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                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SANDRA WEISHAAR,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :   File Nos. 847903/848681
 
                                          :             848682
 
            SNAP-ON TOOLS CORPORATION,    :
 
                                          :          A P P E A L
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            ROYAL INSURANCE,              :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Claimant appeals from an arbitration decision awarding 
 
            permanent partial disability benefits as the result of an 
 
            alleged injury on September 3, 1985.
 
            
 
                 The record on appeal consists of the transcript of the 
 
            arbitration proceeding; joint exhibits 1 through 18; 
 
            claimant's exhibits 1 through 14; and defendants' exhibits X 
 
            through FF.  Both parties filed briefs on appeal.  Claimant 
 
            filed a reply brief.
 
            
 
                                      ISSUES
 
            
 
                 Claimant states the following issues on appeal:
 
                                        
 
            
 
                 I.  Did the deputy err by holding that Sandy had 
 
                 alleged only a cumulative injury to her shoulders 
 
                 and back on April 29, 1986?
 
            
 
                 II.  Did the deputy err by failing to consider 
 
                 whether the disabilities to Sandy's shoulders were 
 
                 sequelae of the injury to her hands?
 
            
 
                 III.  Did the deputy err by failing to consider 
 
                 whether the disabilities to Sandy's elbows were 
 
                 part of the injury to her arms or of the sequelae 
 
                 of the injury to her hands?
 
            
 
                 IV.  If the deputy did not err by failing to 
 
                 assign any disability to the shoulders and/or the 
 
                 elbows then did he err by failing to reduce 
 
                 Snap-on's credit for permanent partial disability 
 
                 benefits already paid?
 
            
 
                 V.  Did the deputy err by failing to consider 
 

 
            
 
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                 whether there had been a cumulative injury to 
 
                 Sandy's shoulders which had occurred from 
 
                 approximately April 29, 1986, to the time she was 
 
                 laid off from work on December 29, 1988?
 
            
 
                 VI.  Did the deputy err by failing to consider 
 
                 whether there had been an unitary or single 
 
                 cumulative injury and disability to Sandy's arms 
 
                 and shoulders extending to her upper mid back?
 
            
 
                 VII.  Did the deputy err by failing to consider 
 
                 whether the odd lot doctrine should be employed in 
 
                 the determination of Sandy's disabilities?
 
            
 
                 VIII.  Did the deputy err in failing to consider 
 
                 the extent of industrial disability Sandy had 
 
                 sustained?
 
            
 
                 IX.  Did the deputy err by failing to award 
 
                 section 86.13 penalties?
 
            
 
                 X.  Did the deputy err by failing to direct the 
 
                 manner in which statutory interest was to be 
 
                 calculated?
 
            
 
                 XI.  Did the deputy err by failing to award 
 
                 additional healing period benefits?
 
            
 
                              REVIEW OF THE EVIDENCE
 
            
 
                 The arbitration decision adequately and accurately 
 
            reflects the pertinent evidence and it will not be 
 
            completely set forth herein.  Briefly stated, claimant first 
 
            experienced pain in her right hand on September 3, 1985.  On 
 
            December 18, 1985, Thomas F. DeBartolo, M.D., found claimant 
 
            to have severe right carpal tunnel, and mild carpal tunnel 
 
            syndrome on the left.  On January 3, 1986, claimant 
 
            underwent carpal tunnel surgery on her right hand.
 
            
 
                 On April 29, 1986, claimant was examined by Dr. 
 
            DeBartolo, who noted that claimant suffered numbness in her 
 
            hands when she was engaged in sanding at work.  Claimant 
 
            complained of discomfort in the forearm, wrist, and shoulder 
 
            areas.  Claimant returned to Dr. DeBartolo after five or six 
 
            months with more complaints of pain in the hands.  
 
            
 
                 From August 16-24, 1986, claimant was off work for 
 
            another injury.  On November 4, 1986, claimant complained of 
 
            pain in her left hand to Dr. DeBartolo, and discomfort in 
 
            her shoulder.
 
            
 
                 Sometime in November 1986, a file cabinet fell on 
 
            claimant and struck her neck and shoulder area.  Claimant 
 
            began seeing Michael W. Crane, M.D., in 1987 for shoulder 
 
            pain.
 
            
 
                 On January 6, 1987, Dr. DeBartolo gave claimant a 
 
            permanent partial impairment rating of 16 percent of the 
 
            right extremity; 15 percent of the left extremity, for a 
 
            combined rating of 29 percent, or 17 percent of the whole 
 

 
            
 
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            person.
 
            
 
                 On January 28-29, 1987, claimant complained of right 
 
            upper mid-back pain.  Claimant experienced pain when trying 
 
            to free a stuck drawer at work.  Claimant consulted Stephen 
 
            D. Richards, D.O., and was off for five weeks, until 
 
            February 25, 1987.  On March 6, 1987, claimant consulted 
 
            Kenton K. Moss, M.D., concerning an elbow contusion.
 
            
 
                 On March 9, 1987, claimant complained of pain in both 
 
            upper extremities extending into the shoulders.  Claimant 
 
            was released from work by Jay D. Mixdorf, M.D., for six 
 
            weeks.  Claimant was also noted to be suffering from 
 
            depression during March and April of 1987.
 
            
 
                 On April 4, 1987, claimant was examined by Dr. Mixdorf, 
 
            who found normal upper extremities, and no symptoms of 
 
            carpal tunnel syndrome.  Claimant was found to have trigger 
 
            points in her upper back.  On April 20, 1987, claimant 
 
            returned to work without restrictions. 
 
            
 
                 On May 4, 1987, claimant filed a petition alleging a 
 
            cumulative injury occurring from 1982 to the time of the 
 
            filing of the petition.  Claimant was later ordered to 
 
            allege specific injury date or dates, and subsequently 
 
            alleged the following injury dates:  September 3, 1985, 
 
            right wrist (date of first medical treatment, case #847903); 
 
            April 14, 1986, left wrist (date of first medical treatment, 
 
            case #848681); and April 29, 1986, shoulders and back (date 
 
            of first treatment, case #848682).
 
            
 
                 On May 11, 1987, Dr. Mixdorf found claimant's pain in 
 
            her shoulders to result not from the median nerve, but from 
 
            a trapezius muscle spasm.  Claimant's discomfort in her 
 
            shoulders resulted simply from using them, and did not 
 
            restrict her work activity.  Dr. Mixdorf imposed 
 
            restrictions of not lifting over 15 pounds, and rotation in 
 
            work duties every two hours.
 
            
 
                 On June 22, 1987, claimant was granted a three month 
 
            leave of absence for educational purposes.  The testimony 
 
            indicated that this length of leave had never previously 
 
            been granted by the employer.  
 
            
 
                 On June 25, 1987, David J. Boarini, M.D., examined 
 
            claimant, and assigned permanent partial impairment ratings 
 
            of three to five percent right arm, zero percent left arm.  
 
            No rating for the shoulders or back was given.  Claimant 
 
            alleges Dr. Boarini did not examine her shoulders.
 
            
 
                 On July 8, 1987, Dr. Moss examined claimant's 
 
            shoulders, and found them to be better but tender.  Dr. Moss 
 
            advised that claimant should rotate her work duties if she 
 
            returned to work.
 
            
 
                 On September, 28, 1987, Dr. Moss noted that claimant 
 
            was back at work for one week and experienced discomfort in 
 
            her shoulders.
 
            
 
                 On October 20, 1987, C. B. Carignan, Jr., M.D., 
 

 
            
 
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            examined claimant and found normal range of motion and 
 
            strength in both hands, with some residual paresthesia, 
 
            permanent, both hands.  Dr. Carignan assigned claimant a 
 
            rating of 8.5 percent of the whole person (11.5 percent 
 
            impairment right arm, 5.5 percent impairment left arm).
 
            
 
                 On November 10, 1987,  Robert F. Breedlove, M.D., 
 
            assigned claimant a 12 percent of the whole person rating, 
 
            combining both the left and right upper extremities (10 
 
            percent and 9.5 percent extremity = 6 percent whole person 
 
            for each).  Dr. Breedlove found no permanent impairment of 
 
            the shoulders.  
 
            
 
                 On January 15, 1988, claimant was seen by Dr. Richards 
 
            for right upper mid back pain, which began the day before 
 
            after claimant tried to move a large dye weighing 300-400 
 
            pounds.
 
            
 
                 On March 9, 1988, claimant went to her personal 
 
            physician, Dr. Fuller, who took her off work for five weeks, 
 
            until April 16, 1988, for irregular heart beat due to work 
 
            stress.
 
            
 
                 On April 15, 1988, claimant was examined by Michael W. 
 
            Crane, M.D.  Dr. Crane issued a rating, which he indicated 
 
            was based on subjective findings, of 10 percent right upper 
 
            extremity; 5 percent left upper extremity; 3 percent for 
 
            each elbow; 2 percent each shoulder.  Dr. Crane's total 
 
            impairment rating (including pain) was 15 percent of the 
 
            whole person. However, Dr. Crane noted that he found no 
 
            abnormalities in the shoulder, and his rating of the 
 
            shoulder was based strictly on pain.  Claimant was diagnosed 
 
            as suffering from chronic tendonitis of the shoulder girdle, 
 
            and mild carpal tunnel syndrome.
 
            
 
                 On April 20, 1988, Dr. Richards opined that claimant 
 
            suffered from overuse tendonitis of both shoulders.  On May 
 
            4, 1988, Dr. Richards noted that defendants had asked 
 
            claimant to lift 50 pound boxes at work in violation of her 
 
            lifting restrictions.  Claimant was taken off work until May 
 
            19, 1988.
 
            
 
                 On May 18, 1988, claimant was again seen by Dr. 
 
            Richards.  Dr. Richards imposed a lifting restriction of not 
 
            over 15 pounds, and rotation of work duties every two hours.
 
            
 
                 On June 3, 1988, Dr. Bottjen diagnosed claimant as 
 
            suffering from chronic tendonitis of the right shoulder.  On 
 
            June 7, 1988, Robert F. Breedlove, M.D., rated claimant's 
 
            shoulders as zero impairment.  Although claimant testified 
 
            that Dr. Bottjen refused to examine her shoulders and only 
 
            examined her hands, Dr. Bottjen reported that claimant 
 
            suffered from tenderness and a positive impingement sign in 
 
            the shoulders, but had full range of motion in the 
 
            shoulders. 
 
            
 
                 On June 9, 1988, Dr. Crane diagnosed tendonitis, both 
 
            shoulders, which he described as subjective.  He indicated 
 
            that claimant's tendonitis was simply a muscle pull area at 
 
            most.  Dr. Crane suggested claimant restrict working above 
 

 
            
 
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            shoulder level, but keep working.  Dr. Crane indicated that 
 
            of the 25 percent rating of impairment, four percent was 
 
            applicable to the whole person and 21 percent to the upper 
 
            extremity.
 
            
 
                 On July 5, 1988, Dr. Crane endeavored to clarify his 
 
            rating, and indicated that he had factored pain into the 
 
            calculation.  He acknowledged that he could not distinguish 
 
            between a body as a whole injury and a scheduled injury in 
 
            the legal sense.  He indicated that his rating considered 
 
            the joint, bone and muscle.  On September 19, 1988, claimant 
 
            was reduced to four hour shifts by Dr. Crane.  On September 
 
            28, 1988, claimant's lifting restriction was reduced by Dr. 
 
            Crane to five pounds, with no work over the shoulders, and 
 
            two hour rotation.
 
