BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARGARET J. AUSTIN,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                   File No.  848293
 
         NEELY MANUFACTURING CO.,
 
                                                A R B I T R A T I 0 N
 
              Employer,
 
                                                   D E C I S I 0 N
 
         and
 
         
 
         AMERICAN MANUFACTURERS MUTUAL
 
         INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by claimant, 
 
         Margaret J. Austin, against defendant employer, Neely 
 
         Manufacturing Company, and defendant insurance carrier, American 
 
         Manufacturers Mutual Insurance Company, to recover benefits under 
 
         the Iowa Workers' Compensation Act as the result of an injury 
 
         which allegedly occurred in May, 1987.  This matter came on for 
 
         hearing before the undersigned deputy industrial commissioner on 
 
         October 26, 1988 in Des.Moines, Iowa, and was considered fully 
 
         submitted on that date.  Claimant appeared by his attorney, 
 
         Dennis Hanssen.  Defendants appeared by attorney Paul Thune.
 
         
 
              The evidence in this case consists of joint exhibits 1 
 
         through 4, defendants' exhibit 5 and the testimony of the 
 
         following witnesses:  Claimant, Mark Ketchum, Phyllis Womble and 
 
         Darlene McCarty.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the pre-hearing report approved by the deputy at 
 
         hearing, the following issues remain for determination:  Whether 
 
         claimant sustained an injury in May, 1987 arising out of and in 
 
         the course of her employment; whether the alleged injury is 
 
         causally connected to disability; whether claimant is entitled to 
 
         temporary total disability or healing period benefits (although 
 
         it is stipulated that, if so, the entitlement is from May 21, 
 
         1987 through February 1, 1988); whether claimant is entitled to 
 
         permanent partial disability benefits; claimant's entitlement to 
 
         medical benefits; whether claimant's disability, if any, is to a 
 
         scheduled member or to the body as a whole; whether claimant is 
 
         entitled to penalty benefits; taxation of costs.
 
         
 
              It was stipulated by the parties that claimant's rate for 
 

 
         
 
         
 
         
 
         AUSTIN V. NEELY MANUFACTURING CO.
 
         PAGE   2
 
         
 
         
 
         weekly benefits is $93.57; that the commencement date for 
 
         permanent partial disability if the same be awarded is February 
 
         2, 1988; that the fees charged for medical services or supplies 
 
         are fair and reasonable; that the provider of such services 
 
         would testify that the treatment was reasonable and necessary 
 
         treatment of the alleged work injury and that defendants 
 
         offered no contrary evidence.
 
         
 
              The record is unclear as to the correct spelling of 
 
         defendant employer's name.  As ONeelyO is used in the petition 
 
         and answer, it is employed here in lieu of O'Neeley.
 
         
 
                            REVIEW OF EVIDENCE
 
         
 
              Claimant testified that she was born on October 30, 1935 and 
 
         that she now lives in Parachute, Colorado.  She has an eleventh 
 
         grade education, although she has also taken a typing course.   
 
         She types 45 words per minute.
 
         
 
              Claimant further testified to her employment history since 
 
         leaving high school.  She has worked in a grocery business as a 
 
         waitress, as a telephone operator, as an inspector of porcelain 
 
         electronic parts for some six and one-half years, as an inspector 
 
         for a coffee pot manufacturer, as an "assistant manager" in a 
 
         cafe (but testified that she had no supervisory duties and did a 
 
         great deal of cooking and like work), and in approximately five 
 
         or six locations as a sewing machine operator and as supervisor.
 
         
 
              Claimant testified that before beginning her lengthy 
 
         position as a porcelain part inspector she had some history of 
 
         neck problems, especially when sitting for a long time in the 
 
         same position, but that she had no history of hand, arm or 
 
         shoulder ailments.  She accepted the position as an inspector in 
 
         January, 1979.
 
         
 
              In February, 1987, claimant accepted a.position with Neely 
 
         Manufacturing Company.  She had previously worked for this 
 
         company, and also for another company under the same ownership, 
 
         both times as a sewing machine operator.  She also had 
 
         supervisory duties in the earlier position.  At the time she 
 
         accepted this position, she exhibited no physical problems 
 
         whatsoever.
 
         
 
              Claimant's position with defendant Neely Manufacturing 
 
         Company was a piecework job sewing together plastic clothing 
 
         containers, such as a clothier might use to package a suit or: 
 
         sport coat after sale.  The work was accurately described on a 
 
         videotape submitted as defendant's exhibit 5, but claimant 
 
         testified that, in addition to what was shown on the tape, 
 
         bundles of plastic were placed on her right side folded in thirds 
 
         and she was responsible for moving the piles of plastic to her 
 
         left side and unfolding them prior to the sewing procedure.  The 
 
         weight of these bundles was up to 20-25 pounds by her estimate.  
 
         Because claimant was still a trainee at the time she last worked 
 

 
         
 
         
 
         
 
         AUSTIN V. NEELY MANUFACTURING CO.
 
         PAGE   3
 
         
 
         
 
         for Neely Manufacturing Company, she was unable to manufacture 
 
         sufficient numbers of product to qualify for piece rate and was 
 
         paid at minimum wage.
 
         
 
              Claimant first missed work with Neely Manufacturing Company 
 
         on May 22, 1987; this was also the first date she saw her 
 
         treating physician, K. A. Garber, M.D.  She testified that, 
 
         approximately three weeks prior to that date, she began having 
 
         problems with her right upper extremity.  At first, she found her 
 
         hand "going to sleep" and then her shoulder began causing pain.
 
         
 
              Dr. Garber gave claimant an injection on May 22 and 
 
         authorized her to return to work on May 26, 1987.  Claimant did 
 
         not do so because of continued pain which she described as 
 
         causing an inability to lift her arm.  She again saw Dr. Garber 
 
         on May 29, June 24, July 13, July 22, August 5, September 4, 
 
         October 10 and November 9, 1987.  During this time, claimant 
 
         continued to complain of shoulder and arm problems, testifying 
 
         that she was unable to lift, extend her arms, sew at home 
 
         (without resting her arm), or perform such normal duties as 
 
         folding blankets or hanging laundry.
 
         
 
              Dr. Garber released claimant to return to work with 
 
         restrictions on October 7, 1987.  His letter to an insurance 
 
         carrier of that date suggested that she talk to her employer to 
 
         see if anything was available that would not require abduction or 
 
         extension of the arm, and noted that if she could do work with 
 
         her arms in front of her and at waist or chest level, perhaps she 
 
         could work; however, he also in that letter opined that claimant 
 
         was "disabled from her previous occupation as a sewing machine 
 
         operator," but further noted that she was gradually improving and 
 
         that he anticipated an eventual satisfactory recovery for which 
 
         he was unable to give a time frame.
 
         
 
              Dr. Garber also referred claimant to David L. Friedgood, 
 
         M.D., for neurological consultation.  Dr. Friedgood issued a 
 
         report of June 19, 1987 in which he expressed an impression of 
 
         cervical strain syndrome with pain in the right arm.  Dr. 
 
         Friedgood found no specific neurological abnormality nor any 
 
         evidence of radiculopathy or neuropathy.  He recommended 
 
         continuation of physical therapy.  While noting that claimant was 
 
         tender to manipulation of her right shoulder and elbow, no 
 
         specific abnormality was found.
 
         
 
              An x-ray report was prepared in June, 1987 (the date is 
 
         difficult to read, but appears to be either June 29 or 31, 1987). 
 
          Findings were of minimal disc space narrowing at the C5-6 level, 
 
         otherwise an unremarkable cervical spine series and normal 
 
         examination of the right shoulder.  The report was prepared by 
 
         Mary A. Christensen, M.D.
 
         
 
              Claimant was also seen for evaluation on February 1, 1988 by 
 
         John A. Grant, M.D.  In an orthopaedic report of February 8, 
 
         1988, Dr. Grant noted what appeared to be full range of motion of 
 
         the neck with no particular discomfort in extremes of motion and 
 
         full passive range of motion of the right shoulder, but with some 
 
         distress mentioned with active range of motion.  There was no 
 
         indication of muscle weakness, atrophy, reflex abnormality or 
 
         loss of sensation.  Dr. Grant opined:
 

 
         
 
         
 
         
 
         AUSTIN V. NEELY MANUFACTURING CO.
 
         PAGE   4
 
         
 
         
 
         
 
              It is my feeling that this woman has evidence of 
 
              rotator cuff tendinitis that commenced in association 
 
              with the job she held at Neeley Manufacturing Company.  
 
              I think it is distinctly possible that the work she 
 
              describes could be the approximate cause [sic] of her 
 
              symptoms, or at least certainly would create an 
 
              aggravating situation with reference to this 
 
              condition.
 
