an R and the 
 
            circle is on both the margin line and the lined line on 
 
            lined paper, both the lined line and margin line are 
 
            definitely darker within or on the circle suggesting that 
 
            the notation within the circle is of an "R" and not of an 
 
            "L."  Additionally, if the notation is actually an "L," the 
 
            "L" is in the right half of the circle only.  If that is the 
 
            case, the "L" is written with a far right slant.  That slant 
 
            is atypical of the handwritten note as a whole in that the 
 
            handwriting overall is centered and only modestly right 
 
            slanting.  Hence, an interpretation of the notation with the 
 
            circle as a "R" and not as a "L is more consistent with the 
 
            handwritten note's characterization overall.  Given such, it 
 
            appears that the reference to left leg pain in the medical 
 
            report to Kidman is an interpretation error.  Regardless, 
 
            both the office note of May 8, 1987 and the medical report 
 
            of May 13, 1987 indicate that claimant's straight leg 
 
            raising test was negative on examination.  That finding is 
 
            consistent with the absence of radicular symptoms as of May 
 
            8, 1987.
 
            
 
                 Claimant saw Thomas Carlstrom, M.D., a board certified 
 
            neurologist, on July 24, 1987.  The doctor then found low 
 
            back pain and right leg pain.
 
            
 
                 Claimant saw William R. Boulden, M.D., a board 
 
            certified orthopedic surgeon on August 25, 1987.  Claimant 
 
            then had complaints of low back, and right lateral foot 
 
            pain.  On review of an MRI, a CT scan and a myelogram, Dr. 
 
            Boulden found claimant had multiple levels of degenerative 
 
            disc disease in the lumbar spine but no evidence of a 
 
            recurrent right L4/L5 disc herniation.  A small, midline to 
 
            slightly left disc protrusion at L4/L5 was discovered.  
 
            While Dr. Carlstrom had previously recommended fusion of all 
 
            lumbar levels but for the L3 level, Dr. Boulden opined that 
 
            surgical treatment was not warranted given claimant's 
 
            extensive lumbar degenerative disc disease.  Dr. Boulden 
 
            prescribed a work hardening and exercise program.
 
            
 
                 Dr. Boulden next saw claimant on October 15, 1987.  
 
            Claimant then reported increasing back pain as a result of 
 
            the conditioning program and increasing coccyx pain.  
 
            Boulden characterized the coccyx pain as very significant as 
 
            that pain had been only mild when Boulden initially saw 
 
            claimant.  An MRI of October 1987 contained essentially the 
 
            same findings as previous radiological testing.  On November 
 
            3, 1987, Dr. Boulden performed facet blocks at L4/L5 and 
 
            L5/S1 in the coccyx area.  The blocks did not decrease 
 
            claimant's pain in the spinal area and did improve 
 
            claimant's coccyx pain.  Dr. Boulden believed that 
 
            claimant's work hardening program had produced an 
 
            aggravation of claimant's degenerative process in the coccyx 
 
            area.  On November 30, 1987, Dr. Boulden performed a coccyx 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            excision.  Dr. Boulden again saw claimant on December 10, 
 
            1987.  Claimant then did not have complaints of leg pain.  
 
            On December 24, 1987, claimant had complaints of back pain 
 
            which he apparently characterized as something he had before 
 
            with which he would have to live with.   On February 4, 
 
            1988, claimant had pain in the sacral area.  On March 3, 
 
            1988, claimant complained of increased back pain and did not 
 
            report leg pain.
 
            
 
                 Dr. Boulden opined that claimant reached maximum 
 
            medical improvement subsequent to his coccyx incision on 
 
            March 15, 1988.  Dr. Boulden opined that the coccyx excision 
 
            had not produced permanent partial impairment.  He advised 
 
            that claimant use proper body mechanics and not engage in 
 
            repetitive bending or twisting with the back, nor prolonged 
 
            sitting or standing, that is, nothing greater than 30 to 45 
 
            minutes.  Dr. Boulden indicated he would have imposed such 
 
            restrictions on claimant subsequent to his surgeries in 1980 
 
            and 1982.
 
            
 
                 Dr. Boulden, in his deposition, opined that claimant's 
 
            February 1987 work incident had not produced any material 
 
            change in claimant's underlying degenerative disc pathology 
 
            although that pathology had been made symptomatic after the 
 
            February 1987 incident.  He further related claimant's 
 
            coccyx excision to the February 1987 injury stating that the 
 
            coccyx area became symptomatic as a result of a work 
 
            conditioning recommended to treat the February 1987 
 
            symptomatology.
 