            
 
                 Dr. Crane returned claimant to six hour shifts on 
 
            October 10, 1988.  On October 19, 1988, Dr. Crane noted that 
 
            claimant experiences right shoulder problems after working 
 
            above shoulder level, and reiterated claimant's 
 
            restrictions.  
 
            
 
                 On December 22, 1988, claimant was told by her employer 
 
            that unless her restrictions were lifted, she would be laid 
 
            off, as her restrictions kept her from "bumping" another 
 
            employee with less seniority under the union contract.  On 
 
            December 29, 1988, claimant was laid off.
 
            
 
                                  APPLICABLE LAW
 
            
 
                 The citations of law in the arbitration decision are 
 
            appropriate to the issues and the evidence.
 
            
 
                                     ANALYSIS
 
            
 
                 Claimant correctly notes that the standard of review on 
 
            appeal to the industrial commissioner is de novo.  
 
            Defendants' statements in their brief as to whether 
 
            "substantial evidence" exists are inappropriate.  A de novo 
 
            review will be made of the record.
 
            
 
                 Claimant's first issue on appeal concerns the injury 
 
            date for her cumulative injury or injuries.  Claimant 
 
            originally failed to specify an injury date in her 
 
            petitions.  Claimant was ordered by this agency to amend the 
 
            petitions to allege specific injury dates, and claimant then 
 
            alleged September 3, 1985, as the injury date for her right 
 
            hand injury; April 14, 1986, as the date of injury for her 
 
            left hand injury; and April 29, 1986, as the date of injury 
 
            for her alleged shoulders and back injury.  Claimant urges 
 
            on appeal that a cumulative injury is ongoing, and therefore 
 
            no specific date of injury can be assigned.  Alternatively, 
 
            claimant urges that the date of injury in a cumulative 
 
            injury case should be the date on which the symptoms of the 
 
            cumulative injury first manifest themselves, rather than the 
 
            date claimant is compelled to leave work.
 
            
 
                 Under McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 
 
            (Iowa 1985), the date of injury occurs when the worker is 
 
            unable to continue working due to the effects of the work 
 

 
            
 
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            injury.  McKeever recognizes the ongoing nature of the 
 
            cumulative injury, but also recognizes the need to establish 
 
            a definite date of injury for various purposes, such as the 
 
            statute of limitations.  A definite injury date is also 
 
            necessary for the establishment of claimant's rate.   
 
            Although the technical rules of pleading have been abolished 
 
            for workers' compensation actions, there still must be some 
 
            semblance of specificity in the pleadings to allow 
 
            defendants to defend, and adjudicators to decide.  See 
 
            Terwilleger v. Snap-On Tools Corp., Appeal Decision, May 
 
            24, 1991. 
 
            
 
                 The record shows that claimant's left and right carpal 
 
            tunnel syndromes developed over the same period of time.  
 
            Under McKeever, the date of injury would be the date on 
 
            which the condition first compelled claimant to miss work.  
 
            A single cumulative injury to both arms would result in a 
 
            single injury date, even if symptoms or treatment began for 
 
            each arm on different dates.  In this case claimant suffered 
 
            a single bilateral carpal tunnel cumulative injury on 
 
            September 3, 1985.
 
            
 
                 Claimant next urges on appeal that she has suffered an 
 
            injury that is not limited to her arms, but to her shoulders 
 
            and back as well.  If a claimant contends he has industrial 
 
            disability he has the burden of proving his injury results 
 
            in an ailment extending beyond the scheduled loss.  Kellogg 
 
            v. Shute and Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 
 
            (1964).  
 
            
 
                 Alternatively claimant urges that if her injury is not 
 
            an injury affecting the arms and shoulders as well as the 
 
            arms, then her present arm and shoulder conditions are 
 
            sequelae of her arm injuries.  An injury to a scheduled 
 
            member may, because of after effects (or compensatory 
 
            change), result in permanent impairment of the body as a 
 
            whole.  Such impairment may in turn form the basis for a 
 
            rating of industrial disability.  Dailey v. Pooley Lumber 
 
            Co., 233 Iowa 758, 10 N.W.2d 569 (1943).  Soukup v. Shores 
 
            Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 The medical evidence does not support the conclusion 
 
            that claimant's bilateral carpal tunnel syndrome has 
 
            resulted in impairment to her shoulders or back.  Claimant 
 
            first complained of shoulder pain on April 19, 1986.  Dr. 
 
            DeBartolo, claimant's treating physician and the surgeon who 
 
            performed claimant's carpal tunnel surgery, examined 
 
            claimant's shoulders on November 4, 1986, and found a full 
 
            range of motion.  Dr. DeBartolo examined claimant again on 
 
            January 6, 1986, and again found no abnormalities in the 
 
            shoulders.  Dr. Breedlove examined claimant on November 10, 
 
            1987, and found the shoulders to be normal.  Dr. Mixdorf 
 
            also found no shoulder or back deficiencies in his 
 
            examinations.
 
            
 
                 Although claimant made numerous complaints of pain in 
 
            her shoulders, only one of claimant's physicians gave a 
 
            rating of permanent partial impairment to her shoulders.  
 
            All the other doctors that examined claimant found full 
 
            range of motion in the shoulders.  Dr. Richards attributed 
 

 
            
 
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            claimant's shoulder pain to overuse tendonitis.  Dr. Bottjen 
 
            also diagnosed chronic tendonitis.  Dr. Breedlove rated 
 
            claimant's shoulder impairment as zero.  None of claimant's 
 
            physicians, except Dr. Crane, assigned permanent impairment 
 
            to claimant's shoulders.
 
            
 
                 Although Dr. Crane did assign a rating of impairment 
 
            for claimant's shoulders, he found no abnormalities in 
 
            claimant's shoulders and clarified that his rating was for 
 
            pain alone.  Dr. Crane also described claimant's shoulder 
 
            condition as a muscle pull, and stated he had no objective 
 
            findings of shoulder impairment.  Although the majority of 
 
            claimant's complaints may have revolved around her 
 
            shoulders, no doctor stated that claimant's carpal tunnel 
 
            syndrome extended to her shoulders.  Similarly, no physician 
 
            expressed an opinion that claimant's shoulder pain was a 
 
            sequelae of her carpal tunnel syndrome, nor did any 
 
            physician opine that claimant's shoulder pain was the result 
 
            of compensation by claimant as a result of her carpal tunnel 
 
            syndrome.  Claimant bears the burden of proof.  Claimant has 
 
            failed to show that her carpal tunnel syndrome extends to 
 
            the shoulders or back, either as a part of a cumulative 
 
            injury or as a sequelae of her cumulative injury.
 
            
 
                 In addition, even if claimant had shown that her 
 
            alleged shoulder and back pain was caused by her cumulative 
 
            injury or as a sequelae of her injury, claimant at most has 
 
            only shown that her shoulder and back conditions result in 
 
            pain and discomfort.  There is no showing of impairment.  
 
            Although one physician did impose a rating of impairment and 
 
            a restriction against working above shoulder level, all the 
 
            other physicians found full range of motion.  Even Dr. 
 
            Crane, the physician assigning the rating and restriction to 
 
            the shoulders, acknowledged that they were based on 
 
            subjective complaints of pain alone.  Pain that is not 
 
            substantiated by clinical findings is not a substitute for 
 
            impairment.  Waller v. Chamberlain Manufacturing, II Iowa 
 
            Industrial Commissioner Report 419, 425 (1981);  Godwin v. 
 
            Hicklin GM Power, II Iowa Industrial Commissioner Report 170 
 
            (1981).  Pain is not compensable under chapter 85 unless 
 
            there is an impact on earning capacity.  Benton v. Hyman 
 
            Freightways, Review-Reopening Decision, January 7, 1991.  
 
            Claimant's shoulder condition appears to be tendonitis, or a 
 
            "muscle pull."  Claimant has not carried her burden to show 
 
            that her shoulder condition represents permanent impairment.
 
            
 
                 Finally, the record shows that claimant suffered an 
 
            injury to her upper body in November 1986, when a file 
 
            cabinet fell on her.  Claimant may have suffered another 
 
            back injury on January 28 or 29, 1987, when she tried to 
 
            open a stuck drawer.  Claimant may have suffered a third 
 
            injury on January 15, 1988, when she tried to move a 300-400 
 
            pound dye.  Any of these traumatic incidents are possible 
 
            causes of claimant's alleged shoulder and back pain.  The 
 
            November 1986, January 28 or 29, 1987, and January 15, 1988 
 
            work incidents are not a part of the cases addressed in this 
 
            decision.  Claimant has failed to carry her burden of proof 
 
            that her work activity resulted in a cumulative injury to 
 
            her shoulders or back.
 
            
 

 
            
 
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                 Claimant next urges on appeal that Dr. Crane's rating 
 
            of impairment to her elbows was not adequately considered.  
 
            Drs. DeBartolo, Boarini, Carignan, Breedlove, and others 
 
            rated claimant's upper extremities.  The upper extremity 
 
            includes the elbow.  The fact that Dr. Crane chose to rate 
 
            the elbows and wrists separately does not change the nature 
 
            of claimant's condition.  Absent contrary evidence, it can 
 
            be assumed that the ratings of impairment to the upper 
 
            extremities by the other physicians contemplated any 
 
            impairment to the elbow as well.
 
            
 
                 Claimant has received several ratings of impairment of 
 
            her upper extremities.  Dr. DeBartolo rated claimant's right 
 
            upper extremity at 16 percent, left upper extremity at 15 
 
            percent, for a combined value of 29 percent, which converts 
 
            to a whole body impairment of 17 percent.  However, Dr. 
 
            DeBartolo apparently misapplied the AMA Guides to the 
 
            Evaluation of Permanent Impairment.  Dr. DeBartolo obtained 
 
            his ratings of each upper extremity, then utilized the 
 
            combined values chart, and then converted the combined value 
 
            to a whole body rating.  The AMA Guides contemplate 
 
            converting the upper extremity ratings to whole body ratings 
 
            first, then using the combined values chart.  Using Dr. 
 
            DeBartolo's ratings of claimant's upper extremities, 
 
            claimant's whole body impairment according to Dr. Bartolo's 
 
            findings would be 18 percent instead of 17 percent.  Dr. 
 
            Boarini examined claimant and found a 3.5 percent impairment 
 
            of the right upper extremity, and zero impairment of the 
 
            left upper extremity.  Dr. Carignan found 11.5 percent 
 
            impairment of the right upper extremity, and 5.5 percent of 
 
            the left upper extremity, for a whole body impairment of 8.5 
 
            percent.  Dr. Breedlove found 10 percent impairment of the 
 
            right upper extremity, and 9.5 percent of the left upper 
 
            extremity, which he converted to whole body impairments of 
 
            six percent for each upper extremity, for a total of 12 
 
            percent.  
 
            
 
                 Dr. Crane rated claimant's right upper extremity at 10 
 
            percent, left upper extremity at five percent, and added 
 
            three percent for each elbow and two percent for each 
 
            shoulder.  Dr. Crane rated claimant's whole body impairment 
 
            at 25 percent.  However, Dr. Crane later stated that only 
 
            four percent of that rating was whole body, and 21 percent 
 
            represented the impairment of the upper extremities.
 
            
 
                 Dr. Crane's rating of the shoulders is disregarded, in 
 
            that Dr. Crane indicated this rating was for pain only, and 
 
            it has been determined that claimant has failed to establish 
 
            that her impairment extended to the shoulders or back.  Dr. 
 
            Breedlove's rating did not utilize the combined values chart 
 
            of the AMA Guides to the Evaluation of Permanent Impairment.  
 