         
 
         (Exhibit 1, page 3)
 
         
 
         Dr. Grant also wrote Mr. Thune on April 26, 1988 as follows:
 
         
 
              I have reviewed the video tape demonstrating the work 
 
              Mrs. Austin does and I feel it is possible for her to 
 
              try resuming that type of employment but perhaps with 
 
              some modifications.  Certainly the repeat activity in 
 
              the abducted position with the right arm during the 
 
              sewing procedure probably aggravates what I feel is a 
 
              chronic tendinitis.  I would not place any major 
 
              permanent restrictions on her activities other than 
 
              limiting the amount of work she does with the arm in an 
 
              abducted position.  It may be that she will have to 
 
              modify her activities to some degree if she is to do 
 
              the same repetitious activity in order to avoid flare 
 
              of symptoms.  Despite the fact that it would help to 
 
              limit constant arm abduction, I do not think she has 
 
              any significant permanent functional impairment at this 
 
              point.  I have not other medical management to suggest 
 
              at this time and I feel that at the time of my 
 
              examination of her she probably had reached maximum 
 
              improvement.  This is in view of the fact that she had 
 
              been off work for a period from 5/21/87 to the present 
 
              time.
 
         
 
         (Exhibit 1, page 1)
 
         
 
              Claimant further testified that she is not currently 
 
         undergoing treatment for her arm or neck and that there has been 
 
         a substantial improvement in her condition.  Nonetheless, she 
 
         indicated that she continues to have good and bad days, with some 
 
         pain every day.  She does not believe she could return to work 
 
         with the defendant because of the requirement that she hold her 
 
         arm up.  Claimant agrees that she can work as a supervisor, 
 
         assistant manager or inspector.  However, she is currently not 
 
         looking for a job, since she and her husband have only one 
 
         automobile.
 
         
 
              Claimant testified further that she did not notify defendant 
 
         employer of her belief that her physical problems were 
 
         work-related until after being discharged.  She indicated that 
 
         she did not tell Darlene McCarty that she would soon return to 
 
         work because her injuries were not work-related.  She testified 
 
         that at first she believed her problems were related to arthritis 
 
         or bursitis and so did not consider the problems to be 
 
         work-related.  During the weeks prior to May 22, 1987, claimant 
 
         undertook no unusual activities or projects at home and suffered 
 
         no prior shoulder pain.
 

 
         
 
         
 
         
 
         AUSTIN V. NEELY MANUFACTURING CO.
 
         PAGE   5
 
         
 
         
 
         
 
              Phyllis Womble testified that she has been a claim 
 
         representative or the Kemper Group since March, 1987.  She had 
 
         responsibility for investigating workers' compensation claims, 
 
         including that of claimant.  She testified to the procedure by 
 
         which preliminary decisions as to liability are made and 
 
         testified that a decision was made that claimant's injuries had 
 
         not been shown to be work-related.  She noted in her testimony 
 
         that Dr. Garber's office notes did not mention a work injury and 
 
         that Dr. Grant's report of February 8, 1988 substantially 
 
         post-dated the decision to deny this claim.    Factors considered 
 
         in the denial of the claim included doctor's notes, information 
 
         provided by Neely Manufacturing Company, witnesses (including 
 
         Ketchum, McCarty and Cheryl Fetters) and claimant's statement.  
 
         This included McCarty's report that claimant indicated to her 
 
         that her injuries were no work-related.
 
         
 
              Darlene McCarty testified that she has worked for Neely 
 
         Manufacturing Company in payroll and accounts receivable for many 
 
         years and has known claimant for many years.  She testified that 
 
         she had a general conversation with claimant concerning her 
 
         injuries in which claimant indicated that she had hurt her arm 
 
         off work, would remain off work "a few days" and did not believe 
 
         that she had injured herself while in the course of her 
 
         employment.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W. 2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 254 N.W. 35 (1934) at 731-32, discussed 
 
         the definition of personal injury in workers' compensation cases 
 
         as follows:
 
         
 
              While a personal injury does not include an 
 
              occupational disease under the workmen's Compensation 
 
              Act, yet an injury to the health may be a personal 
 
              injury [Citations omitted.]  Likewise a personal injury 
 
              includes a disease resulting from an injury .... The 
 
              result of changes in the human body incident to the 
 
              general processes of nature do not amount to a personal 
 
              injury.  This must follow, even though such natural 
 
              change may come about because the life has been devoted 
 
              to labor and hard work.  Such result of those natural 
 
              changes does not constitute a personal injury even 
 
              though the same brings about impairment of health or 
 
              the total or partial incapacity of the functions of the 
 
              human body.
 
         
 

 
         
 
         
 
         
 
         AUSTIN V. NEELY MANUFACTURING CO.
 
         PAGE   6
 
         
 
         
 
                 ....
 
         
 
              A personal injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the 
 
              body, the impairment of health, or a disease, not 
 
              excluded by the act, which comes about, not through the 
 
              natural building up and tearing down of the human body, 
 
              but because of a traumatic or other hurt or damage to 
 
              the health or body of an employee. [Citations omitted.]  
 
              The injury to the human body here contemplated must be 
 
              something, whether an accident or not, that acts 
 
              extraneously to the natural processes of nature and 
 
              thereby impairs the health, overcomes, injures, 
 
              interrupts, or destroys some function of the body, or 
 
              otherwise damages or injures a part or all of the 
 
              body.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury in May of 1987 is causally related 
 
         to the disability on which she now bases her claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
         insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 167 (1960).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756 (1956).  
 
         If the claimant had a preexisting condition or disability that is 
 
         aggravated, accelerated, worsened or "lighted up" so that it 
 
         results in disability, claimant is entitled to recover.  Nicks v 
 
         Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, (1962).
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler v. United States Gypsum Co., 252 Iowa 
 
         613, 620, 106 N.W.2d 591 (1960), and cases cited.
 
         
 
              The evidence in his  case  establishes  that  claimant  did 
 
         not suffer from shoulder problems until the several weeks leading 
 
         up to her visit with Dr. Garber on May 22, 1987.  While she had 
 
         some preexisting neck problems, there is no indication that they 
 

 
         
 
         
 
         
 
         AUSTIN V. NEELY MANUFACTURING CO.
 
         PAGE   7
 
         
 
         
 
         caused her to lose work or otherwise seriously interfered with 
 
         her ability to remain gainfully employed.  This deputy believes 
 
         and holds that claimants tendinitis or rotator cuff problems were 
 
         at least aggravated or "lighted up" by this employment, and 
 
         thereby arose out of and in the course of that employment.  As 
 
         has been seen, Dr. Grant has opined that a causal connection 
 
         existed between the work and the injury, at least as to 
 
         aggravation.  This is the only medical evidence in the record as 
 
         to the causation issue and is accepted by this deputy, as 
 
         accurate.
 
         
 
              Since it is found that claimant has suffered an injury 
 
         arising out of and in the course of her employment and that the 
 
         injury is causally connected to disability, the parties' 
 
         stipulation as to temporary total disability/healing period 
 
         entitlement comes into play.  That entitlement has been 
 
         stipulated to be from May 21, 1987 through February 1, 1988.
 
         
 
              The medical evidence in this case shows that claimant has 
 
         evidence of rotator cuff tendinitis as found by Dr. Grant.  Dr. 
 
         Garber indicated in his report of October 7, 1987 that he 
 
         originally felt claimant had a bursitendonitis of the shoulder, 
 
         but never commented as to his diagnosis as of the October 7 
 
         letter.  However, he did at that time feel that claimant was at 
 
         least temporarily disabled from her previous occupation.  Dr. 
 
         Friedgood found a cervical strain syndrome with pain in the right 
 
         arm without specific neurological abnormality.  There were no 
 
         findings on his part as to whether he considered this a permanent 
 

 
         
 
         
 
         
 
         AUSTIN V. NEELY MANUFACTURING CO.
 
         PAGE   8
 
         
 
         
 
         condition.  Therefore, the only evidence in the record as to 
 
         permanency of claimant's condition is that of Dr. Grant.  While 
 
         unwilling to place any major permanent restrictions on claimant's 
 
         activities, he did diagnosis chronic tendinitis and suggested 
 
         that claimant modify her activities to some degree to avoid 
 
         repetitive flare-ups.
 
         
 
              Therefore, the evidence in this record does not establish 
 
         any permanent disability resulting from the mild narrowing of the 
 
         C5-6 disc, but does show chronic tendinitis of the right 
 
         shoulder, and particularly the rotator cuff.  The parties 
 
         disagree as to whether this is a scheduled member disability or a 
 
         disability to the body as a whole.  This office has addressed 
 
         that issue on numerous occasions, including recent reported 
 
         decisions holding shoulder injuries to be body as a whole 
 
         injuries in Shoemaker v. Adams Door Company, II Industrial 
 
         Commissioner Decisions, 352 (1985) and in Decker v. Wilson Foods 
 
         Corporation, I Industrial Commissioner Decisions, 781 (1985).  It 
 
         is held that claimant's chronic tendinitis is an injury to the 
 
         body as a whole and, because of the continued restrictions 
 
         against repetitive work with the arm in an abducted position, it 
 
         is a permanent injury.
 
         
 
              Functional disability 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 disability.  This 
 
         is so as impairment and disability are not synonymous.  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 later 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 
 
         disability include the employeeOs 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.
 
         
 

 
         
 
         
 
         
 
         AUSTIN V. NEELY MANUFACTURING CO.
 
         PAGE   9
 
         
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February   8, 1985); Christensen v. Hagen, Inc., (Appeal 
 
         Decision, March 26, 1985).
 