            
 
                 On March 18, 1988, Dr. Boulden opined that claimant had 
 
            a 15 percent body as a whole permanent partial impairment 
 
            related to his two L4/L5 right laminectomies and the 
 
            residuals of degenerative disc disease.  In his deposition, 
 
            Dr. Boulden opined that claimant had a 13 percent plus a 9 
 
            to 12 percent minus a 1 to 2 percent permanent partial 
 
            impairment on account of his combined surgeries through 
 
            November 9, 1990.
 
            
 
                 Claimant returned to work on the manufacturing line as 
 
            a dryer inspector and with a 25 pound lifting restriction 
 
            after Dr. Boulden's initial work release.  Claimant reported 
 
            his pain did not resolve subsequent to the coccyx surgery.
 
            
 
                 Claimant saw Dr. Boulden on October 11, 1988, with 
 
            complaints of left hip pain on prolonged standing.  On 
 
            December 6, 1988, Dr. Boulden diagnosed claimant's condition 
 
            as external tendinitis of the left hip.
 
            
 
                 On November 29, 1988, Dr. Boulden opined that claimant 
 
            had no greater permanent partial impairment of his back as a 
 
            result of the February 1987 incident than he had had prior 
 
            to the incident.
 
            
 
                 Claimant, of his own accord, saw Dr. Reschly on January 
 
            30, 1989.  Claimant then complained of pain in the left 
 
            lateral buttock just posterior to the left greater 
 
            trochanteric bursal area and in the sciatic notch area.  
 
            Claimant also had pain down the right lower extremity and 
 
            into the posterior calf.  He had positive straight leg 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            raising on the left at 60 degrees.  In his deposition of 
 
            October 29, 1991, Dr. Reschly reported that through March 
 
            and April of 1989, claimant had severe persistent sciatica 
 
            that steadily worsened until Dr. Reschly performed a 
 
            laminectomy at L4/L5 on the left on May 2, 1989.
 
            
 
                 Dr. Reschly released claimant for work on April 16, 
 
            1989.  On October 4, 1989, Dr. Reschly restricted claimant 
 
            to working no more than 40 hours per week and eight hours 
 
            per day; to do only limited or occasional bending and 
 
            twisting; to vary sitting and standing; and, to lift no more 
 
            than 15 pounds.  In January 1990, Dr. Reschly raised 
 
            claimant's per hour limit to 10 hours per day.  Dr. Reschly 
 
            has opined that claimant has an 8 percent additional 
 
            permanent partial impairment as a result of his May 2, 1990 
 
            surgery.  Reschly has characterized such as an addition to 
 
            previous ratings of 20 percent for the 1980 and 1982 
 
            surgeries and as an addition to a 10 percent rating for 
 
            claimant's coccyx excision.  The record overall does not 
 
            support a finding that claimant has previous ratings of 20 
 
            percent and 10 percent, respectively.
 
            
 
                 In his deposition, Dr. Reschly opined that he treated 
 
            claimant for the same problems for which Dr. Boulden had 
 
            treated claimant in 1987.  Dr. Reschly opined that coccyx 
 
            excision is generally not effective in ending coccyx pain 
 
            not produced by direct coccyx trauma in that coccyx pain is 
 
            referred pain from the lumbar spine.  Dr. Reschly opined 
 
            that there was essentially no substantial difference between 
 
            claimant's 1987 and 1989 MRI's but for the fact that in the 
 
            1989 MRI nerve root impingement could be identified and such 
 
            could not be identified in the 1987 MRI.  In his deposition, 
 
            of apparently December 1991, Dr. Boulden opined that the 
 
            disc protrusion at L4/L5 on midline and slightly to the left 
 
            was "definitely much larger in 1989 than in 1987."  Dr. 
 
            Boulden further stated that if sciatica is not present 
 
            within six weeks of a significant injury with a documented 
 
            herniated disc, one can suspect the disc is not symptomatic.  
 
            He opined that in that claimant's first left side complaint 
 
            was in October 1988 and related to the left buttock area, he 
 
            could not correlate that pain with the alleged February 1987 
 
            injury and that, given that history, he did not believe the 
 
            May 1989 surgery related to the February 1987 incident.  Dr. 
 
            Boulden further opined that, in that claimant did not have 
 
            left side pain reported subsequent to his work hardening, it 
 
            was doubtful that the work hardening had produced the 
 
            herniated disc at L4/L5 on the left.
 