            Rather, Dr. Breedlove merely added the whole body 
 
            equivalents of the upper extremity impairments he found.  If 
 
            the combined values chart had been used, ratings of 
 
            impairment of 9.5 percent and 10 percent would yield a 
 
            combined value of 17 or 18 percent, which would convert to a 
 
            whole body impairment of 10 or 11 percent.  
 
            
 
                 Similarly, Dr. Carignan's ratings do not properly apply 
 
            the AMA Guides.  Apparently, Dr. Carignan averaged his left 
 

 
            
 
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            and right upper extremity ratings.  When the AMA Guides are 
 
            properly applied and the combined values chart is used, 
 
            upper extremity ratings of 11.5 percent and 5.5 percent 
 
            would yield a combined value of 15-17 percent, which 
 
            converts to a whole body impairment of 9-10 percent.
 
            
 
                 Dr. DeBartolo was claimant's treating physician, and 
 
            had more contact with claimant than other physicians.  Dr. 
 
            DeBartolo also performed claimant's surgery, and thus had an 
 
            opportunity to make an internal examination as well.  The 
 
            medical evidence of Dr. DeBartolo will be given the greater 
 
            weight.  Claimant, as a result of her bilateral carpal 
 
            tunnel syndrome, has a whole body impairment of 18 percent.
 
            
 
                 At the hearing, claimant stipulated that defendants had 
 
            previously paid 63.75 weeks of permanent partial disability 
 
            benefits.  On appeal, claimant asserts she erred in so 
 
            stipulating, and that defendants had paid only 49.75 weeks 
 
            of permanent partial disability.  
 
            
 
                 A stipulation is an agreement by the parties that 
 
            certain facts are true and need not be litigated.  Claimant 
 
            acknowledges error and now seeks to reduce the amount of 
 
            credit defendants are entitled to.  Claimant should not 
 
            benefit from lack of preparation before entering into the 
 
            stipulation.  On the other hand, defendants should not enjoy 
 
            a windfall as a result of a computation error.  The amount 
 
            of benefits previously paid to claimant should be readily 
 
            verifiable.  The parties will be ordered to apply credit for 
 
            any amounts actually paid against any award of benefits 
 
            below.  
 
            
 
                 Claimant also raises on appeal the question of whether 
 
            claimant was an odd-lot employee.  It has been determined 
 
            above that claimant's injury did not extend to the body as a 
 
            whole, and thus a discussion of industrial disability is not 
 
            required.  However, even if claimant had shown entitlement 
 
            to industrial disability, claimant did not list odd-lot as 
 
            an issue at the time of hearing.  An examination of the 
 
            hearing assignment order, and the hearing transcript, pages 
 
            three through six, reveals that odd-lot was not an issue at 
 
            the time of the hearing.  An issue that could have been 
 
            raised at the time of the hearing cannot be raised for the 
 
            first time on appeal.  Marcks v. Richman Gordman, Appeal 
 
            Decision, June 29, 198; In re Jack H. Kohlmeyer, Appeal 
 
            Decision, Feb. 22, 1990.  Claimant's odd-lot appeal issue 
 
            will not be addressed.  
 
            
 
                 Claimant on appeal also seeks a penalty for 
 
            unreasonable delay in payment of healing period and 
 
            permanent partial disability benefits.  A review of the 
 
            record reveals that there was no dispute between the parties 
 
            as to the compensability of claimant's right and left arm 
 
            conditions.  The issue of contention between the parties was 
 
            whether claimant's injury extended to the shoulders and back 
 
            as well.  Dr. DeBartolo gave claimant a rating of 18 percent 
 
            of the body as a whole as a result of the bilateral carpal 
 
            tunnel syndrome on January 6, 1987.  Dr. Boarini assigned 
 
            claimant a rating of 3-5 percent on July 6, 1987.  
 
            Defendants received Dr. Breedlove's report on December 4, 
 

 
            
 
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            1987, and paid claimant a lump sum payment of 57.5 weeks of 
 
            benefits on January 13, 1988, based on Dr. Breedlove's 
 
            rating.  Defendants paid another lump sum of 6.25 weeks on 
 
            June 23, 1988, representing an average of the ratings given 
 
            by Dr. Crane and Dr. Breedlove.
 
            
 
                 There was an extensive exchange of letters between the 
 
            parties concerning defendants' nonpayment of medical 
 
            appointment bills, which defendants did pay on September 24, 
 
            1987.  There was also a dispute between the parties on how 
 
            to calculate claimant's entitlement to healing period.  
 
            Defendants later accepted claimant's calculation.
 
            
 
                 Defendants were aware of Dr. DeBartolo's rating of 
 
            claimant's arms almost a full year before paying any 
 
            permanent partial disability benefits.  Even after receiving 
 
            Dr. Boarini's opinion, it was another six months before 
 
            payment was made.  Defendants, in their appeal brief, 
 
            justify the delay in paying benefits by pointing out that 
 
            the claimant's claim for benefits for the shoulders was in 
 
            dispute, and that various settlement offers were being made 
 
            to the claimant.  
 
            
 
                 The defendants were justified in not paying permanent 
 
            partial disability benefits for claimant's alleged shoulder 
 
            injury, as that injury was in dispute and a bona fide 
 
            argument as to non-compensability existed.  However, 
 
            withholding the payment of benefits for claimant's arm 
 
            injuries, which were admitted to be compensable, simply 
 
            because another part of claimant's claim was in dispute, is 
 
            unreasonable.  The fact that settlement negotiations were 
 
            ongoing does not excuse the delay in payment of benefits 
 
            that claimant was clearly entitled to.  Defendants cannot 
 
            withhold benefits that are warranted in order to pressure a 
 
            settlement on other benefits claimed.  A penalty under Iowa 
 
            Code section 86.13 is appropriate.  Defendants will be 
 
            ordered to pay claimant an additional 25 percent of benefits 
 
            awarded as a penalty. 
 
            
 
                 Claimant also urges on appeal that defendants should be 
 
            ordered to pay interest on unpaid benefits under Iowa Code 
 
            section 85.30, and that interest should be assessed on the 
 
            interest itself.  Claimant also urges that an injury date 
 
            other than the injury date for statute of limitations 
 
            purposes should control for the calculation of interest.  
 
            Finally, claimant requests this agency to calculate the 
 
            interest due on each week of unpaid benefits.
 
            
 
                 There is no provision in the workers' compensation law 
 
            for "interest on interest."  McKeever, above, establishes 
 
            the date of injury and the interest for any unpaid benefits 
 
            will be calculated according to the principles enunciated in 
 
            Teel v. McCord, 394 N.W.2d 405 (1986); Dickenson v. John 
 
            Deere Prod. Eng., 395 N.W.2d 644 (Iowa App. 1986);  Farmer's 
 
            Elevator Co., Kingsley v. Manning, 286 N.W.2d 174 (Iowa 
 
            1979); and Benson v. Good Samaritan Center, Ruling on 
 
            Rehearing, Oct. 18, 1989 
 
            
 
                 Finally, claimant seeks an award of additional healing 
 
            period benefits for periods of time she was off work for 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            shoulder pain occurring after her alleged shoulder injury 
 
            date of April 29, 1986; specifically, January 15, 1988 to 
 
            January 18, 1988; May 9, 1987 to May 13, 1987; May 4, 1988 
 
            to May 18, 1988;  and parts of June 1, 1988; June 7, 1988; 
 
            June 9, 1988; and June 25, 1988.  These dates were not part 
 
            of the stipulation of the parties as to healing period.  
 
            They were not listed as issues at the time of the hearing.  
 
            Claimant bases this appeal issue on evidence introduced into 
 
            the record by defendants showing that claimant was off work 
 
            during these periods, and was not compensated.  Claimant now 
 
            seeks additional healing period benefits, as well as penalty 
 
            and interest.
 
            
 
                 Claimant cannot raise an issue on appeal that was not 
 
            presented as an issue at the hearing before the deputy.  
 
            Claimant has waived any claim for additional healing period, 
 
            penalty or interest by failing to assert these issues at the 
 
            hearing.  It is also noted that these periods of absence 
 
            from work were related to claimant's shoulder and back pain, 
 
            which has been found above not to be compensable in the 
 
            instant proceedings.  Claimant is not entitled to a further 
 
            award of healing period benefits, or penalty or interest 
 
            thereon.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 1.  Claimant incurred a bilateral carpal tunnel injury 
 
            as a result of a cumulative single injury on September 3, 
 
            1985 to her right and left hands.
 
            
 
                 2.  Claimant has an 18 percent impairment of the whole 
 
            person as a result of the combined carpal tunnel injury to 
 
            her left and right hands on September 3, 1985. 
 
            
 
                 3.  Claimant failed to prove she received any 
 
            work-related shoulder or back injury for the injury dates 
 
            alleged.
 
            
 
                 4.  Claimant's shoulder and back condition is not the 
 
            result of her bilateral carpal tunnel injury.
 
            
 
                 5.  Claimant's back condition is not a sequelae of her 
 
            bilateral carpal tunnel syndrome.
 
            
 
                 6.  Claimant's back condition is not the result of 
 
            claimant compensating for her carpal tunnel syndrome.
 
            
 
                 7.  Claimant experienced possible intervening causes of 
 
            traumatic back or shoulder injury in November 1986; on 
 
            January 28 or 29, 1987; and on January 15, 1988.  The 
 
            incidents on these dates are not the subject of the instant 
 
            proceedings.
 
            
 
                 8.  Defendants unreasonably withheld benefits related 
 
            to claimant's bilateral carpal tunnel injury.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Claimant has an 18 percent impairment to her body as a 
 
            whole as the result of a bilateral carpal tunnel injury 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            arising out of and in the course of her employment on 
 
            September 3, 1985. 
 
            
 
                 Claimant's back and shoulder condition did not result 
 
            from her bilateral carpal tunnel injury.  
 
            
 
                 Claimant is entitled to a 25 percent penalty under Iowa 
 
            Code section 86.13.
 
            
 
                 Claimant is not entitled to additional healing period 
 
            benefits.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant is entitled to ninety (90) weeks of 
 
            permanent partial disability benefits at the weekly rate of 
 
            two hundred seventeen and 45/100 dollars ($217.45) beginning 
 
            January 6, 1987.
 
            
 
                 Claimant is entitled to an additional twenty-two point 
 
            five (22.5) weeks of benefits as a penalty under Iowa Code 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            section 86.13.
 
            
 
                 That defendants shall pay accrued benefits in a lump 
 
            sum and receive credit against the award for any amounts of 
 
            permanent partial disability benefits previously paid.
 
            
 
                 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 
 
            including the cost of transcribing the hearing proceeding 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
     
 
            
 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            That defendants file claim activity reports as requested by 
 
            this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of June, 1991.
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                   CLAIR R. CRAMER
 
                                           ACTING INDUSTRIAL 
 
            COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Mark S. Soldat
 
            Attorney at Law
 
            714 E. State St.
 
            Algona, Iowa 50511
 
            
 
            Mr. Paul C. Thune
 
            218 6th Ave., Suite 300
 
            P.O. Box 9130
 
            Des Moines, Iowa 50306
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            2209 - 1803.1 - 2906 - 2904
 
            4000.2 - 3800
 
            Filed June 28, 1991
 
            Clair R. Cramer
 
            BJO
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SANDRA WEISHAAR,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :   File Nos. 847903/848681
 
                                          :             848682
 
            SNAP-ON TOOLS CORPORATION,    :
 
                                          :          A P P E A L
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            ROYAL INSURANCE,              :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            2209
 
            Claimant's argument for a "running injury date" spanning 
 
            several years for a cumulative injury was rejected pursuant 
 
            to McKeever.  
 