         
 
              Even though claimant was still a trainee at the time she 
 
         discontinued employment with Neely Manufacturing Company, she was 
 
         discharged from her position because of an inability to perform 
 
         her job due to the industrial disability.  The record does show 
 
         that there would be at least some sewing positions that claimant 
 
         would be unable to fill, even though there are perhaps others 
 
         which she could (for example, her testimony reflects that she 
 
         spent substantial time sewing lace and shoes and there is. no 
 
         showing that this could not be done without excessive work with 
 
         the arm in an abducted position).  Defendant employer was unable 
 
         to make work available to claimant given her limitation, even 
 
         though that limitation is fairly minor.  Even though claimant is 
 
         not now working, the record does not indicate that she is highly 
 
         motivated to return to work.  It is obvious that many, many 
 
         people are able to maintain employment even without a personal 
 
         automobile.
 
         
 
              Given claimant's age and work experience in sewing, 
 
         supervision, restaurant work and lower management, given further 
 
         the restrictions which she is now under relative repetitive work 
 
         with the arm in an abducted position, given further her minimum 
 
         wage status at the time of injury, and based further on the facts 
 
         and analysis set forth in this decision, the deputy finds and 
 
         concludes that claimant has, by reason of lier work-related 
 
         injury, suffered an industrial disability of three percent of the 
 
         body as a whole.
 
         
 
              Joint exhibit 3 shows total medical bills of $1,479.09, 
 
         which total is stipulated to be fair and reasonable.  The only 
 
         evidence in the record shows  that the treatment was reasonable 
 
         and necessary and the only dispute is whether the expenses are 
 
         causally connected to the work injury.  A review of the medical 
 
         bills indicates that each has been incurred by reason of the 
 
         injury and the injury has already been found to be causally 
 
         connected to the employment.  Therefore, claimant shall be 
 
         awarded medical expenses of $1,479.09.  Similarly, claimant shows 
 
         mileage expenses of 520 miles.  While it seems somewhat 
 
         suspicious that each trip was for exactly 20 miles, defendants 
 
         have not chosen to challenge the exhibit.  An award shall also be 
 
         made for mileage expenses.
 
         
 
              Claimant also seeks penalty benefits under Iowa Code section 
 
         86.13.  Penalty benefits may be allowed if a delay in 
 

 
         
 
         
 
         
 
         AUSTIN V. NEELY MANUFACTURING CO.
 
         PAGE  10
 
         
 
         
 
         commencement of benefits occurs without reasonable or probable 
 
         cause or excuse.  The first medical evidence connecting up the 
 
         employment and the injury was that of Dr. Grant on February 8, 
 
         1988.  Prior to that, defendants believed in good faith that 
 
         claimant did not assert her injuries to be work-connected by 
 
         reason of her statements to and as reported by Darlene McCarty.  
 
         It is held that defendants had reasonable cause to believe that 
 
         there might be no liability on this claim.  Therefore, penalty 
 
         benefits shall not be awarded.
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Therefore, based on the evidence presented, the following 
 
         ultimate facts are found:
 
         
 
              1.  Claimant was employed by defendant Neely Manufacturing 
 
         Company on May 22, 1987.
 
         
 
              2.  Claimant first missed work on May 22, 1987 after 
 
         suffering shoulder and upper right extremity pain for 
 
         approximately three weeks.
 
         
 
              3.  Claimant's shoulder and arm pain was caused by rotator 
 
         cuff tendinitis and was either caused, aggravated or "lighted up" 
 
         by the employment.
 
         
 
              4.  Claimant was off work for healing purposes from May 21, 
 
         1987 through February 1, 1988, at which time she had reached 
 
         maximum recovery.
 
         
 
              5.  Claimant's injury of May 22, 1987 resulted in the loss 
 
         of her job with defendant Neely Manufacturing Company and 
 
         disability to the extent that claimant is no longer able to 
 
         perform the same work involving repetitive arm motion in the 
 
         abducted position.
 
         
 
              6.  Claimant is not well motivated to seek further 
 
         employment, although her condition has substantially improved 
 
         since the date of injury.
 
         
 
              7.  Claimant's loss of ability to continue repetitive arm 
 
         motions in the abducted position has caused a diminution of her 
 
         earning capacity.
 
         
 
              8.  Claimant's rate of compensation has been stipulated to 
 
         be $93.57 per week.
 
         
 
              9.  The commencement date for permanent partial disability 
 
         has been stipulated to be February 2, 1988.
 
         
 
             10.  Claimant has sustained medical bills for which the fees 
 
         charged are fair and reasonable and which were incurred for 
 
         reasonable and necessary medical treatment causally connected to 
 
         the work injury in the sum of $1,479.09.
 
         
 
             11.  Claimant has mileage expenses of 520 miles required for 
 
         her medical treatment connected to this injury.
 
         
 

 
         
 
         
 
         
 
         AUSTIN V. NEELY MANUFACTURING CO.
 
         PAGE  11
 
         
 
         
 
             12.  Defendants had reasonable cause to believe that this 
 
         injury might not be compensable under the Workers' Compensation 
 
         Act.
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant suffered an injury arising out of and in the 
 
         course of her employment effective May 22, 1987.
 
         
 
              2.  Claimant's injury was an injury to the body as a whole.
 
         
 
              3.  Claimant's injury directly caused a healing period from 
 
         May 21, 1987 through February 1, 1988 (36 weeks, 3 days).
 
         
 
              4.  Claimant's injury caused medical expenses of $1,479.09 
 
         and mileage expenses for 520 miles.
 
         
 
              5.  Claimant has established a permanent partial industrial 
 
         disability of three percent of the body as a whole.
 
         
 
              6.  Claimant is not entitled to penalty benefits under Iowa 
 
         Code section 86.13.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants are to pay unto claimant thirty-six point four 
 
         two nine (36.429) weeks of healing period benefits at the 
 
         stipulated rate of ninety-three and 57/100 dollars ($93.57) per 
 
         week totalling three thousand four hundred eight and 66/100 
 
         dollars ($3,408.66).
 
         
 
              Defendants are to pay unto claimant fifteen (15) weeks 
 
         (three percent of 500 weeks) permanent partial disability 
 
         benefits at the stipulated rate of ninety-three and 57/100 
 
         dollars ($93.57) per week totalling one thousand four hundred 
 
         three and 55/100 dollars ($1,403.55).
 
         
 
              Defendants shall pay unto claimant medical expenses of one 
 
         thousand four hundred seventy-nine and 09/100 dollars ($1,479.09) 
 
         and mileage expenses of one hundred nine and 20/100 dollars 
 
         ($109.20).
 
         
 
              This award shall be paid in a lump sum together with 
 
         statutory interest pursuant to Iowa Code section 85.30.
 
         
 
              Costs of this action are assessed against defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendants shall file a Claim Activity Report upon payment 
 
         of this award pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 15th day of December, 1988.
 

 
         
 
         
 
         
 
         AUSTIN V. NEELY MANUFACTURING CO.
 
         PAGE  12
 
         
 
         
 
         
 
         
 
         
 
         
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Dennis L. Hanssen
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa 50312
 
         
 
         Mr. Paul C. Thune
 
         Attorney at Law
 
         Suite 300, Fleming Building
 
         P.O. Box 9130
 
         Des Moines, Iowa 50306-9130
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GENE POUSH,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                   File No. 848302
 
         T-L ALLEN COMPANY,
 
                                                A R B I T R A T I 0 N
 
              Employer,
 
                                                   D E C I S I 0 N
 
         and
 
         
 
         ALLIED MUTUAL INS.CO.,
 
         
 
              Insurance Carrier,
 
               Defendants.
 
          
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Gene Poush, against T-L Allen Company, employer, and Allied 
 
         Mutual Insurance Company, insurance carrier, defendants, to 
 
         recover benefits as a result of an alleged injury sustained on 
 
         December 22, 1986.  This matter came on for hearing before the 
 
         undersigned deputy industrial commissioner in Des Moines, Iowa, 
 
         on January 26, 1990.  The record consists of the testimony of the 
 
         claimant, William John Augustine, Mike Broughton, and Clark 
 
         Williams; and joint exhibits 1 through 10.
 
         
 
                                      ISSUES
 
         
 
              The issues the parties set out in the prehearing report are:
 
         
 
              1. Whether claimant's injury arose out of and in the course 
 
         of his employment;
 
         
 
              2. Whether claimant's alleged disability is causally 
 
         connected to his injury;
 
         
 
              3. The nature and extent of claimant's disability; and
 
         
 
              4. Whether claimant is entitled to 85.27 benefits based on 
 
         lack of causal connection.
 
         
 
         
 
         
 
         POUSH V. T-L ALLEN COMPANY
 
         Page 2
 
         
 
         
 
                              STATEMENT OF THE CASE
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant testified both personally and through his 
 
         deposition taken on April 6, 1988.  Claimant said he graduated 
 
         from high school in 1960 and became an apprentice ironworker in 
 
         1963.  He stated he has had no other formal education since high 
 
         school.  Claimant described the nature of an ironworker's job.  
 
         He is a member of the Ironworkers Union.  Claimant indicated that 
 
         he worked out of the union hall and usually there is work 
 
         approximately nine months out of the year.  He testified that 
 
         usually there is a layoff in December which lasts through March 
 
         when there is a break in the weather.
 