            
 
                 Dr. Carlstrom again saw claimant on September 20, 1990.  
 
            Claimant then was working with discomfort in both legs and 
 
            with numbness and tingling radiating into the L5 nerve root 
 
            distribution bilaterally.  Dr. Carlstrom reported that an 
 
            MRI of L4/L5 demonstrated an abnormality, possibly a 
 
            recurrent disc herniation.  On November 9, 1990, Dr. 
 
            Carlstrom performed a posterior lumbar interbody fusion for 
 
            disc herniation at L4/L5 on the left.  Dr. Boulden has 
 
            opined that that fusion does not relate to the February 1987 
 
            injury.
 
            
 
                 It is expressly found that claimant did sustain a work 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            incident that arose out of and in the course of his 
 
            employment on February 28, 1987, which work incident 
 
            resulted in further temporary aggravation of his preexisting 
 
            degenerative disc disease.  It is expressly found that the 
 
            work hardening prescribed to treat the symptomatic 
 
            degenerative disc disease produced coccyx symptoms for which 
 
            claimant underwent a coccyx excision.  It is expressly found 
 
            that Dr. Boulden's opinion that claimant's May 1989 
 
            laminectomy does not relate to his February 1987 work 
 
            incident is accepted over Dr. Reschly's opinion of a causal 
 
            relationship.  In this regard, it is noted that claimant's 
 
            1987 MRI demonstration of a disc herniation on the left was 
 
            not supported with clinical findings of left leg pain.  The 
 
            only notation of left leg pain prior to claimant's left 
 
            buttock complaints of October 1988 is that contained in Dr. 
 
            Broderson's May 13, 1987 report.  That report appears to be 
 
            a transcription error when the original office note is 
 
            reviewed.  Additionally, the persistency of claimant's left 
 
            leg complaints subsequent to January 1989 also suggests that 
 
            those complaints represented a new problem related to 
 
            claimant's evolving underlying degenerative disc disease and 
 
            not related to his February 1987 work incident.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Our first concerns are whether claimant received an 
 
            injury which arose out of and in the course of his 
 
            employment on February 28, 1987, and whether a causal 
 
            relationship exists between that injury and claimed 
 
            disability.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, its mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 
 
            N.W.2d 756 (1956).  If the claimant had a preexisting 
 
            condition or disability that is materially 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); 
 
            Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 
 
            N.W.2d 299 (1961).
 
            
 
                 Apportionment of disability between a preexisting 
 
            condition and an injury is proper only when some 
 
            ascertainable portion of the ultimate industrial disability 
 
            existed independently before an employment-related 
 
            aggravation of disability occurred.  Bearce v. FMC Corp., 
 
            465 N.W.2d 531 (Iowa 1991); Varied Enterprises, Inc. v. 
 
            Sumner, 353 N.W.2d 407 (Iowa 1984).  Hence, where employment 
 
            is maintained and earnings are not reduced on account of a 
 
            preexisting condition, that condition may not have produced 
 
            any apportionable loss of earning capacity.  Bearce, 465 
 
            N.W.2d at 531.  Likewise, to be apportionable, the 
 
            preexisting disability must not be the result of another 
 
            injury with the same employer for which compensation was not 
 
            paid.  Tussing v. George A. Hormel & Co., 461 N.W.2d 450 
 
            (Iowa 1990).
 
            
 
                 The burden of showing that disability is attributable 
 
            to a preexisting condition is placed upon the defendant.  
 
            Where evidence to establish a proper apportionment is 
 
            absent, the defendant is responsible for the entire 
 
            disability that exists.  Bearce, 465 N.W.2d at 536-37; 
 
            Sumner, 353 N.W.2d at 410-11.
 
            
 
                 As noted in the above findings, claimant did have a 
 
            work incident on February 28, 1987, when he apparently 
 
            strained and aggravated his underlying degenerative disc 
 
            disease while performing his work duties.  Dr. Boulden's 
 
            opinion that as a sequelae of work hardening prescribed to 
 
            treat the work-related aggravation, claimant aggravated his 
 
            coccyx area with a resulting need for coccyx excision is 
 
            also accepted.  Likewise, Dr. Boulden's opinion that the 
 
            coccyx excision did not result in any permanency to claimant 
 
            is accepted.  Additionally, Dr. Boulden's opinion that 
 
            claimant's aggravation of his back in February 1987 did not 
 
            result in additional permanent impairment is accepted.
 