            
 
            1803.1
 
            The evidence failed to show that claimant's bilateral carpal 
 
            tunnel syndrome extended beyond the arm to the body as a 
 
            whole, either as part of the cumulative injury or as a 
 
            sequelae of the injury due to claimant compensating because 
 
            of her injury.  Subjective reports of pain in the shoulders 
 
            without medical corroboration do not extend the injury to 
 
            the body as a whole.  All of claimant's physicians found no 
 
            impairment of the shoulders except one, and that physician 
 
            stated his rating of impairment for the shoulders was for 
 
            pain alone, based on claimant's subjective complaints.  In 
 
            addition, there were three incidents of other traumatic work 
 
            injuries to claimant's shoulders not involved in these cases 
 
            that were as likely or more likely causes of any shoulder 
 
            pain.  Claimant failed to carry her burden to show that her 
 
            injury extended beyond the scheduled member.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            2906
 
            Claimant stipulated to the number of weeks of permanent 
 
            partial disability previously paid by defendants.  On 
 
            appeal, claimant indicated the stipulation was in error, and 
 
            claimant alleged a different amount of credit.  Held that 
 
            while claimant should be bound by her stipulation and should 
 
            not benefit from a lack of adequate preparation, neither 
 
            should defendants not enjoy a windfall.  Since the amount 
 
            previously paid is readily verifiable, the parties were 
 
            ordered to apply the amount of payments actually made as a 
 
            credit.
 
            
 
            2904
 
            Claimant attempted on appeal to obtain a finding that she 
 
            was an odd-lot employee.  However, odd-lot had not been 
 
            raised at the time of the hearing and was not considered on 
 
            appeal.
 
            
 
            4000.2
 
            Claimant sought a penalty for unreasonable delay in payment.  
 
            The medical evidence clearly established the compensability 
 
            of claimant's bilateral carpal tunnel condition early on in 
 
            the case, but there was substantial disagreement between the 
 
            parties as to the compensability of the alleged shoulder 
 
            condition.  Defendants did pay claimant for the carpal 
 
            tunnel condition, but not for several months after ratings 
 
            and causal connection opinions were given both by claimant's 
 
            physician and defendants' physician.  On appeal, defendants 
 
            sought to justify the delay by pointing out that there was a 
 
            dispute on the shoulder condition, and settlement 
 
            negotiations were ongoing.  Held that defendants reasonably 
 
            delayed payment of benefits representing an alleged shoulder 
 
            condition since there was a bona fide dispute as to that 
 
            injury, but defendants unreasonably withheld benefits 
 
            representing the bilateral carpal tunnel condition which was 
 
            not in dispute.  Defendants cannot withhold clearly 
 
            compensable benefits as a lever to force settlement on 
 
            disputed aspects of the case.  However, defendants did 
 
            voluntarily pay the undisputed benefits during the pendency 
 
            of the case, albeit several months late.  Defendants 
 
            assessed 25 percent of benefits awarded as a penalty.
 
            
 
            3800
 
            Claimant's arguments for a different injury date for 
 
            purposes of assessing interest, for interest on interest 
 
            unpaid, and request that the agency compute the interest due 
 
            on each and every payment, were rejected.  
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROBERT McCREEDY,
 
         
 
              Claimant,
 
         
 
         VS.
 
         
 
                                                   File No.  848688
 
         FRUEHAUF CORP.,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         CNA INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration upon claimant's petition 
 
         filed August 26, 1987.  Claimant sustained an injury arising out 
 
         of  and in the course of his employment on June 22, 1987 when he  
 
         was involved in a collision while operating a forklift.  He now 
 
         seeks benefits under the Iowa Workers' Compensation Act from 
 
         defendant employer Fruehauf Corporation and defendant insurance 
 
         carrier CNA Insurance Company.
 
         
 
              Hearing on the petition for arbitration was had in 
 
         Burlington, Iowa, on May 21, 1990.  The record consists of joint 
 
         exhibits 2 through 13 and the testimony of Linda Sage.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report, the parties have 
 
         stipulated:  that claimant sustained an injury arising out of and 
 
         in the course of his employment with defendant Fruehauf 
 
         Corporation on June 22, 1987; that the injury caused temporary 
 
         disability from June 26, through July 5, 1987; that the 
 
         appropriate rate of compensation is $240.10; that medical 
 
         benefits are no longer in dispute; that defendants paid one and 
 
         three-sevenths weeks of compensation at the stipulated rate prior 
 
         to hearing.
 
         
 
         
 
         
 
         McCREEDY v. FRUEHAUF CORP.
 
         Page 2
 
         
 
         
 
              Issues presented for resolution include:  whether the work 
 
         injury caused permanent disability and the extent and nature 
 
         thereof; taxation of costs.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The undersigned deputy, having heard the testimony and 
 
         considered all of the evidence, finds:
 
         
 
              Claimant was involved in a collision while operating a 
 
         forklift vehicle on June 22, 1987.  He suffered a broken nose in 
 
         the incident which was adjusted under general anesthesia on June 
 
         24, 1987 by Ursula R. Hahn, M.D.  In Dr. Hahn's view, claimant 
 
         sustained no permanent disability, except for possible scarring.  
 
         However, there is no evidence in this record indicating that 
 
         claimant did sustain permanent scarring or that such scarring has 
 
         in any way impaired claimant's future usefulness and earnings in 
 
         his occupation at the time of injury.  In fact, claimant has 
 
         remained employed in the same position up to and including the 
 
         date of hearing.
 
         
 
              On June 25, 1987, claimant complained to Linda Schmidt 
 
         Jabbari, D.O., of neck pain and numbness at the base of the skull 
 
         and two painful bumps in the middle of the back.  Dr. Jabbari's 
 
         notes reflect that claimant had full range of motion of the neck 
 
         and the bumps of the back were normal spinous processes.  Her 
 
         impression was of cervical muscle spasm.  On May 31, 1988, 
 
         claimant complained to David C. Wenger-Keller, M.D., of neck pain 
 
         which he related to  a forklift accident in November, 1987.  The 
 
         record does not indicate that claimant sustained a second such 
 
         injury in November, 1987.  Dr. Wenger-Keller diagnosed chronic 
 
         muscle pain in the neck related to the November, 1987 injury.
 
         
 
              No physician has indicated that claimant has sustained any 
 
         permanent impairment of any kind, nor is there any evidence of 
 
         any casual relationship to the subject work injury.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The parties agree that claimant sustained an injury arising 
 
         out of and in the course of his employment and that he sustained 
 
         temporary disability as stipulated.  The disagreement in this 
 
         case is as to whether the injury caused any permanent impairment 
 
         or industrial disability.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of June 22, 1987 is casually related 
 
         to the disability on which he now
 
         
 
         
 
         
 
         McCREEDY v. FRUEHAUF CORP.
 
         Page 3
 
         
 
         
 
         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 casual 
 
         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 casual connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite,  positive  or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone Co.
 
         , 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              Although claimant has complained of neck pain, this record 
 
         contains no evidence whatsoever indicating that claimant has any 
 
         permanent impairment, or that any impairment is causally related 
 
         to the work injury.  Claimant has clearly failed to meet his 
 
         burden of proof in establishing any disability relating to his 
 
         complaints of neck pain.
 
         
 
              Pursuant to Iowa Code section 85.34(2)(t), an individual may 
 
         be compensated for permanent disfigurement  of the face or head 
 
         which impairs the future usefulness and earnings of the employee 
 
         in his occupation at the time of receiving the injury.  Although 
 
         Dr. Hahn made reference to possible scarring, there is no 
 
         evidence in the record indicating that claimant actually suffered 
 
         a permanent facial scar.  Claimant did not personally participate  
 
         in  the hearing so as to give this writer an opportunity to view 
 
         any alleged disfigurement.  Claimant has remained in the same job 
 
         through the date of hearing and has not established any 
 
         impairment of his earning capacity in his regular occupation.  It 
 
         is held that claimant has failed to meet his burden of proof in 
 
         establishing permanent impairment by reason of facial 
 
         disfigurement.
 
         
 
              Claimant is entitled to compensation for temporary total 
 
         disability, but he has already received his full entitlement 
 
         pursuant to the stipulation entered into by the
 
         
 
         
 
         
 
         McCREEDY v. FRUEHAUF CORP.
 
         Page 4
 
         
 
         
 
         parties.  Therefore, claimant shall take nothing from this 
 
         proceeding.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant shall take nothing from this proceeding.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Costs of this action shall be assessed to claimant pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 31st day of  1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         DAVID RASEY
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         Middle Road
 
         P.O. Box 1066
 
         Keokuk, Iowa  52632
 
         
 
         Mr. Elliott R. McDonald, Jr.
 
         Attorney at Law
 
         P.O. Box 2746
 
         Davenport, Iowa  52809
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         5-1803
 
                                         Filed May 31, 1990
 
                                         DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROBERT McCREEDY,
 
         
 
              Claimant,
 
         VS.
 
                                                 File No. 848688
 
         FRUEHAUF CORP.,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                  D E C I S I 0 N
 
         and
 
         
 
         CNA INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         5-1803
 
         
 
              Claimant failed to prove he sustained permanent disability.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         LARRY D. KERR,
 
         
 
              Claimant,                               File  No. 848697
 
         
 
         VS.                                       A R B I T R A T I 0 N
 
         
 
         SHELLER-GLOBE CORPORATION,                   D E C I S I 0 N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Larry D. Kerr 
 
         against Sheller-Globe Corporation, his self-insured employer, 
 
         based upon an alleged injury of June 15, 1987.  The issues 
 
         presented for determination include whether claimant sustained 
 
         any injury which arose out of and in the course of his 
 
         employment; determination of his entitlement to compensation for 
 
         temporary total disability or healing period; determination of 
 
         his entitlement to  compensation for permanent partial or 
 
         permanent total disability.  He asserts the odd-lot doctrine.  
 
         Section 85.27 benefits were identified as an issue, but no bills 
 
         were received into evidence.  Defendant asserts the lack of 
 
         notice  under section 85.23 of The Code as a defense.  The case 
 
         is complicated by a ruling made on December 19, 1989 which denied 
 
         claimant's attempt to amend his petition to assert a theory of 
 
         injury through cumulative trauma.  The ruling  does not, however, 
 
         limit claimant's ability to recover for cumulative injury since 
 
         it is not necessary that a cumulative injury theory be pled.  
 
         DeHeer v. Clarklift of Des Moines, file number 804325 (App. 
 
         Decn., May 12, 1989); McCoy v. Donaldson Co., Inc., file numbers 
 
         752670 and 805200 (App. Decn., April 28, 1989).
 
         
 
              In the prehearing report, the parties stipulated that 
 
         claimant's gross weekly earnings were $328.70 and that he was 
 
         single with one exemption.  According to the 1986 benefit 
 
         booklet, the rate of compensation should be $198.26 per week, 
 
         rather than $204.71 per week as stipulated.
 
         
 
              The case was heard and fully submitted at Cedar Rapids, Iowa 
 
         on December 20, 1989.  The record in the proceeding
 
         
 
         
 
         
 
         KERR v. SHELLER-GLOBE CORPORATION
 
         Page 2
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         consists of testimony from Larry D. Kerr, Roger Marquardt and 
 
         Rick Innis.  The record also contains claimant's exhibits 1 
 
         through 12 and defendant's exhibit  A.  Exhibit 13, though marked 
 
         and referred to, was never offered or received.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Larry D. Kerr is a 52-year-old single man whose education 
 
         ended at the eighth grade when he was 15 years of age.  Kerr 
 
         worked at Sheller-Globe for approximately the last ten years.  
 