         
 
              Claimant described the Jewish Center project on which he 
 
         worked on and off for several months in 1986.  He said he and 
 
         another person were basically working on this project alone in 
 
         December trying to finish it.  Claimant described the job and the 
 
         use of block and tackle, come-alongs, and tools to put the iron 
 
         up as a "bust-your-butt" type of thing. (Jt. Ex. 1, p. 11) 
 
         Claimant testified that the nature of the work on this Jewish 
 
         Center project involved a lot of lifting and the detailed 
 
         ironwork was harder than normal due to the iron being heavier to 
 
         support the glass incorporated in it.  Claimant revealed he 
 
         strained himself several times during December 1986 while working 
 
         on this Jewish Center project.  Claimant elaborated that 
 
         everything had to be pulled up by rope or tag line rather than by 
 
         crane because the project was enclosed and a crane could not be 
 
         used.
 
         
 
              Claimant testified that on or around December 22, 1986, he 
 
         was working with heavy iron and strained his back and the pain 
 
         would not go away.  Claimant said he thought the pain of the 
 
         strain would go away.  Claimant stated he had a few days off for 
 
         the holidays.  Claimant emphasized he had only returned to the 
 
         job to finish a balcony handrail made of aluminum.  Claimant 
 
         related he notified defendant employer of his injury.  Claimant 
 
         stated that the project was finished immediately after the 
 
         Christmas holiday and he and defendant employer's owner, Mike 
 
         Broughton, cleaned up the premises.  Claimant testified that the 
 
         usual layoff occurred at the end of December 1986 when the Jewish 
 
         Center project was finished.  Claimant said that the more he laid 
 
         around, the worse his back became.  Claimant said he filed for 
 
         and collected unemployment benefits for January and February.  
 
         The claimant emphasized he did not take his full entitlement to 
 
         unemployment benefits because he went to the doctor and was 
 
         unable to work.  Claimant acknowledged that he has done 
 
         supervisory-foreman work since he received his journeyman card in 
 
         1967 and has actually worked in that position at least a third of 
 
         the time.
 
         
 
         
 
         
 
         POUSH V. T-L ALLEN COMPANY
 
         Page 3
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant said he went to Larry D. Hirschy, D.C., on March 2, 
 
         1987.  Claimant revealed he did not tell defendant employer at 
 
         the time because claimant did not want to cause his employer any 
 
         trouble.  Claimant thought he was going to be okay.  Claimant 
 
         stated that it appeared matters were worse than he thought so he 
 
         told defendant employer who told claimant to see a medical 
 
         doctor.  Claimant and defendant employer filled out the report of 
 
         injury together.  Claimant said his business agent referred him 
 
         to G. L. Elliott, M.D., and claimant described his two weeks of 
 
         treatment.  Claimant testified he then received a call from 
 
         defendant insurance company and was referred to a Dr. Rasmussen. 
 
         claimant stated he was sent through therapy for two weeks.  
 
         Claimant indicated he talked to the insurance company and told 
 
         the representative that traction was not helping him and he 
 
         wanted to go back to Dr. Elliott.  Claimant said the insurance 
 
         company indicated to him that Dr. Rasmussen was releasing 
 
         claimant to go back to work.  Claimant explained he was surprised 
 
         because Dr. Rasmussen hadn't seen him for some time.
 
         
 
              Claimant related he tried to go back to work at an Osceola 
 
         project in April or May 1987 and lasted two days.  Claimant said 
 
         this was his first work since the Jewish Center project was 
 
         completed at the end of December 1986.  Claimant said he was 
 
         unable to do the work and his back bothered him and the pain got 
 
         worse.  Claimant said he then went home.  Claimant said he had 
 
         another job putting up railing in Des Moines in the summer of 
 
         1987.  Claimant said he finished this job but did not get through 
 
         it in the best condition.  Claimant described other small jobs he 
 
         was on in 1987.  Claimant indicated he was put on an airport job, 
 
         which was to be an easy job for him.  Claimant emphasized the 
 
         union was trying to get him an easy job, which was to hook up 
 
         loads of steel to be lifted.  Claimant indicated the job involved 
 
         climbing on the roof and putting up steel rafters.  Claimant 
 
         explained he could not do the work and quit after two hours.
 
         
 
              Claimant described the October 1987 Centerville job, which 
 
         was the last job claimant has had since his December 1986 injury.  
 
         Claimant said he had trouble climbing a ladder and doing 
 
         precasting and welding.  Claimant emphasized these tasks are 
 
         normally easy for an ironworker.  He stated he was on this job 
 
         one week.  Claimant said he worked approximately 28 days in 1987.  
 
         Claimant explained his back goes out periodically and it feels 
 
         like a rupture.  Claimant related one incident in 1987 in which 
 
         his back went out and he had to crawl on his knees to the 
 
         bathroom.  Claimant denies any injury hauling firewood.  He said 
 
         his brother brought him a load of wood and they both unloaded it 
 
         at claimant's residence.  Claimant said he had mentioned to Dr. 
 
         Hirschy that hauling and cutting wood, washing dishes and doing 
 
         household chores irritated his back.
 
         
 
         
 
         
 
         POUSH V. T-L ALLEN COMPANY
 
         Page 4
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant was asked regarding any prior injuries and he 
 
         described certain events that were insignificant and have no 
 
         bearing on this case and will not be related herein.
 
         
 
              Claimant said he went to David J. Boarini, M.D., in December 
 
         1987, which doctor suggested a work hardening course.  Claimant 
 
         revealed defendant insurance company said they would not pay for 
 
         it.
 
         
 
              Claimant said the insurance company had Clark Williams, a 
 
         rehabilitation specialist, contact him.  Claimant indicated this 
 
         resulted in claimant being sent to a low back institute around 
 
         April 1989, like the one Dr. Boarini suggested two or three 
 
         months earlier.  Claimant indicated his time at the clinic was 
 
         cut short a week, but he thought he was on his way to recovery.  
 
         Claimant said he called the union hall for light duty work.  
 
         Claimant acknowledged he discussed setting up his own business 
 
         since he wouldn't be able to hold a job.  Claimant said he is a 
 
         certified welder, which is part of his job of being an 
 
         ironworker.
 
         
 
              Claimant said he also saw Robert C. Jones, M.D., who 
 
         suggested a TENS unit, but the insurance company would not pay 
 
         for it.  Claimant emphasized Dr. Jones indicated he couldn't make 
 
         a diagnosis without a myelogram.
 
         
 
              Claimant emphasized there are no advantages to him not 
 
         working.  Claimant said he needs approximately six more years to 
 
         be entitled to union pension retirement.
 
         
 
              Claimant testified that he has borrowed several thousands 
 
         dollars from various sources, including his father, son and a 
 
         friend, in order to survive.  Claimant indicated he has been sued 
 
         for bills incurred since his injury, including nine months of 
 
         delinquent rent.  Claimant described the little welfare help he 
 
         has received.  Claimant said he has lost everything he owned.
 
         
 
              Claimant acknowledged he went to the University of Iowa 
 
         Hospitals in September 1989 and was referred to a physical 
 
         therapist for a $600 treatment program for which claimant could 
 
         not pay.  Claimant said he was to come back to the hospital in 
 
         December 1989 for an evaluation but there was no money to pay the 
 
         bill.  Claimant contends the last bill was not paid and his 
 
         credit was wiped out so he couldn't get into the hospital.  
 
         Claimant understands he needs a myelogram which costs $1500.
 
         
 
              Claimant said he is currently receiving a disability pension 
 
         from the union in the amount of $540 per month until he can work.  
 
         He acknowledged this disability is based on his inability to do 
 
         ironwork, but not just any job.
 
         
 
         
 
         
 
         POUSH V. T-L ALLEN COMPANY
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 5
 
         
 
         
 
              Claimant emphasized he would like to do something.  Claimant 
 
         related he tried vocational rehabilitation and was told that, 
 
         with his age and problems, he should file for social security 
 
         disability.  Claimant said he filed for social security 
 
         disability and was denied.  Claimant said the vocational 
 
         rehabilitation gave him no satisfaction to go on.
 
         
 
              Claimant said he is doing exercises at home on a stationary 
 
         bicycle and also with his son's nautilus weight machine.
 
         
 
              William Augustine testified that he has been an ironworker 
 
         for 25 years.  He said he has known claimant since 1965 and 
 
         described claimant as a good hard working ironworker with a good 
 
         reputation.  Augustine indicated he worked with claimant one day 
 
         on the Jewish Retirement Center project in October 1986.  
 
         Augustine said this job was like any other job.  In other words, 
 
         it involved heavy lifting and putting in detailed ironwork.  He 
 
         said claimant had no complaints of back problems on that 
 
         particular day.
 
         
 
              Augustine testified he next worked with claimant in October 
 
         1987 at a Centerville DOT maintenance job.  He said claimant was 
 
         having back problems going up and down the ladder and welding.  
 
         He indicated claimant told him he couldn't do anything more.  
 
         Augustine testified claimant said his back had been bothering him 
 
         since he got hurt on the Jewish Center project.    Augustine has 
 
         not worked with claimant since the October 1987 Centerville job.
 