            
 
                 As also noted in the above findings, claimant has not 
 
            established a causal relationship between his February 1987 
 
            injury and his May 1989 and November 1990 surgeries.  As set 
 
            forth in the above findings, the evidence relative to 
 
            causation between the February 1987 work incident and the 
 
            1989 and 1990 surgeries and their sequelae at best creates 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            an equipoise.  An equipoise is insufficient to carry 
 
            claimant's burden.  Volk v. International Harvester Company, 
 
            252 Iowa 298, 106 N.W.2d 649 (1960).
 
            
 
                 We consider the question of claimant's benefit 
 
            entitlement, if any.  As noted, claimant has not established 
 
            a causal relationship between his February 28, 1987 work 
 
            incident and any permanent disability.  For that reason, 
 
            defendants are not liable for any payment of permanent 
 
            partial disability benefits.  Defendants are liable for 
 
            payment of temporary total disability benefits for the 
 
            periods claimant's disability related to his work condition.
 
            
 
                 Temporary total disability benefits are payable until 
 
            the claimant has returned to work.
 
            
 
                 Iowa Code section 85.33(1) provides:
 
            
 
                 Except as provided in subsection 2 of this 
 
                 section, the employer shall pay to an employee for 
 
                 injury producing temporary total disability weekly 
 
                 compensation benefits, as provided in section 
 
                 85.32, until the employee has returned to work or 
 
                 is medically capable of returning to employment 
 
                 substantially similar to the employment in which 
 
                 the employee was engaged at the time of injury, 
 
                 whichever occurs first.
 
            
 
                 Defendants are liable for temporary total disability 
 
            benefits to claimant for times claimant was actually off 
 
            work from his February 28, 1987 date of injury through his 
 
            release to return to work per Dr. Boulden on August 16, 
 
            1988.
 
            
 
                 The parties have stipulated that defendants have 
 
            already paid 68 weeks of benefits.  It appears that payment 
 
            of 68 weeks of benefits exceeds the total amount of 
 
            defendants' benefits liability.  Should that be the case, 
 
            defendants have no further benefit liability to claimant.
 
            
 
                 Claimant apparently seeks payment of medical costs with 
 
            Dr. Reschly related to the 1989 treatment.  It is expressly 
 
            noted that no separate list of medical costs for which 
 
            payment is sought was provided.  In any event, the evidence 
 
            does not establish any entitlement to payment of such costs 
 
            under Iowa Code section 85.27.  Defendants did not authorize 
 
            claimant's treatment with Dr. Reschly.  Additionally, the 
 
            evidence has not demonstrated a causal relationship between 
 
            Dr. Reschly's treatment of claimant and claimant's February 
 
            28, 1987 work incident.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 Defendants pay claimant healing period benefits for 
 
            those times claimant was actually off work on account of his 
 
            February 28, 1987 injury from February 28, 1987 to August 
 
            16, 1988, at the rate of three hundred twenty-five and 
 
            42/100 dollars ($325.42).
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
                 Defendants receive credit for benefits previously paid.
 
            
 
                 Claimant pay costs pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendants file any additional claim activity reports 
 
            as ordered by the agency.
 
            
 
                 Signed and filed this ____ day of October, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                    ________________________________
 
                                          HELENJEAN M. WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr David W Sheetz
 
            Attorney at Law
 
            4910 Urbandale Ave  #304
 
            Des Moines IA 50310
 
            
 
            Ms Patricia J Martin
 
            Attorney at Law
 
            100 Court Ave  Ste 600
 
            Des Moines IA 50309
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
                                             5-1100; 5-1108
 
                                             5-1402; 5-1802
 
                                             Filed October 14, 1992
 
                                             Helenjean M. Walleser
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            RICHARD BLACKWOOD,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                             File No. 847551
 
            THE MAYTAG COMPANY, 
 
                                         A R B I T R A T I O N
 
                 Employer, 
 
                                             D E C I S I O N
 
            and       
 
                      
 
            FIREMAN'S INSURANCE COMPANY   
 
            OF NEWARK,     
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            5-1100; 5-1108; 5-1402; 5-1801
 
            Claimant established a temporary aggravation of underlying 
 
            degenerative disc disease in a work-related incident.  
 
            Claimant did not establish that the work incident produced 
 
            any permanent disability.  Claimant had had two prior back 
 
            surgeries unrelated to the work incident and had a third and 
 
            fourth back surgery two years and approximately three and 
 
            one-half years subsequent to the work incident.  Held that 
 
            the third and fourth back surgeries related to claimant's 
 
            underlying degenerative disease and not to the work 
 
            incident.