         His last day of work was July 1, 1988.  He is still technically 
 
         listed as an employee on medical leave.
 
         
 
              Kerr has a long history of back problems (defendant's 
 
         exhibit A, pages 1-5, 6, 8 and 9).  X-rays taken in 1973 showed 
 
         essentially normal disc spaces, but also showed spur formation 
 
         and abnormalities of the L5 vertebral  appendages (claimant's 
 
         exhibit 11).  Claimant agreed that he had back problems in the 
 
         1970's, but stated that they were not as severe as they are 
 
         presently.
 
         
 
              Claimant testified that in December, 1986 his work involved 
 
         lifting heavy bales.  Claimant stated that his back pain had been 
 
         increasing during the month  of December.  When he sought medical 
 
         treatment on January 4, 1987,  he  reported that on Christmas 
 
         Day, 1986 he had experienced a sudden onset of pain running down 
 
         his left buttock as well as increasing.pain over the prior three 
 
         weeks (defendant's exhibit A, pages 16, 17 and 17A).  Claimant's 
 
         initial medical treatment was at the University of Iowa Hospitals 
 
         and Clinics Emergency Room.  Kerr was then seen at the 
 
         Neurosurgery Outpatient Clinic on January 7, 1987.  He was 
 
         diagnosed as having degenerative joint disease and an 
 
         exacerbation of chronic low back pain.  A pars defect was 
 
         identified at the L5 level of his spine as well as disc space 
 
         narrowing at L5-Sl.  Claimant was prescribed conservative 
 
         treatment and was kept off work until January 26, 1987 when he 
 
         was released to return to work (defendant's exhibit A, pages 
 
         20-22). When seen for a follow-up visit on April 23, 1987, the 
 
         records show that claimant denied having any recent low back or 
 
         leg pain.  He had been working (defendant's exhibit A, page 23).
 
         
 
              Claimant returned to the neurosurgery clinic on June 29, 
 
         1987 where he voiced complaints of continued pain, especially 
 
         after working. He related that  his work required a lot of 
 
         twisting and bending.  David W. Beck, M.D., assistant professor 
 
         of neurosurgery, formed the impression that claimant had chronic 
 
         low back pain and referred him to
 
         
 
         
 
         
 
         KERR v. SHELLER-GLOBE CORPORATION
 
         Page 3
 
         
 
         
 
         physical therapy to obtain a back support to wear while he was 
 
         working (defendant's exhibit A, page 24).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              When questioned, Dr. Beck could not recall any history of 
 
         any particular incident of injury occurring on June 15, 1987.  He 
 
         stated that claimant's chronic pain is due to the 
 
         spondylolisthesis and general wear and tear on his  spine rather 
 
         than any specific injury.  Dr. Beck stated that, when he treated 
 
         claimant, it had been for an aggravation of the underlying 
 
         preexisting condition and that the aggravation resolved with 
 
         claimant regaining his previous level of function (defendant's 
 
         exhibit A, page 25).
 
         
 
              Kerr was dissatisfied with Dr. Beck and sought treatment 
 
         from William R. Pontarelli, M.D.  Claimant was first seen by Dr. 
 
         Pontarelli on July 14, 1987.  Dr. Pontarelli determined that 
 
         claimant had a herniated disc at the L4-5 level on the left and 
 
         spondylolysis with spondylolisthesis at the L5-Sl level, Grade I.  
 
         He recommended that claimant avoid work (claimant's exhibit  5; 
 
         claimant's exhibit 1, page 10).
 
         
 
              The history Kerr gave to Dr. Pontarelli was that the onset 
 
         of his problems occurred around Christmas of 1986 (claimant's 
 
         exhibit 1, pages 5 and 26).  Dr. Pontarelli stated that the 
 
         spondylolisthesis or pars defect was  most likely attributable to 
 
         an injury which was incurred while claimant was an adolescent 
 
         (claimant's exhibit 1, page 8).  He felt that the herniated disc 
 
         was possibly caused by claimant's work.  He went on to state that 
 
         he felt claimant's condition was work related (defendant's  
 
         exhibit A, pages 11 and 12).  He stated that twisting performed 
 
         during the April through June, 1987 time span could  have 
 
         aggravated claimant's preexisting condition and he could  not 
 
         rule out the possibility that the injury occurred during the time 
 
         span of April to June since there were no CT scans or other tests 
 
         which would have demonstrated whether or not the herniated disc 
 
         existed when claimant was off work in January, 1987 (claimant's 
 
         exhibit 1, pages 12 and 18).
 
         
 
              Dr. Pontarelli stated that claimant has severe limitations 
 
         and that he has demonstrated a high level of motivation to work.  
 
         He also stated that he  recommended that claimant have spinal 
 
         surgery, but that claimant declined  due to the chance that it 
 
         might not be successful (claimant's exhibit 1, pages 17-20).  Dr. 
 
         Pontarelli rated claimant as currently having a permanent 
 
         impairment of ten percent of the body as a whole (claimant's 
 
         exhibit 1, page 22).
 
         
 
         
 
         
 
         KERR v. SHELLER-GLOBE CORPORATION
 
         Page 4
 
         
 
         
 
              Claimant was examined on February 20, 1989  by  W. John 
 
         Robb, M.D.  Dr. Robb diagnosed claimant as having chronic 
 
         recurrent strain of the lumbosacral  spine,  spondylolisthesis at 
 
         the L5-Sl level in the first degree and  degenerative disc 
 
         disease at the L3-4 and L5-Sl spinal levels.  Dr. Robb stated 
 
         that claimant has a long-standing history of degenerative disc 
 
         disease and that he was unable to assign any of the abnormalities 
 
         in claimant's spine to any particular incident.  Dr. Robb 
 
         assigned significant activity restrictions, though he felt 
 
         claimant was not motivated to return to work.  He rated claimant 
 
         as having a 15 percent permanent impairment, of which one-half 
 
         was related to stress and work to which claimant's spine had been 
 
         subjected over the years (defendant's exhibit A, pages 28-32).  
 
         Dr. Robb's assessment is accepted as being correct.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Roger Marquardt, a qualified vocational rehabilitation 
 
         counselor, stated that Kerr is limited to very sedentary work, 
 
         according to the restrictions recommended by Dr. Pontarelli.  
 
         With claimant's educational level and work history, he was 
 
         unaware of any type of  work which claimant could perform.  He 
 
         stated that claimant needs very sedentary, unskilled work and 
 
         that claimant's access to that type of employment was nearly 
 
         nonexistent.  Marquardt  stated that, in January of 1987 when 
 
         claimant returned to work, he was able to perform medium work, 
 
         which constitutes 80 percent of the job market for unskilled and 
 
         semi-skilled jobs.  Marquardt felt that claimant is currently 
 
         unemployable and has no earning capacity.  Marquardt agreed with 
 
         Dr. Robb's assessment that claimant lacked motivation.  Marquardt 
 
         also stated that, if Dr. Robb's activity restrictions were 
 
         applied, claimant would be capable of performing light work and 
 
         would be employable.
 
         
 
              Rick Innis, the Sheller-Globe human resource manager, stated 
 
         that, under Dr. Robb's  restrictions, claimant could perform a 
 
         "finish operator" job, a classification which constitutes 
 
         approximately three-fourths of the  800 jobs  in the Iowa City 
 
         Sheller-Globe plant.  Innis stated that, while some of the jobs 
 
         involved twisting of the torso, a portion of them could be 
 
         modified to eliminate that activity.
 
         
 
              Having observed claimant's appearance and demeanor at 
 
         hearing and considered it together with all the evidence in the 
 
         case, it is determined that claimant.is not particularly 
 
         motivated to return to work and that his  stated symptoms are 
 
         somewhat exaggerated, even though they do exist.  The  fact that 
 
         he declined a surgical remedy is an indication that his distress 
 
         is not severe.  It is determined that Dr. Robb's assessment of 
 
         claimant's physical capacities is more
 
         
 
         
 
         
 
         KERR v. SHELLER-GLOBE CORPORATION
 
         Page 5
 
         
 
         
 
         accurate than the assessment made by Dr. Pontarelli.  It is also 
 
         determined that claimant's condition did worsen  during the time 
 
         that he resumed working in early 1987.
 
         
 
              According to vocational consultant Marquardt, claimant is 
 
         capable of light work under Dr. Robb's restrictions.  It is 
 
         therefore determined that claimant is employable, although he has 
 
         reduced physical capacities and reduced earning capacity.
 
         
 
              After returning to work on November 6, 1987, claimant 
 
         continued to work until July, 1988.  The record does not show 
 
         that any physician recommended claimant cease working in July, 
 
         1988.  Claimant stated that he presently  could not perform the 
 
         same work which he had performed up to July, 1988. Claimant 
 
         related that he has applied for two jobs since July of 1988, but 
 
         was not hired for either.  Claimant's attempt to find replacement 
 
         employment has  not been substantial.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              It is determined that the injury of June 15, 1987 made 
 
         claimant incapable of performing the medium work which  he had 
 
         performed prior to that time.  Rick Innis stated that, when 
 
         claimant resumed work in November, 1988, he was assigned a light 
 
         job.  Innis could not state if claimant ever left light work 
 
         prior to July of 1988 when he ceased his employment.
 
         
 
              The evidence from Drs. Beck, Robb and Pontarelli clearly 
 
         establishes that claimant sustained a cumulative trauma injury 
 
         which was proximately caused by his  work.  It also establishes 
 
         that the injury was an aggravation  of a preexisting condition.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on June 15, 1987 which arose 
 
         out of and in the course of his employment.  McDowell v. Town of 
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury.or:disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in
 
         
 
         
 
         
 
         KERR v. SHELLER-GLOBE CORPORATION
 
         Page 6
 
         
 
         
 
         disability, claimant is entitled to recover.  Nicks v. Davenport 
 
         Produce Co., 254 Iowa 130, 115 N.W.2d  812,  815 (1962).
 
         
 
              The date of injury for injuries resulting from cumulative 
 
         trauma is the day on which disability commences.  McKeever Custom 
 
         Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).
 
         
 
              When dealing with cumulative trauma injuries, there is a 
 
         separate injury each time the employee is off work long enough to 
 
         be entitled to recover weekly compensation benefits.  Any 
 
         permanent disability attributable to a  prior injury cannot be 
 
         recovered in a case based on a subsequent injury.  Babe v. 
 
         Greyhound Lines, Inc., No. 89-113 (Iowa Ct. App. March 27, 1990), 
 
         file numbers 706132 and 790714 (App. Decn., February 29, 1988).
 
         
 
              The evidence in this case shows two dates of injury, one 
 
         around Christmas of 1986, and the other being June 15, 1987.  Any 
 
         claim for benefits based upon the 1986 injury is barred by lack 
 
         of notice under section 85.23 of  The Code.  That injury was 
 
         sufficiently serious to cause claimant to be disabled from work 
 
         for a period of approximately four weeks.  The petition was filed 
 
         on August 25, 1987, well within the requirements of section 85.23 
 
         for a June 15, 1987 injury.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant returned to work after being released in January, 
 
         1987 and continued to work until mid-June.  He ceased working 
 
         June 15, 1987 and was off work until returning in November, 1987.  
 