         
 
              Sam Morris testified he went to school with claimant and 
 
         they have been long-time friends.  He stated he never knew 
 
         claimant to be out with back problems before October 1986.  He 
 
         said he sees claimant two or three times a week.  He indicated 
 
         claimant has trouble getting up and down.  Morris indicated 
 
         claimant has to sit or lay down when his pain becomes severe.  
 
         Morris acknowledged he has never worked with claimant and does 
 
         not know where the problem started.  Morris testified he does not 
 
         know what claimant has done in the last three years, but he does 
 
         not believe claimant has worked during the last three years.  
 
         Morris indicated claimant doesn't have a car and he takes 
 
         claimant to the store.
 
         
 
              Mike Broughton testified he is the owner of T-L Allen 
 
         Company, a steel erection company, which was a sole 
 
         proprietorship until its incorporation on January 1, 1990.  
 
         Broughton's testimony reaffirmed in many respects claimant's 
 
         testimony as to the jobs and nature of the jobs claimant 
 
         performed for him.  Broughton acknowledged he personally worked 
 
         with claimant in December 1986, which basically involved cleaning 
 
         up the project, picking up the tools and getting out.  Broughton 
 
         admitted claimant told him he hurt his back while working on 
 
         stairs at the Jewish Center job.  Broughton acknowledged claimant 
 
         moved more
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         POUSH V. T-L ALLEN COMPANY 
 
         Page 6
 
         
 
         
 
         slowly and with a limp in December 1986, but he couldn't 
 
         specifically recall the date.  Broughton recalled that on the 
 
         last two days of December claimant appeared to be getting around 
 
         with no difficulty, but admitted the work was lighter these two 
 
         days.  Broughton indicated it is common for an ironworker's back 
 
         to hurt some days more than others after a day of work.  
 
         Broughton agreed claimant strained his back.
 
         
 
              Clark Williams, a rehabilitation consultant, said he was 
 
         referred to claimant by defendants' attorney.  Williams said 
 
         claimant desired to go back to Dr. Boarini and the low back 
 
         clinic.  Williams admitted claimant wanted to go back to be an 
 
         ironworker as he had three or four years to get a pension. 
 
         Williams said claimant wanted to stay at the pain center longer 
 
         than he did.  Williams said he thought at that time claimant was 
 
         feeling fairly decent.  He stated claimant didn't know if he 
 
         could work but wanted to possibly buy a business (muffler shop) 
 
         or check out a welding job possibility.  Williams testified he 
 
         put matters on hold to let claimant explore opportunities.
 
         
 
              Williams stated claimant called him in August 1989 and said 
 
         he had a flare-up and Williams told claimant to go back to the 
 
         Iowa Methodist Medical Pain Clinic.  Williams said that was the 
 
         last he heard from claimant.
 
         
 
              Williams described various possible job opportunities in the 
 
         region that claimant could try.  Williams was reluctant to say 
 
         claimant could go into construction work.  Williams thought 
 
         claimant could go back to work other than ironwork at a wage of 
 
         $1.00 to $1.25 above minimum wage up to $10.00 per hour.  
 
         Williams agreed claimant should not lie to an employer about his 
 
         back condition, but should have a positive attitude.  After 
 
         further questioning, Williams said it could be a truism that if 
 
         an employer knew claimant's back had gone out, claimant could not 
 
         get a job.  Williams also admitted holding a job once obtained, 
 
         is also important.
 
         
 
              Williams emphasized claimant is motivated to be an 
 
         iron-worker and is intent on getting back to work as an 
 
         ironworker to solidify his pension.
 
         
 
              Larry D. Hirschy, D.C., testified by way of deposition on 
 
         April 12, 1988 that he first treated claimant on March 2, 1987.  
 
         He said claimant told him he hurt his back in December 1986 while 
 
         at work and has been off work since that time.  Dr. Hirschy also 
 
         indicated claimant told him that while claimant was working 
 
         around the house moving a piece of firewood, he suffered a 
 
         reinjury of his low back injury that occurred in December 1986. 
 
         (Joint Exhibit 10, Page 3 and 4)
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         POUSH V. T-L ALLEN COMPANY
 
         Page 7
 
         
 
         
 
              Dr. Hirschy described several tests he gave claimant, many 
 
         of which were positive.  He concluded after analyzing a test and 
 
         seeing claimant's x-rays that claimant had a back injury which 
 
         would take some time to work with and to allow him to heal.  Dr. 
 
         Hirschy opined claimant's symptoms originated with his December 
 
         1986 injury and that his injury could have been exacerbated or 
 
         aggravated by any type of lifting or working.  The doctor 
 
         acknowledged that the office form on the back referring to 
 
         whether the injury is from an accident is not filled out.  Dr. 
 
         Hirschy said claimant told him of the wood stacking or cutting 
 
         incident that occurred approximately one week before his March 2, 
 
         1987 exam.  He emphasized claimant's condition at the time was 
 
         acute.  Dr. Hirschy was then asked and answered:
 
         
 
              Q.  Would you anticipate that if they were all as a result 
 
              of something that happened in December that they would still 
 
              be in an acute stage?
 
              
 
              A.  I would anticipate if the injury was sufficient in 
 
              December to cause some structural problems that an 
 
              aggravation of that structural problem would produce an 
 
              acute exacerbation.
 
         
 
         (Hirschy Deposition, Joint Exhibit 10, pages 13-14)
 
         
 
              Robert C. Jones, M.D., a neurologist, testified by way of 
 
         deposition taken May 15, 1989, that he performed an independent 
 
         evaluation of claimant in May 1987.  He opined at that time 
 
         claimant had a low back strain which was developing into a 
 
         chronic low back strain.  The doctor said he injected Novocaine 
 
         and Corticosteriodes in the tender area of claimant's low back on 
 
         the right side.  Dr. Jones said claimant was not able to return 
 
         to his field of ironwork.  The doctor stated he was not certain 
 
         whether claimant was out of his healing period, but felt claimant 
 
         might get better with continued treatment.  Dr. Jones said he saw 
 
         claimant in August and October 1988 and claimant continued to 
 
         have low back complaints.  The doctor felt at that time claimant 
 
         needed to lose weight and find a light job, needed a vocational 
 
         rehabilitation and exercise program, and a physical capacity 
 
         evaluation.  The doctor felt claimant could not return to work 
 
         and his general diagnosis was chronic low back pain and concern 
 
         about chronic pain syndrome.  Dr. Jones described chronic pain 
 
         syndrome as: "This is acute pain that develops into chronic pain 
 
         whereby the patient may have other effects from the pain such as 
 
         depression and so forth and deconditioning because of the lack of 
 
         activity. (Jones Dep., Jt. Ex. 9, p. 8) Dr. Jones said claimant 
 
         had lost ten pounds by his October 1988 exam.  The doctor said on 
 
         the October 1988 exam he found a 5 degree restriction in forward 
 
         bending and in left lateral flexion.  Dr. Jones estimated a 3 to 
 
         5 percent physical impairment.  Dr. Jones said this was a 
 
         somewhat minimal rating.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         POUSH V. T-L ALLEN COMPANY
 
         Page 8
 
         
 
         
 
              Dr. Jones acknowledged that on the August 16, 1988 exam, all 
 
         of claimant's range of motion was normal.  Dr. Jones further 
 
         acknowledged that on the May 1987 visit he did not find anything 
 
         of significance objectively to account for claimant's condition.
 
         
 
              David J. Boarini, M.D., a neurologist, testified through his 
 
         deposition taken June 26, 1989 that he first saw claimant in 
 
         December 1987, at which time claimant complained of low back 
 
         pain.  He said claimant related a work injury in December 1986.  
 
         Dr. Boarini stated a December 1987 exam revealed an obese 
 
         individual with normal range of motion in his back, a normal 
 
         neurological exam and normal.x-rays. Dr. Boarini concluded no 
 
         impairable problem but thought claimant should get into a work 
 
         hardening program before going back to regular work.
 
         
 
              Dr. Boarini testified he next examined claimant in May 1989 
 
         at which time he thought claimant's low back pain was brought on 
 
         by claimant's obesity and probably a bit by his age.  He said 
 
         claimant's examination was normal with no significant loss of 
 
         weight.  He concluded claimant should lift no more than 40 pounds 
 
         routinely and no more than 80 pounds maximally at least until he 
 
         finished the work hardening program.  He said claimant did not 
 
         show up for his June 1989 appointment and he did not know the 
 
         reason why.
 
         
 
              Dr. Boarini said he looked over the records of the Iowa 
 
         Methodist Low Back Institute and then stated:
 
         
 
              Well, they set out that he could work in somewhere between 
 
              heavy to medium work, defining medium work as maximal 
 
              occasional lifting up to fifty pounds, frequent lifting of 
 
              up to twenty-five pounds, on his feet six to eight hours a 
 
              day, that he can do a little more than that.  I would say 
 
              that is an accurate description of how he was when I saw him 
 
              on May 1st -- or May llth, rather.  I think if he were to 
 
              lose a substantial amount of weight and continue the 
 
              exercise program, it might be that we would not have.to have 
 
              those restrictions on him either.
 
         
 
         (Boarini Dep., Jt. Ex. 2, pp. 7-8)
 
         
 
              Dr. Boarini then was asked and answered:
 
         
 
              Q.  Is this much different than it was when you saw him the 
 
              first time?
 
              
 
              A.  No.
 
              
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              Q.  Basically the same?
 
         
 
         
 
         
 
         POUSH V. T-L ALLEN COMPANY 
 
         Page 9
 
         
 
         
 
              A.  Yes.
 
              
 
              Q.  The history that you had when you first saw him was that 
 
              he had been off work for a period of time after a job had 
 
              concluded in December of 1986?
 
              
 
              A.  That's correct.
 
              
 
              Q.  A person of Mr. Poush's physical stature if he were off 
 
              work and inactive for a period of months or so, what would 
 
              his condition be likely to be?
 
              
 
              A.  Worse than if he was active.
 
         
 
         (Boarini Dep., Jt. Ex. 2, p. 8)
 
         
 
              The doctor said claimant did not have an impairable problem.  
 
         Dr. Boarini admitted he had no weight figures of claimant at any 
 
         time.  Dr. Boarini defended his conclusion that claimant's 
 
         condition was caused by claimant's obesity and his age rather 
 
         than on-the-job injury by stating: "I don't think there was an 
 
         injury per se.  He told me that he had the gradual onset of low 
 
         back pain during that job, but that there was no specific 
 
         injury." (Boarini Dep, Jt. Ex. 2, p. 11) Dr. Boarini was than 
 
         asked and answered:
 
         
 
              Q.  Your letter states the difficulties began when he was 
 
              doing some heavy lifting on the job and had the gradual 
 
              onset of low back trouble; is that correct?
 
              
 
              A.  I don't want to argue about what I said in the letter or 
 
              didn't say.  What I'm telling you is what the patient told 
 
              me was that he had the gradual onset.  My notes say that he 
 
              was doing some heavy lifting that came on slowly, no injury.  
 
              He was able to finish the job and was subsequently laid off.
 
              
 
              ....
 
              
 
              Q.  So you're saying now if he was fat and could lift iron 
 
              and after he hurt his back he was still fat and could not 
 
              lift iron, the reason he can't lift iron now is because he 
 
              is obese?
 
              
 
              A.  That's correct.  When someone is forty-seven years old 
 
              and weighs two hundred and forty-five pounds, they're going 
 
              to increasingly year after year have more trouble with their 
 
              low back.  It is not because of a lifting incident at one 
 
              specific time.  It's because they're now middle aged, obese 
 
              and in poor physical
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         POUSH V. T-L ALLEN COMPANY 
 
         Page 10
 
         
 
         
 
              condition; and that is what is this gentleman's trouble.
 
              
 
              Q.  So it is mere coincidence that he was doing heavy 
 
              lifting and he had these difficulties or felt pain related 
 
              to that heavy lifting?
 
              
 
              A.  It's not a coincidence, but there was no injury done at 
 
              the time.  You become less and less able to do things like 
 
              heavy lifting when you carry a large amount of weight and 
 
              get older.
 
              
 
              Q.  If he felt pain after he lifted a piece of iron that was 
 
              too heavy, are you telling me that pain had nothing to do 
 
              with his back problem which he now suffers?
 
              
 
              A.  No. I'm telling you that that did not cause an injury 
 
              which is still causing him to have trouble.
 
              
 
              Q.  Are you telling me that Mr. Poush can perform as an 
 
              ironworker --
 
              
 
              A.  I'm not telling you that.
 
              
 
              Q.  Let me finish the question, Doctor.  Is it your 
 
              statement that he can perform as an iron worker if he can 
 
              lift up to eighty pounds?
 
              
 
              A.  I'm not telling you that either.
 
         
 
         (Boarini Dep., Jt. Ex. 2, p. 11-13)
 
         
 
              Dr. Boarini emphasized claimant's condition is brought about 
 
         by obesity and deconditioning.
 
         
 
              X-rays taken July 29, 1989 at the Iowa Methodist Hospital, 
 
         Department of Radiology, reflect:
 
         
 
                 08-01-89 Computerized axial tomography of the lumbar 
 
              spine; multiple axial sections were taken from the L3 
 
              through Sl level.  The L3-4 level shows a moderate 
 
              generalized disc bulge with compression of thecal sac at 
 
              this level.  Displacement of the exiting four nerve roots 
 
              bilaterally is suspected.
 
              
 
                 The L4-5 level shows a mild disc bulge with mild canal 
 
              stenosis associated with ligamentous and articular facet 
 
              hypertrophy is present.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         POUSH V. T-L ALLEN COMPANY
 
         Page 11
 
         
 
         
 
                 The L5-Sl level shows a midline disc herniated with 
 
              slight extension to the right suspected and some 
 
              displacement of the Sl nerve root is suspected although not 
 
              as clearly defined.  No other abnormalities are noted.
 
              
 
                 Impression:  The prominent disc bulge at the 3-4 level 
 
              and the probable disc herniation at the 5-1 level are noted.  
 
              MRI scanning would be of more help if confirmation of the 
 
              extent of these two lesions and the involvement of adjacent 
 
              nerve roots.
 
         
 
         (Jt. Ex. 8, p. 3)
 
         
 
              The Iowa Methodist report on May 24, 1989 reflect that the 
 
         patient is motivated and wants to continue with the strengthening 
 
         and flexibility program after discharge to continue his 
 
         improvement.  These records further reflect:
 
         
 
                 The patient was encouraged to look at each jobs physical 
 
              demands that he will encounter and to use good body 
 
              mechanics and good judgement in not overexerting himself.  
 
              To use equipment to assist him with any heavy work and to be 
 
              selective, if possible, in his first jobs so he does not 
 
              overexert himself in his eagerness to return to his trade.
 
              
 
                 At discharge, patient was not happy to have received a 
 
              weight limitation of 80 pounds maximum and 40 pounds 
 
              frequent by you; patient would like to have had no 
 
              restriction.  I informed him that a restriction is for his 
 
              benefit as it would help him not over exceed his physical 
 
              abilities and maybe in time he could handle heavier weight 
 
              but it would depend upon at what range he was handling the 
 
              materials.  The patient would have a difficult time handling 
 
              heavy weight above his shoulder height and below his knees.
 
         
 
         (Jt. Ex. 8, p. 12)
 
         
 
              Iowa Methodist Low Back Institute records on August 15, 1989 
 
         reflect:
 
         
 
              As to Mr. Poush's age and preceding description of prior 
 
              instances of increasing low back pain which have been 
 
              becoming more intense and more frequent in occurrence and 
 
              the radiculopathy discomfort into the left lower extremity, 
 
              I strongly feel that he has some form of disc involvement or 
 
              some form of nerve root
 
              
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         POUSH V. T-L ALLEN COMPANY
 
         Page 12
 
         
 
         
 
              irritation that would warrant some type of MRI or CT 
 
              scanning to rule out a disc injury.
 
         
 
         (Jt. Ex. 8, p. 9)
 
         
 
              Clark Williams, the rehabilitation consultant, prepared a 
 
         report dated July 5, 1989, in which one conclusion is of 
 
         particular note, namely:
 
         
 
              Mr. Poush impressed this consultant as an individual who has 
 
              a desire to return to work for his current employer or 
 
              working out of the Local Ironworkers' Union Hall as he 
 
              recognizes the fact that his salary is quite good and he 
 
              realizes that he would have difficulty in earning that 
 
              salary elsewhere without further training.
 
         
 
         (Jt. Ex. 8, p. 30)
 
         
 
              On April 11, 1988, Dr. Boarini wrote a letter stating a zero 
 
         impairment rating and recommended work hardening and weight loss.  
 
         On August 7, 1988, he wrote that claimant was back into his 
 
         office July 26, 1989.  He said x-rays showed a "somewhat 
 
         prominent disc bulge at L-3, 4 and a possible disc herniation at 
 
         L-5, S-1." He did not think "the present episode is directly 
 
         related to his previous accident." (Jt. Ex. 8, p. 36)
 
         
 
              On October 12, 1988, Dr. Jones wrote:
 
         
 
                 I feel this gentleman has a chronic low back strain with 
 
              symptoms that wax and wane.
 
              
 
                 He needs a very conscious program of weight reduction, 
 
              vocational rehabilitation and an exercise program.  A MRI 
 
              scan of the low back would be desirable.  Because of the 
 
              length of time this has all been going on he may have 
 
              developed a chronic pain syndrome.
 
              
 
                 His neurologic findings were normal and I feel that he 
 
              has a 5 degree restriction in forward bending and 5 degree 
 
              restriction in left lateral flexion.  I would estimate his 
 
              physical impairment to be in the 3% to 5% range.
 
              
 
                 I have also suggested a TENS unit:to help him with his 
 
              discomfort and this could help him to become more active.  
 
              To establish what he can and can't do a physical capacity 
 
              evaluation could be done and this would give an objective 
 
              reading as to his capabilities.
 
         
 
         (Jt. Ex. 8, p. 71)
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         POUSH V. T-L ALLEN COMPANY 
 
         Page 13
 
         
 
         
 
              On December 7, 1989, Dr. Jones' medical exam report 
 
         reflects:
 
         
 
              As a result of my examination I find the patient to be 
 
              totally disabled by bodily injury or disease so as to be 
 
              prevented thereby from engaging in any further employment as 
 
              an Iron Worker or as any other type of Building Trades 
 
              Craftsman, and that such disability will be permanent and 
 
              continuous during the remainder of his life.
 