         On November 5, 1987, Dr. Pontarelli released claimant to resume 
 
         working (claimant's exhibit 7).  It is concluded that claimant is 
 
         entitled to recover healing period compensation under Iowa  Code 
 
         section 85.34(l) commencing June 16, 1987 and running through 
 
         November 5, 1987, a span of 20 and 3/7 weeks.
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W.2d 899, 902 (1935)  as  follows: "It is therefore 
 
         plain that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss  of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages.of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to
 
         
 
         
 
         
 
         KERR v. SHELLER-GLOBE CORPORATION
 
         Page 7
 
         
 
         
 
         the injured employee's age, education, qualifications, experience 
 
         and inability to engage in employment for which he is fitted.  
 
         Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 
 
         251, 257 (1963).
 
         
 
              Industrial disability or loss of earning capacity is a 
 
         concept that is quite similar to impairment of earning capacity, 
 
         an element of damage in a tort case.  Impairment of physical 
 
         capacity creates an inference of lessened earning capacity.  The 
 
         basic element to be determined, however, is the reduction in 
 
         value of the general earning capacity of the person, rather than 
 
         the loss of wages or earnings in a specific occupation.  
 
         Post-injury earnings create a presumption of earning capacity.  
 
         The earnings are not synonymous with earning capacity and the 
 
         presumption may be rebutted by evidence showing the earnings to 
 
         be an unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
         (Iowa 1973); Holmquist v. Volkswagon of America, Inc.,  261 
 
         N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison 
 
         County, 34th Biennial Report, 218 (1979); 2 Larson Workmen's 
 
         Compensation Law, sections 57.21 and 57.31.
 
         
 
              When all the material factors of industrial disability are 
 
         considered, it is determined and concluded that Larry D. Kerr has 
 
         a 20 percent permanent partial disability which was proximately 
 
         caused by the June 15, 1987 injury.  This entitles him to receive 
 
         100 weeks of permanent partial disability compensation payable 
 
         commencing November 6, 1987 under Iowa.Code section 85.34(2)(u).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that Sheller-Globe Corporation pay 
 
         Larry D. Kerr twenty and three-sevenths (20 3/7) weeks of 
 
         compensation for healing period at the rate of one hundred 
 
         ninety-eight and 76/100 dollars ($198.76) per week payable 
 
         commencing June 16, 1987.
 
         
 
              IT IS FURTHER ORDERED that  Sheller-Globe  Corporation pay 
 
         Larry D. Kerr one hundred (100) weeks  of  compensation for 
 
         permanent partial disability at the rate of one hundred 
 
         ninety-eight and 76/100 dollars ($198.76) per week payable 
 
         commencing November 6, 1987.
 
         
 
              IT IS FURTHER ORDERED that Sheller-Globe Corporation pay 
 
         interest pursuant to Iowa Code section 85.30 computed from the 
 
         date each payment came due until the date of actual payment.
 
         
 
         
 
         
 
         KERR v. SHELLER-GLOBE CORPORATION
 
         Page 8
 
         
 
         
 
              IT IS FURTHER ORDERED that the costs of this action are 
 
         assessed against Sheller-Globe Corporation in accordance with 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              IT IS FURTHER ORDERED that Sheller-Globe Corporation file 
 
         claim activity reports as requested by this agency pursuant to 
 
         Division of Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 29th day of June, 1990.
 
         
 
         
 
         
 
         
 
         
 
                                       MICHAEL G.TRIER
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Clemens Erdahl
 
         Attorney at Law
 
         311 Iowa State Bank Building
 
         Iowa City, Iowa  52244
 
         
 
         Mr. Harry W. Dahl
 
         Attorney at Law
 
         974 73rd Street, Suite 16
 
         Des Moines, Iowa  50312
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1402.30, 2206, 2209
 
                                         2901
 
                                         Filed June 29, 1990
 
                                         MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         LARRY D. KERR,
 
         
 
              Claimant,                               File No. 848697
 
         
 
         VS.                                      A R B I T R A T I 0 N
 
         
 
         SHELLER-GLOBE CORPORATION,                   D E C I S I 0 N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         1402.30, 2206, 2209, 2901
 
         
 
              Claimant, with a long-standing history of degenerative disc 
 
         disease, was found to have sustained an injury through cumulative 
 
         trauma which was an aggravation of a preexisting condition.
 
         
 
              Claimant awarded healing period and permanent partial 
 
         disability compensation where he was unable to resume the level 
 
         of activity he had experienced prior to the injury.
 
         
 
              The evidence showed two injuries by cumulative trauma, 
 
         approximately six months apart.  The first was held barred due to 
 
         lack of notice where claimant had been off work for approximately 
 
         a month as a result of that injury and had not made claim.  
 
         Permanent partial disability awarded only for disability 
 
         attributable to the recent injury and not for any which existed 
 
         as a result of the prior injury.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DENNIS MESSERLY,
 
         
 
              Claimant,                             File No. 848699
 
         
 
         vs.                                     A R B I T R A T I O N
 
         
 
         CROUSE CARTAGE COMPANY,                    D E C I S I O N
 
         
 
              Employer,
 
                                                       F I L E D
 
         and
 
                                                      APR 04 1989
 
         LIBERTY MUTUAL INSURANCE CO.,
 
                                                  INDUSTRIAL SERVICES
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Dennis 
 
         Messerly against Crouse Cartage Company, employer, and Liberty 
 
         Mutual Insurance Company, the employer's insurance carrier.  The 
 
         case was heard and fully submitted on June 13, 1988 at Fort 
 
         Dodge, Iowa.  The record in this proceeding consists of testimony 
 
         from Dennis Messerly, Sylvia Messerly and Elmer Baardson.  The 
 
         record also contains claimant's exhibits 1 through 14 and 
 
         defendants' exhibits A and C.
 
         
 
                                    ISSUES
 
         
 
              The issues presented by the parties for determination are 
 
         whether claimant sustained an injury on May 14, 1987 which arose 
 
         out of and in the course of his employment with Crouse Cartage 
 
         Company; determination of claimant's entitlement to compensation 
 
         for healing period and permanent partial disability; 
 
         determination of claimant's entitlement to recover medical 
 
         expenses, transportation expenses and costs.  It was stipulated 
 
         that the rate of compensation is $367.18 per week.
 
         
 
                            SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Of all the evidence received at the hearing, only that 
 
         considered most pertinent to this decision is discussed. 
 
         Conclusions about what the evidence showed are inevitable with 
 
         any summarization.  The conclusions in the following summary 
 
         should be considered to be preliminary findings of fact.
 
         
 
              Dennis Messerly is a 45-year-old Fort Dodge resident who 
 
         graduated from high school in 1960.  He has been employed by 
 
                                                
 
                                                         
 
         Crouse Cartage Company since 1969.  He has worked primarily as a 
 
         dock worker, but has also worked as a truck driver.  Claimant 
 
         denied having any further education or vocational training beyond 
 
         high school, except for some training and experience operating 
 
         radar when he was in the Air National Guard approximately 20 
 
         years ago.
 
         
 
              Claimant has a long history of back problems.  He has 
 
         undergone three laminectomies.  The first was performed on August 
 
         8, 1978 by Robert Hayne, M.D., a neurosurgeon (exhibit 7, page 
 
         25).  Following that surgery, Dr. Hayne assigned claimant a nine 
 
         percent permanent impairment rating and recommended that he limit 
 
         his lifting to 40 pounds.  Dr. Hayne also recommended that 
 
         claimant change the type of work that he performed (exhibit 7, 
 
         pages 12, 17, 19 and 23).  The herniated disc for which surgery 
 
         was performed was located at the fifth lumbar interspace on the 
 
         right side (exhibit 7, page 25).  The pathology report showed 
 
         four grams of disc material to have been removed (exhibit 8, page 
 
         24).
 
         
 
              Messerly again developed back trouble and underwent a second 
 
         laminectomy, this time for a herniated disc at the fourth lumbar 
 
         interspace on the left side (exhibit 7, pages 12 and 20; exhibit 
 
         8, page 55).  Three point five grams of disc material was removed 
 
         (exhibit 8, page 64).  Following that surgery, Dr. Hayne, the 
 
         surgeon, assigned claimant an eight percent permanent impairment 
 
         rating due to the second injury and surgery (exhibit 7, page 
 
         11).
 
         
 
              In 1985, claimant experienced an increase in his symptoms 
 
         for which he again consulted Dr. Hayne.  Dr. Hayne treated 
 
         claimant with conservative measures.  Claimant's condition 
 
         improved and he was released to return to work approximately two 
 
         weeks thereafter. Dr. Hayne felt that the incident had been a 
 
         reaggravation of the previous condition and that it did not 
 
         increase claimant's level of disability (exhibit 7, page 13).
 
         
 
              Messerly returned to truck driving and dock work at Crouse 
 
         Cartage following each of the two first surgeries.
 
         
 
              James Rathke, M.D., had performed a physical examination of 
 
         claimant on March 22, 1979 and advised that claimant avoid heavy 
 
         lifting and long periods.of driving (exhibit 9, page 29).
 
         
 
              Messerly testified that, on May 14, 1987, he was working a 
 
         job which provided a combination of driving, loading and 
 
         unloading for which he was paid $13.00 per hour.  Claimant 
 
         testified that, on May 14, 1987, he was painting the 
 
         undercarriage and fuel tanks on an old straight truck.  He stated 
 
         that he was in a stooping or squatting position when he backed 
 
         into a steel step located under the side door of the truck.  
 
         Claimant related that he experienced a sharp pain in his lower 
 
         back and a burning sensation down his left leg.  Messerly stated 
 
         that he tried to shake it off and talked to Elmer, a coworker.  
 
         He stated that he cleaned the paint gun, went home and went to 
 
                                                
 
                                                         
 
         bed early.
 
         
 
              Elmer Baardson, a 25-year employee of Crouse Cartage 
 
         Company, testified that, on May 14, 1987, claimant had been spray 
 
         painting the undercarriage, was in a bent-over position, moving 
 
         backwards and raising up at the same time, and backed into a 
 
         steel step on the box of the truck.  Baardson stated that 
 
         claimant went down on his knees and then got up and walked around 
 
         for a few minutes. Baardson testified that claimant stated that 
 
         he was in a lot of pain, but then resumed spray painting.  
 
         Baardson testified that he had spoken with claimant prior to the 
 
         time when claimant started spraying that day and that claimant 
 
         had made no mention of his back hurting.  Baardson was aware of 
 
         claimant's prior back problems.  Baardson stated that he saw 
 
         claimant occasionally at work, but that claimant had not said 
 
         anything on prior occasions about back pain.
 
         
 
              Messerly testified that, on Friday, May 15, 1987, he had a 
 
         peddle run to Iowa Falls.  He stated that his back was sore, but 
 
         that it was an unusually light run and he was able to complete 
 
         the day.  Claimant stated that he spent the weekend in bed, 
 
         worked Monday, May 18, 1987, hoping to work it off, but that 
 
         instead it worsened.  Claimant stated that, by Tuesday morning, 
 
         he was unable to function, reported to George Savery, a 
 
         supervisor, that he was having trouble walking and needed to see 
 
         a doctor.  Claimant consulted Janet Secor, D.O., who in turn 
 
         referred claimant to Robert C. Jones, M.D., a neurosurgeon.
 
         
 
              Diagnostic tests were conducted under Dr. Jones' direction. 
 
         Dr. Jones diagnosed claimant as having a herniated disc at the 
 
         third lumbar interspace on the left side.  Laminectomy surgery 
 
         was performed on June 1, 1987 at which time a massive extruded 
 
         disc was found (exhibit 4, page 24).  The disc material which was 
 
         removed weighed 10.7 grams (exhibit 4, page 28).  Dr. Jones was 
 
         of the opinion that the herniated disc was of recent origin 
 
         because a person with a fragment that large would likely have 
 
         severe pain (exhibit 1; exhibit 3, pages 5 and 6).
 