              
 
                 ....
 
              
 
              Diagnosis:  Chronic recurring low back strain.
 
              
 
              History:  Since hurt back on job.
 
              
 
              Date Total Disability Started:  ... October 187
 
         
 
         (Jt. Ex. 11)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on December 22, 1986 which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of December 22, 1986 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 
         Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 IN.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903;(Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         POUSH V. T-L ALLEN COMPANY
 
         Page 14
 
         
 
         
 
         516, 133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
         N.W.2d 128.
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore 
 
         plain that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              The opinion of the supreme court in Olson v..Goodyear 
 
         Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251 (1963), cited 
 
         with approval a decision of the industrial commissioner for the 
 
         following proposition:
 
         
 
              Disability * * * as defined by the Compensation Act means 
 
              industrial disability, although functional disability is an 
 
              element to be considered.... In determining industrial 
 
              disability, consideration may be given to the injured 
 
              employee's age, education, qualifications, experience and 
 
              his inability, because of the injury, to engage in 
 
              employment for which he is fitted. * * * *
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Iowa Code section 85.34(l) provides that if an employee has 
 
         suffered a personal injury causing permanent partial disability, 
 
         the employer shall pay compensation for a healing period from the 
 
         day of the injury until (1) the employee returns to work; or (2) 
 
         it is medically indicated that significant improvement from the 
 
         injury is not anticipated; or (3) until the employee is medically 
 
         capable of returning to substantially similar employment.
 
         
 
              This 47-year-old claimant is a high school graduate and has 
 
         been an ironworker for the majority of his adult life.  
 
         Claimant's current skills are as an ironworker, which includes 
 
         certification as a welder.  It is undisputed that the work as an 
 
         ironworker is considered heavy duty work.  The ability to lift, 
 
         pull and carry very heavy objects, climb, stand and weld, are 
 
         very important parts of an ironworkers' job.  Claimant was an 
 
         employee of defendant employer on the alleged date of his injury,
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         POUSH V. T-L ALLEN COMPANY 
 
         Page 15
 
         
 
         
 
         December 22, 1986.  There has been considerable questioning as to 
 
         the exact date of the injury.  It appears defendants are 
 
         questioning whether a specific trauma occurred, especially since 
 
         it appears claimant did continue working additional days in 
 
         December of 1986 and several days in the spring and summer of 
 
         1987.  Defendants contend that claimant injured himself while 
 
         lifting firewood in March 1987 which more than likely resulted in 
 
         claimant's complaints.  The undersigned believes the claimant 
 
         received a low back injury in December of 1986 while working on 
 
         the Jewish Center project.  The nature of the job and heavy 
 
         lifting and welding required is undisputed.  Defendant employer 
 
         acknowledged claimant told them he hurt himself in December 1986.  
 
         December 22 is a Monday.  Claimant was off December 23, 24 and 
 
         25.  Part of this was during the Christmas holidays.  It would 
 
         appear, looking at the records, that claimant normally would not 
 
         be off December 23, but it is reasonable that claimant was off 
 
         December 24 and 25 for the holidays and, in fact, returned to 
 
         work the day after Christmas.  Being off the three days helped 
 
         claimant in his attempt to recuperate.
 
         
 
              It is undisputed that an ironworker obviously has pains and 
 
         bruises as a part of his job.  Claimant thought his extra strain 
 
         and lifting steel on December 22, 1986 was another one of those 
 
         occasions.  Claimant tried to work through this hoping, as often 
 
         in the past, his injury was only a short term sprain.  Claimant 
 
         is motivated.  He didn't want to upset the employer with any 
 
         claim.  Claimant continued to work in order to finish the job by 
 
         the end of December 1986.  The usual layoff in January and 
 
         February and possibly March was again approaching and, in fact, 
 
         occurred.  Claimant attempted to take advantage of this layoff 
 
         period to recuperate.  Claimant obviously isn't a complainer.  
 
         Claimant continued to live and support himself as a single sole 
 
         provider.  Claimant helped unload some cut wood and twisted 
 
         wrong, aggravating his already injured back in March 1987.  
 
         Claimant finally concluded he should seek medical help as he was 
 
         getting worse.  The undersigned finds claimant received a 
 
         work-related low back injury on December 22, 1986 while lifting, 
 
         welding and working on a steel stairway at the Jewish Center 
 
         project and missed work on December 23.  Claimant was also off 
 
         the project because of the holidays on December 25 and possibly 
 
         December 24.
 
         
 
              The medical evidence leaves much to be desired.  It appears 
 
         part of the problem is the lack of apparent medical services and 
 
         continuity, or sufficient follow-up or suggested medical services 
 
         being done.  There is no medical doctor specifically saying 
 
         claimant's condition is causally connected to a specific injury.  
 
         It appears the fact claimant didn't seek medical help until March 
 
         adds to this causation issue. one doctor in particular, Dr. 
 
         Boarini, leaves a clear impression that since, in his opinion, 
 
         there is no specific identified single trauma, there is no
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         POUSH V. T-L ALLEN COMPANY 
 
         Page 16
 
         
 
         
 
         injury.  He blames claimant's obesity and lack of conditioning as 
 
         a cause of claimant's problem.  The undersigned believes the 
 
         position of Dr. Boarini is contrary to medical reality. (Dr.  
 
         Boarini's dep., pp 17-23) The longer a person is laid up with an 
 
         injury and unable to work, the more severe the weight problem and 
 
         deconditioning can become.  The undersigned must completely 
 
         discount Dr. Boarini's medical conclusions.  His medical 
 
         credibility in this case was further destroyed by his testimony 
 
         in which he wants the undersigned to believe that, if claimant 
 
         was fat and could lift iron before December 22, 1986 and was 
 
         still fat and could not lift iron after claimant hurt his back, 
 
         the reason claimant can't lift is because he is obese.  Dr. 
 
         Boarini has no record of claimant's weight before his injury or 
 
         anytime after his injury in December 1986 nor did he take his 
 
         weight or determine it at any time during his treatment of the 
 
         claimant.
 
         
 
              Dr. Robert Jones opined on October 12, 1988 a 3 to 5 percent 
 
         physical impairment to claimant's low back.  Joint exhibit 11 
 
         reflects a report from Dr. Jones where he noted claimant was 
 
         totally disabled from employment as an ironworker or as any other 
 
         type of building trade craftsman and that this disability would 
 
         be permanent.  Dr. Jones wrote the same or similar diagnosis that 
 
         he had made in 1987 and 1988, namely, chronic recurring low back 
 
         strain.
 
         
 
              It is not unusual for the type of injury claimant incurred 
 
         to be easily aggravated and/or gradually become worse.  It is 
 
         often hard to define and detect the total nature of type of 
 
         injury, especially without several tests or procedures including 
 
         x-rays, myelogram, CT scan and MRI.  Although there were x-rays 
 
         originally taken, there was at least one comment as to their poor 
 
         quality in some respects.  Claimant has been complaining since 
 
         December 22, 1986 of his low back problem.  Claimant has not been 
 
         performing the normal duties of an ironworker for over two years.  
 
         There has been nothing materially shown that claimant has 
 
         received another injury to cause his current condition other than 
 
         his December 22, 1986 work injury at the Jewish Center project.  
 
         Any lifting, twisting, sneezing, sitting or sleeping movements 
 
         can aggravate his condition.  These have not caused another 
 
         injury.
 
         
 
              The x-ray report (jt. ex. 8, p. 3) indicates a midline 
 
         herniated disc and a prominent disc bulging at the L3-4 level.  
 
         No doctor's testimony addresses this as this x-ray was taken 
 
         after the depositions.  No myelogram or MRI was ever taken by the 
 
         testifying doctors.  Dr. Jones' December 7, 1989 report refers to 
 
         the date claimant's total disability started.  It originally had 
 
         the date of December 27, 1986, and this date was crossed out and 
 
         October 1987 was inserted.  Defendants appear to contend this 
 
         means a new injury since the December 27, 1986 date is close to 
 
         claimant's December 22, 1986 injury.  Taking the evidence as a
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         POUSH V. T-L ALLEN COMPANY 
 
         Page 17
 
         
 
         
 
         whole, it is clear to the undersigned that claimant tried to work 
 
         and last worked a few hours in Centerville in October 1987.  It 
 
         is obvious this is the reason for the October 1987 date 
 
         signifying the beginning of claimant's total disability as far as 
 
         Dr. Jones is concerned. claimant has not worked since that date.  
 
         The December 1989 report was made by the doctor to support 
 
         claimant's claim for total disability benefits from the 
 
         ironworkers disability program.  It is the prerogative of the 
 
         undersigned to determine disability.  The doctor determines 
 
         impairment.  The doctor obviously is trying to point out that 
 
         claimant is not able to perform the duties the doctor understands 
 
         are necessary to be performed by an ironworker and, therefore, is 
 
         disabled as to that particular occupation.  Taking all of Dr. 
 
         Jones' testimony and reports into consideration, the undersigned 
 
         believes Dr. Jones' position at a minimum is that claimant cannot 
 
         perform his job as an ironworker because of his condition.
 