         
 
              When claimant initially saw Dr. Secor, he apparently did not 
 
         provide a history of backing into the metal step that was 
 
         presented at hearing.  He did, however, provide that history to 
 
         Dr. Jones when he first was examined on May 22, 1987 (exhibit 3, 
 
         page 3).  Claimant also provided that same history when he was 
 
         admitted to the hospital for surgery (exhibit 4, page 7).
 
         
 
              Dr. Jones expressed the opinion that the herniated lumbar 
 
         disc for which surgery was performed was related to the work 
 
         injury which claimant had reported to him (exhibit 1; exhibit 3, 
 
         pages 18 and 19).
 
         
 
              Dr. Jones continued to provide follow-up treatment to 
 
         claimant.  He saw claimant on October 5, 1987 at which time he 
 
         released claimant to perform light work, but not to perform his 
 
         previous job (exhibit 2; exhibit 3, page 10).  Dr. Jones 
 
         subsequently saw claimant on March 11, 1988 at which time he 
 
                                                
 
                                                         
 
         again indicated that claimant could perform light duty consistent 
 
         with a lifting limit of 20 pounds and avoidance of any activity 
 
         which was too repetitive.  He suggested that claimant find a job 
 
         where he could alternately sit or stand (exhibit 2).  Dr. Jones 
 
         indicated that full healing from the type of injury and surgery 
 
         claimant had undergone usually takes six months from the date of 
 
         surgery.  He stated that claimant's substantial recuperation was 
 
         not completed in October, 1987, but that it was substantially 
 
         completed by March, 1988 (exhibit 3, page 20).
 
         
 
              Dr. Jones testified in his deposition taken May 4, 1988 that 
 
         claimant also has psychological impairment and depression 
 
         resulting from his lack of ability to return to work (exhibit 3, 
 
         pages 12 and 13).  Dr. Jones felt that the episode had almost 
 
         destroyed claimant psychologically and that, if the insurance 
 
         carrier had not put claimant through so many hassles, the 
 
         psychological disturbance would not have been as severe (exhibit 
 
         3, pages 17 and 18).  Dr. Jones stated that claimant has a ten 
 
         percent permanent impairment as a result of the most recent 
 
         injury and surgery (exhibit 3, pages 11, 13 and 19).  Dr. Jones 
 
         declined to express an opinion regarding claimant's entire 
 
         overall physical impairment (exhibit 3, page 19).
 
         
 
              Claimant has been identified as having a spina bifida 
 
         occulta, but none of the physicians have commented on whether or 
 
 
 
                            
 
                                                         
 
         not that condition is in any way responsible for any of the three 
 
         herniated discs which claimant has experienced.
 
         
 
              Claimant testified that he was not allowed to return to work 
 
         in a light-duty status and that the employer had no light-duty 
 
         work, other than for management positions.  Claimant has not 
 
         actively sought work.  His wife has recently become employed
 
         and claimant now performs some of the housework.
 
         
 
              Claimant was evaluated by the Iowa Central Community College 
 
         Assessment Center in early 1988.  He was shown to have high 
 
         aptitudes for general learning and verbal skills.  His aptitudes 
 
         for motor coordination, clerical skills and manual dexterity were 
 
         low.  Tests showed that claimant had a higher aptitude for 
 
         working with things rather than for working with people.  The 
 
         studies indicated that claimant had the intellectual capacity to 
 
         successfully complete a two- to four-year college program.  The 
 
         evaluation report suggested that claimant enroll in a one-year 
 
         drafting program and also that he take a supervision and 
 
         management course given at the college.  Possible job areas which 
 
         were identified included salesperson, sales representative and 
 
         pharmacy helper (exhibit 6).
 
         
 
              Messerly testified that, at the present time, his ability to 
 
         sit is limited to approximately one-half to one hour and that it 
 
         affects both of his legs and intensifies the pain that is in his 
 
         lower back.  He indicated that he can stand for approximately 20 
 
         minutes.  Claimant stated that, after his two prior 
 
         laminectomies, he was able to return to work at Crouse Cartage 
 
         Company and to perform his regular duties.  He stated that he 
 
         will not be able to return to work at the present time unless 
 
         something really changes.  Claimant stated that he is taking 
 
         anti-depressant medications prescribed by Dr. Jones.
 
         
 
              Claimant testified that he is improving and that there are 
 
         things he can do now that he could not do three months ago.  He 
 
         stated that he is not receiving physical therapy and that if he 
 
         performs the exercises recommended by the doctors, it aggravates 
 
         his condition and he is down for a couple of days.
 
         
 
              Claimant stated that, in April, 1988, he had a flare-up 
 
         without any particular identifiable cause.
 
         
 
              Claimant testified that he has looked for work and has tried 
 
         to return to work at Crouse Cartage Company.  He testified that 
 
         he has tried to obtain car sales jobs, that he has gone to Job 
 
         Service and that he also reads the paper looking for job 
 
         openings. He stated that, when at home, he does dishes, light 
 
         housework and vacuums some.
 
         
 
              Messerly testified that he still has a bill outstanding at 
 
         Mercy Hospital in the amount of $3,609.56 (exhibit 11).  Claimant 
 
         testified that exhibit 12 is mileage incurred in traveling to 
 
         receive treatment from Dr. Jones at Des Moines, Iowa.  Claimant 
 
         stated that the motel bill is for the first trip to the hospital 
 
                                                
 
                                                         
 
         in Des Moines when he was unable to get in when he arrived and 
 
         had to stay over until he could,be admitted on the following day. 
 
         Claimant testified that all of the pharmacy bills shown in 
 
         exhibit 14 were prescribed by Dr. Jones for his back problems.
 
         
 
              Claimant testified that he has constant pain in the small of 
 
         his back and a lot of pain in his left leg, including spasms in 
 
         his left calf.  He stated that he has difficulty walking.  
 
         Claimant testified that, since May 14, 1987, he and his wife have 
 
         undergone a role reversal.
 
         
 
              Claimant indicated that he feels he could do well in 
 
         drafting and that he thinks drafting jobs are available in the 
 
         area of his residence.  Claimant testified that he has not taken 
 
         any steps to enroll in further schooling because he has no funds 
 
         with which to do so.  Claimant stated that he does not know if he 
 
         will have money to go to school.  He stated that vocational 
 
         rehabilitation has not given,him any actual job leads.  He had 
 
         not, however, sought assistance through the Iowa Central 
 
         Community College financial aid office.
 
              Claimant testified that, after the first two surgeries, he 
 
         had been advised to use his head with regard to lifting, but that 
 
         strict restrictions have now been imposed by Dr. Jones.
 
         
 
              Sylvia Messerly testified that, on May 14, 1987, claimant 
 
         came home walking abnormally.  She stated that he told her he had 
 
         run into a step at work.  She raised his shirt and saw a scrape 
 
         on his lower back.  Sylvia testified that claimant lay down that 
 
         evening and all of the following weekend.  She stated that by 
 
         Tuesday morning of the following week, claimant was in severe 
 
         pain, called George at work and that she then took him to the 
 
         doctor.
 
         
 
              Sylvia Messerly stated that since the most recent surgery, 
 
         claimant's activities around the home are limited.  She stated 
 
         that he tries to maintain the inside of the house, but that she 
 
         performs lawn mowing and snow clearing.  She stated that she has 
 
         continued to see improvement in his condition during the last 
 
         three to six months, but that it is slow.  Sylvia testified that 
 
         claimant's nerves are now touchy and that he was not taking nerve 
 
         medication or anti-depressants prior to May 14, 1987.
 
         
 
              Sylvia testified that they have a patio chair at their 
 
         kitchen table because it is the only one claimant finds to be 
 
         comfortable since the most recent surgery.  She stated that he 
 
         has lost his sense of humor and lacks self-esteem.  She stated 
 
         that he has trouble sleeping and has recently broken out with red 
 
         blotches on his face.
 
         
 
              Sylvia testified that ever since claimant's first surgery, 
 
         he has had problems with his back and days that were not good.  
 
         She stated that recovery from the second surgery was very fast 
 
         and good, but that claimant's recovery from the most recent 
 
         surgery has been worse than either of the other two.
 
         
 
                                                
 
                                                         
 
                       APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on May 14, 1987 which arose 
 
         out of and in the course of his employment.  McDowell v. Town of 
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The appearance and demeanor of all the witnesses who 
 
         testified at hearing was considered.  The scenario of injury 
 
         which claimant and Elmer Baardson described at hearing is 
 
         corroborated by the history of injury which claimant provided to 
 
         Dr. Jones and when admitted to Mercy Hospital.  While that 
 
         history is not contained in Dr. Secor's notes, there is likewise 
 
         no conflicting history.  It is therefore determined that Dennis 
 
         Messerly injured his back on May 14, 1987 by backing into the 
 
         step of a truck which he was painting for his employer.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of May 14, 1987 is causally related 
 
         to the disability on which he now bases his claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
         insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              Claimant testified to a scenario wherein the incident 
 
         occurred and severe pain followed.  Dr. Jones, the treating 
 
         neurosurgeon, expressed the opinion that the herniated disc for 
 
         which he performed surgery was caused by claimant's May 14, 1987 
 
         injury.  The weight of disc material removed was twice as large 
 
         as that removed in either of the prior surgeries, corroborating 
 
         Dr. Jones' opinion of recent herniation.  The record fails to 
 
         show any directly conflicting evidence.
 
         
 
              A compensable injury can be either an original injury or an 
 
         aggravation of some preexisting condition or weakness.  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 surgery which was performed as a result of this most 
 
         recent injury was at a level of claimant's spine which had not 
 
         been previously subjected to surgery and for which no previous 
 
         injury had been identified.  For a cause to be proximate, it must 
 
         be a substantial factor in producing the result, but it need not 
 
         be the only cause.  Blacksmith v. All-American, Inc., 290 N.W.2d 
 
         348, 354 (Iowa 1980).  It is therefore determined that the 
 
         incident of May 14, 1987 proximately caused the herniated lumbar 
 
         disc which Dr. Jones treated by surgery.
 
         
 
              Claimant clearly had preexisting disability in his lumbar 
 
         spine as a result of the prior injuries and surgeries.  He clearly 
 
         was not asymptomatic.  He had limitations.  The evidence shows 
 
         that, by continuing to work at Crouse Cartage Company, he violated 
 
         the 40-pound lifting restriction which had been imposed by Dr. 
 
         Hayne on May 15, 1979 (exhibit 7, page 17).  Claimant also 
 
         disregarded the earlier recommendations from Dr. Hayne that he 
 
         change into a different line of work.  Clearly, some degree of 
 
         preexisting permanent partial disability was present prior to May 
 
         14, 1987.  The injury claimant sustained in this case is 
 
         technically a new injury since it involves a level of his spine 
 
         which had not previously been identified as having been injured, 
 
         but it is also an aggravation of a preexisting condition when the 
 
         spine is considered as a unit.  An injured party is not charged 
 
         with the burden of proving the actual apportionment of damages in 
 
         a case that deals with aggravation of a preexisting condition.  
 
         Any burden of that nature must be assumed by the defendant, since 
 
         the defendant is the party standing to gain by litigating the 
 
         apportionment issue.  If the evidence is not sufficient to 
 
 
 
                       
 
                                                         
 
         apportion the disability, then the defendant is responsible for 
 
         all the disability that exists.  Varied Enterprises, Inc. v. 
 
         Sumner, 353 N.W.2d 407 (Iowa 1984); Becker v. D & E Distributing 
 
         Co., 247 N.W.2d 727, 731 (Iowa 1976); 2 Damages and Tort Actions, 
 
         section 15.34(l](a); 22 Am.Jur.2d, section 122.
 
         
 
              As claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Industrial disability or loss of earning capacity is a 
 
         concept that is quite similar to impairment of earning capacity, 
 
         an element of damage in a tort case.  Impairment of physical 
 
         capacity creates an inference of lessened earning capacity.  The 
 
         basic element to be determined, however, is the reduction in 
 
         value of the general earning capacity of the person, rather than 
 
         the loss of wages or earnings in a specific occupation.  
 
         Post-injury earnings create a presumption of earning capacity.  
 
         The earnings are not synonymous with earning capacity and the 
 
         presumption may be rebutted by evidence showing the earnings to 
 
         be an unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
         (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
         516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
         34th Biennial Report, 218 (1979): 2 Larson Workmen's Compensation 
 
         Law, sections 57.21 and 57.31.
 
         
 
              In view of the prior recommendations from claimant's 
 
         physicians and his two previous surgeries, it is apparent that 
 
         his earning capacity was impaired prior to May 14, 1987.  The 
 
         evidence in this case is sufficiently strong to make a 
 
         determination of preexisting industrial disability in order to 
 
         apportion the entire disability which currently exists.  Prior to 
 
         the May 14, 1987 injury, claimant had undergone laminectomies at 
 
         two levels of his spine.  He experienced pain and discomfort.  
 
         Physicians had recommended that he restrict his activities.  
 
         Nevertheless, claimant continued to be gainfully employed by his 
 
         long-term employer, Crouse Cartage Company.  According to his 
 
         testimony, he was earning approximately $30,000 per year at the 
 
         time of injury. Under all these circumstances, it is determined 
 
         that claimant had approximately a 20% industrial disability prior 
 
         to the time of the May 14, 1987 injury.  Since that May 14, 1987 
 
                                                
 
                                                         
 
         injury, claimant's permanent impairment rating has been increased 
 
         by an additional ten percent and his recommended physical 
 
         restrictions have gone from a 40-pound lifting limit to a 
 
         20-pound lifting limit.  While claimant previously was capable of 
 
         continuing to perform the type of work he performed at Crouse 
 
         Cartage Company, he no longer is capable of doing so.  In all 
 
         likelihood, he should not have been performing those activities 
 
         prior to May 14, 1987, but interestingly enough, the May 14, 1987 
 
         injury resulted from striking his back, rather than from lifting.  
 
         While claimant certainly was performing an occupation which 
 
         placed him at risk for further injury to his back from heavy 
 
         lifting and freight handling, this case does not deal with injury 
 
         resulting from that type of activity.
 
         
 
              Dennis Messerly has a high school education, but his entire 
 
         work life has been performed in the trucking industry handling 
 
         freight and driving.  He is now, at age 45, foreclosed from that 
 
         type of work.  Claimant's ability to perform extended sitting, as 
 
         is required in many white collar occupations, is limited.  He is 
 
         limited in his ability to perform continual or long-term standing 
 
         as would be required in many assembly or production types of 
 
         jobs. The recommendations from the Iowa Central Community College 
 
         Assessment Center indicate that claimant's aptitudes are better 
 
         for working with things than for working with people, yet 
 
         drafting is the only one of the suggested job areas which is not 
 
         highly involved in working with people.  Certainly, claimant's 
 
         efforts to resume employment have been lackluster.  He apparently 
 
         has sufficient intellectual capacity to successfully pursue 
 
         further academic pursuits.  His appearance and demeanor at 
 
         hearing was not inconsistent with the test results from Iowa 
 
         Central Community College.  Sylvia Messerly testified that 
 
         claimant has low self-esteem.  Dr. Jones testified that claimant 
 
         is suffering from depression.  Under those circumstances, it is 
 
         not remarkable that claimant would be less than enthusiastically 
 
         seeking work since he has not been provided any job placement or 
 
         career planning activities other than that from the college.
 
         
 
              The fact remains that, even if claimant attends a drafting 
 
         course or any other two- to four-year courses of college, he will 
 
         likely be unable to regain the level of earnings which he enjoyed 
 
         while he was employed at Crouse Cartage Company.  Without further 
 
         retraining, his employment situation is even more bleak.  An 
 
         injured employee's permanent disability is to be determined based 
 
         upon his condition as it exists at the end of the healing period, 
 
         taking into account his aptitudes for further training, but 
 
         without speculating as to his future in one particular job. 
 
         Stewart v. Crouse Cartage Co., file number 738644, (App. Decn., 
 
         February 20, 1987); Meredith v. Burger Construction, file number 
 
         816286, (Arb. Decn., February 7, 1989).  The disability is to be 
 
         compensated as it exists at the end of the healing period, not as 
 
         it may exist at some time in the future after the expenditure of 
 
         several years and several thousands of dollars in obtaining 
 
         retraining.  When all the material factors of industrial 
 
         disability are considered, it is determined that claimant has an 
 
         overall loss of earning capacity of 60%, of which 40% is related 
 
                                                
 
                                                         
 
         to the injury of May 14, 1987.
 
         
 
              Claimant seeks compensation for healing period.  Healing 
 
         period ends at the earlier of the three events identified in Code 
 
         section 85.34(1).  Since claimant has not returned to work and it 
 
         appears that he will never be medically capable of returning to 
 
         work substantially similar to that he performed at the time of 
 
         injury, his healing period ends.at the time when it is medically 
 
         indicated that further significant improvement from the injury is 
 
         not anticipated.  While many injuries have a long-term 
 
         recuperation process which can extend for as long as a year or 
 
         more, the primary and substantial portion of the healing often 
 
         occurs in a much shorter time.  Dr. Jones indicated that claimant 
 
         attained maximum significant medical improvement at some point 
 
         between October of 1987 and March of 1988.  He stated that six 
 
         months is the normal recuperation period following the type of 
 
         injury and surgery.  That testimony will be relied upon to fix 
 
         the end of claimant's healing period as December 1, 1987.
 
         
 
              Since defendants have been found liable for the injury, they 
 
         are therefore responsible, under Code section 85.27, for the 
 
         medical expenses involved in treating that injury.  These 
 
         include:
 
         
 
              Mercy Hospital Medical Center      $3,609.56
 
              Walgreen Pharmacy                     292.56
 
              Mileage (1,330 at $.21 per mile)      279.30
 
              Motel expenses                         28.95
 
         
 
         All the foregoing, which total $4,210.37, are to be paid by 
 
         defendants to claimant under the provisions of Code section 
 
         85.27. According to claimant's testimony, the Teamsters Union 
 
         insurance program apparently has subrogation rights, but the 
 
         precise amount thereof cannot be determined.  Accordingly, 
 
         payment should be made to claimant who can then satisfy those 
 
         subrogation rights.
 
         
 
              Claimant seeks to recover costs in the total amount of 
 
         $109.72 as set out in exhibit 13.  The items listed are properly 
 
         assessable as costs under Division of Industrial Services Rule 
 
         343-4.33.  Since claimant prevails in this case, costs will be 
 
         assessed against defendants.
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  Dennis Messerly injured his back on May 14, 1987 when he 
 
         backed into a metal step on a truck that he was painting.
 
         
 
              2.  Following the injury, claimant was medically incapable 
 
         of performing work in employment substantially similar to that he 
 
         performed at the time of injury from May 19, 1987 until December 
 
         1, 1987, when it was medically indicated that further significant 
 
         improvement from the injury was not anticipated.
 
         
 
              3.  Claimant's description of his continuing complaints and 
 
                                                
 
                                                         
 
         physical limitations is accurate and correct.
 
         
 
              4.  Claimant has not made a comprehensive effort to either 
 
         obtain retraining or resume employment.
 
         
 
              5.  If claimant were to make a bona fide good faith effort 
 
         to regain employment, it is unlikely that he could obtain an 
 
         earning level which would be as much as 50% of the earning level 
 
         he experienced with Crouse Cartage Company.
 
         
 
              6.  Dennis Messerly suffered a 40% loss of his earning 
 
         capacity as a result of the injuries he sustained on May 14, 
 
         1987. He had previously lost a substantial portion of his prior 
 
         earning capacity.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Dennis Messerly sustained an injury to his back on May 
 
         14, 1987 which arose out of and in the course of his employment 
 
         with Crouse Cartage Company.
 
         
 
              3.  Messerly is entitled to recover healing period 
 
         compensation under the provisions of Code section 85.34(1) 
 
         commencing May 19, 1987 and running through December 1, 1987, a 
 
         span of 28 1/7 weeks.
 
         
 
              4.  Claimant is entitled to recover 200 weeks of 
 
         compensation for permanent partial disability payable commencing 
 
         December 2, 1987, representing a 40% permanent partial disability 
 
         under the provisions of Code section 85.34(2)(u).
 
 
 
                             
 
                                                         
 
         
 
              5.  Defendants are responsible for claimant's medical 
 
         expenses in the total amount of $4,210.37.
 
         
 
                                   ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant 
 
         twenty-eight and one-seventh (28 1/7) weeks of compensation for 
 
         healing period at the stipulated rate of three hundred 
 
         sixty-seven and 18/100 dollars ($367.18) per week payable 
 
         commencing May 19, 1987.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant two 
 
         hundred (200) weeks of compensation for permanent partial 
 
         disability at the stipulated rate of three hundred sixty-seven 
 
         and 18/100 dollars ($367.18) per week payable commencing December 
 
         2, 1987.
 
         
 
              IT IS FURTHER ORDERED that defendants pay all past due 
 
         weekly compensation in a lump sum together with interest pursuant 
 
         to Iowa Code section 85.30.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant four 
 
         thousand two hundred ten and 37/100 dollars ($4,210.37) under the 
 
         provisions of Code section 85.27.
 
         
 
              IT IS FURTHER ORDERED that the costs of this proceeding are 
 
         assessed against defendants in the amount of one hundred nine and 
 
         72/100 dollars ($109.72) pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file Claim Activity 
 
         Reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 4th day of April, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Monty L. Fisher
 
         Attorney at Law
 
         Suite 200, Snell Building
 
         P.O. Box 1560
 
         Fort Dodge, Iowa  50501
 
         
 
                                                
 
                                                         
 
         Mr. Tito Trevino
 
         Attorney at Law
 
         Suite 503, Snell Building
 
         P.O. Box 1680
 
         Fort Dodge, Iowa  50501
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1402.40, 1403.30, 1803
 
                                                 Filed April 4, 1989
 
                                                 MICHAEL G. TRIER
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DENNIS MESSERLY,
 
         
 
              Claimant,
 
         
 
         vs.                                         File No. 848699
 
         
 
         CROUSE CARTAGE COMPANY,                  A R B I T R A T I 0 N
 
         
 
              Employer,                              D E C I S I 0 N
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1402.40, 1403.30, 1803
 
         
 
              Claimant, who was injured, underwent his third lumbar 
 
         laminectomy, each was at a different level of his spine.  
 
         Following the first two, claimant was able to return to his same 
 
         employment, but after the third, that employment was foreclosed to 
 
         him.  It was held that the burden of proof showing apportionment 
 
         of disability rests on the employer and that, of the claimant's 
 
         60% industrial disability, 20% preexisted the most recent injury 
 
         and 40% was attributable to this most recent injury.  Claimant had 
 
         not resumed employment.  He had been a truck driver and dock 
 
         worker prior to the most recent injury.  He appeared to have 
 
         aptitude for retraining, but also was suffering from depression 
 
         which resulted from the injury.  Claimant awarded 40% permanent 
 
         partial disability based upon the most recent injury.