         
 
              The undersigned finds claimant's current low back condition 
 
         is causally connected to his low back injury on December 22, 
 
         1986.  The undersigned further finds claimant has a permanent 
 
         impairment.  A question looms in the undersigned's mind whether 
 
         claimant has completely healed and, if so, when the maximum 
 
         healing was reached or whether claimant is still recovering.  
 
         Claimant needs more thorough medical attention and tests in a 
 
         timely manner to be paid for by defendants.  The medical 
 
         personnel should involve persons who are not prejudice due to 
 
         this decision or their prior conclusions which may have been 
 
         questioned herein.
 
         
 
              Claimant has a high degree of motivation to return to 
 
         ironworker-type work so he can finish his five to six years as an 
 
         ironworker and be entitled to a reasonable pension.  Claimant's 
 
         good motivation has been referred to several times in the record, 
 
         including referral by defendants' vocational rehabilitation 
 
         expert. of particular note was claimant's unhappiness over the 
 
         reality of his restrictions placed on him by the Iowa Methodist 
 
         Low Back Institute. (Jt. Ex. 8, p. 12) Claimant wanted to return 
 
         to his trade.  Claimant has many other reasons to be motivated.  
 
         He is living in very poor conditions and has lost literally every 
 
         asset he owned at the time of his injury.  He is heavy in debt to 
 
         relatives, friends and others in order to survive.  It is not 
 
         unreasonable for claimant to set his aim on returning to, work as 
 
         an ironworker rather than an attempt to get any low paying job 
 
         for the sake of obtaining one.  He is receiving $606 per month 
 
         gross union disability benefits for being disabled as an 
 
         ironworker.  If he obtained a job at $4.00 per hour, which is 
 
         above minimum wage, he would come out about the same.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Defendants' rehabilitation expert indicates he could find 
 
         claimant a job if given the chance.  Obviously, it would be much
 
         
 
         
 
         
 
         POUSH V. T-L ALLEN COMPANY 
 
         Page 18
 
         
 
         
 
         less than claimant's ironworker wage and would not help claimant 
 
         to obtain his ironworkers pension.  Mr. Williams seemed 
 
         disappointed that at least one of claimant's work hardening 
 
         programs did not continue longer as claimant appeared to be 
 
         making progress.  The undersigned believes defendant insurance 
 
         company pulled the financial carpet out from under claimant as to 
 
         complete medical care more than once.
 
         
 
              Mr. Williams, under cross-examination, obviously concluded 
 
         claimant cannot do the job of an ironworker.  As to other jobs, 
 
         Williams indicated claimant should be positive and not relate or 
 
         disclose his back problems.  Williams emphasized claimant should 
 
         be honest.  Williams isn't facing the reality of the marketplace.  
 
         Being completely up front prevents many ultimate problems later.  
 
         Claimant has enough current problems without getting into another 
 
         predicament and lose his current disability payments even 
 
         temporarily.
 
         
 
              The undersigned finds claimant has a permanent partial 
 
         work-related impairment to his low back which was caused by his 
 
         December 22, 1986 injury.
 
         
 
              There is no medical testimony as to the extent of claimant's 
 
         healing period or when claimant reached maximum improvement, 
 
         except joint exhibit 11.  Claimant appeared to still be in the 
 
         improving stage or possibility of improving when he went to the 
 
         Iowa Methodist Low Back Institute.  Joint exhibit 8, page 11, 
 
         reflects a degree of improvement in claimant during his stay in 
 
         the program up to his completion of the program on May 19, 1989.  
 
         Claimant attempted a return to work on a few occasions in 1987.  
 
         Joint exhibit 11 shows Dr. Jones noted claimant's total 
 
         disability started in October 1987.  Claimant has not worked 
 
         since his Centerville job in October 1987.  The undersigned finds 
 
         claimant's healing period began January 2, 1987 and ended on and 
 
         including October 15, 1987.  Defendants shall be given credit for 
 
         the 28 days that claimant worked in 1987.  Benefits shall be 
 
         payable at the rate of $244.56 per week.  Defendants shall pay 
 
         all of claimant's medical bills resulting from his December 22, 
 
         1986 injury.
 
         
 
              The greater weight of evidence indicates claimant is not 
 
         able to perform his former job as an ironworker.  There is 
 
         insufficient evidence to show claimant is not employable at any 
 
         job considering his skill as a certified welder.    Claimant has 
 
         not proven he is totally disabled.  Based on the present record, 
 
         claimant has lost a substantial earning capacity as an 
 
         ironworker.  Loss of substantial earnings is one thing to be 
 
         taken into consideration in determining claimant's industrial 
 
         disability.  After considering all those elements in determining 
 
         one's industrial disability, the undersigned finds claimant has 
 
         an 80 percent industrial disability.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         POUSH V. T-L ALLEN COMPANY
 
         Page 19
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, it is found:
 
         
 
              1.  Claimant injured his low back on December 22, 1986, as a 
 
         result of lifting steel at the Jewish Center project of defendant 
 
         employer.
 
         
 
              2. Claimant's low back condition is the result of his injury 
 
         on December 22, 1986.
 
         
 
              3. Claimant has a permanent impairment to his body as a 
 
         whole as a result of his December 22, 1986 work-related injury.
 
         
 
              4. Claimant is no longer able to perform the duties of an 
 
         ironworker as a result of his December 22, 1986 work injury.
 
         
 
              5. Claimant incurred a healing period beginning January 2, 
 
         1987 to and including October 15, 1987, which involves 41 weeks 
 
         against which there is a credit of 5.429 weeks (28 work days) of 
 
         work.
 
         
 
              6. Although defendants provided and paid for some medical 
 
         services rendered to claimant, defendants failed to provide the 
 
         necessary and sufficient services and tests to help claimant 
 
         reduce the ultimate impairment and loss of earning capacity 
 
         incurred by claimant as a result of his December 22, 1986 injury.
 
         
 
              7. Claimant has a substantial loss of earning capacity as a 
 
         result of his December 22, 1986 work-related injury.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Claimant's low back injury on December 22, 1986 arose out of 
 
         and in the course of claimant's employment.
 
         
 
              Claimant's low back condition and permanent impairment to 
 
         his body as a whole is causally connected to his December 22, 
 
         1986 work-related injury.
 
         
 
              Claimant's ability to no longer perform his duties as an 
 
         ironworker is causally connected to his December 22, 1986 work 
 
         injury.
 
         
 
              Claimant incurred a net healing period of 35.571 weeks at 
 
         the rate of $244.56.
 
         
 
              Claimant has an 80 percent industrial disability.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Defendants shall pay all claimant's medical bills incurred 
 
         as a result of his December 22, 1986 injury.
 
         
 
         
 
         
 
         POUSH V. T-L ALLEN COMPANY
 
         Page 20
 
         
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants shall pay unto claimant healing period 
 
         benefits at the rate of two hundred forty-four and 56/100 dollars 
 
         ($244.56) for the period beginning January 2, 1987 through 
 
         October 15, 1987 minus credit for five point four two nine 
 
         (5.429) weeks claimant worked in 1987, which leaves a total net 
 
         healing period of thirty-five point five seven one (35.571) 
 
         weeks.
 
         
 
              That defendants shall pay unto claimant four hundred (400) 
 
         weeks of permanent partial disability benefits at the rate of two 
 
         hundred forty-four and 56/100 dollars ($244.56) per week.
 
         
 
              That defendants shall pay the accrued weekly benefits in a 
 
         lump sum.
 
         
 
              That defendants shall pay claimant's medical expenses 
 
         incurred as a result of the December 22, 1986 injury
 
         
 
              That defendants shall pay interest on benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              That defendants shall pay the costs of this action, pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants shall file an activity report upon payment 
 
         of this award as required by this agency, pursuant to Division of 
 
         Industrial Services Rule 343-3.1
 
         
 
              Signed and filed this 21st day of February, 1990.
 
         
 
         
 
         
 
         
 
                                         BERNARD J. O'MALLEY
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies to:
 
         
 
         Mr Mark Pennington
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Attorney at Law
 
         218 6th Ave
 
         Ste 620
 
         Des Moines IA  50309
 
         
 
         Mr Robert C Landess
 
         Attorney at Law,
 
         Terrace Ctr Ste 111
 
         2700 Grand Ave
 
         Des Moines IA 50312
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         51100; 51108.50; 52500
 
                                         51803
 
                                         Filed February 21, 1990
 
                                         Bernard J. O'Malley
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GENE POUSH,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                File No. 848302
 
         T-L ALLEN COMPANY,
 
                                             A R B I T R A T I 0 N
 
              Employer,
 
                                                D E C I S I 0 N
 
         and
 
         
 
         ALLIED MUTUAL INS.CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         51100
 
         
 
              Found claimant's injury arose out of and in the course of 
 
         his employment.
 
         
 
         51108.50
 
         
 
              Found claimant's low back condition causally connected to 
 
         his work injury.
 
         
 
         52500
 
         
 
              Defendants denied liability; therefore, could not prevail 
 
         under 85.27.
 
         
 
         51803
 
         
 
              Claimant found to have an 80% industrial disability.