9999
 
            Filed February 25, 1992
 
            Byron K. Orton
 
            MGT
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            MICHAEL G. HAIN,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 850475
 
            GRAIN PROCESSING CORPORATION, :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA INSURANCE,              :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
            
 
            9999
 
            Summary affirmance of deputy's decision filed March 26, 
 
            1991, with short additional analysis.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MICHAEL G. HAIN,              :
 
                                          :
 
                 Claimant,                :
 
                                          :         File No. 850475
 
            vs.                           :
 
                                          :      A R B I T R A T I O N
 
            GRAIN PROCESSING CORPORATION, :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            CIGNA INSURANCE,              :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Michael 
 
            G. Hain based upon an injury that occurred on April 11, 
 
            1987.  Michael seeks compensation for healing period, 
 
            permanent disability and payment of medical expenses.  The 
 
            issues to be determined include whether or not the 
 
            disability related to the claimant's back was proximately 
 
            caused by the April 11, 1987 injury.
 
            
 
                 The case was heard at Cedar Rapids, Iowa on January 7, 
 
            1991.  The record in this case consists of testimony from 
 
            Michael G. Hain, Judy Hain, Jerry Flakne, Nee Leau, Bob 
 
            Morrison and John Toben.  The record also contains 
 
            claimant's exhibits 1 through 4 and 6 through 11 as well as 
 
            defendants' exhibits A through G.  The record also contains 
 
            the deposition of Earl Y. Bickel, M.D., taken January 9, 
 
            1991.
 
            
 
                 Counsel for both parties blatantly ignored the 
 
            requirements of paragraph 10(2) of the hearing assignment 
 
            order.  Each party offered its own version of the exhibits.  
 
            There is very little difference between the claimant's 
 
            exhibits and the defendants' exhibits, other than the order 
 
            in which they are arranged and the number or letter 
 
            designation given to them.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Michael G. Hain is a 45-year-old man who did not 
 
            complete high school.  His work history includes line 
 
            assembly, foundry work, farming and assembling pallets.  He 
 
            has worked for a grain processing corporation, the defendant 
 
            employer, for approximately 15 years.
 
            
 
                 Michael has a long history of back problems commencing 
 
            in approximately 1980 with a fall down the basement stairs 
 
            at his home.  Michael received treatment from the Steindler 
 
            Orthopaedic Clinic in Iowa City, Iowa.  When conservative 
 
            management did not relieve his symptoms, he underwent 
 
            laminotomy surgery at the L3-4, L4-5 and L5-S1 levels of his 
 
            spine with removal of the disc at the L4-5 level on the left 
 
            (claimant's exhibit 7; defendants' exhibit E).
 
            
 
                 The surgery did not completely resolve Michael's 
 
            symptoms.  A note from December 22, 1981 indicated that he 
 
            should wear a back support.
 
            
 
                 According to a report dated January 29, 1982 
 
            (defendants' exhibit B, pages 1 and 2), claimant did return 
 
            to work in June 1981, but developed problems and 
 
            discontinued work on November 9.  That report marks the 
 
            first contact that orthopaedic surgeon Earl Y. Bickel, M.D., 
 
            had with this claimant.  Dr. Bickel saw claimant through May 
 
            of 1982 and then reinstituted treatment in May and June of 
 
            1984 (defendants' exhibit B, pages 3 and 4).  Thereafter, 
 
            claimant did not see Dr. Bickel until August 18, 1987.
 
            
 
                 Claimant's family physician was Steven F. Palmer, M.D.  
 
            Dr. Palmer's notes indicate that Michael was off work from 
 
            mid-November 1985 through early January 1986 for an ankle 
 
            sprain (defendants' exhibit A, pages 1, 2 and 4; claimant's 
 
            exhibit 3a, pages 2 and 3).
 
            
 
                 According to claimant and his wife, his back was 
 
            generally pretty good until April 11, 1987 when the flash 
 
            fire occurred at his place of employment.  In that fire, the 
 
            claimant sustained burns on his left upper extremity, singed 
 
            eyebrows and minor burns on his face (defendants' exhibit C; 
 
            claimant's exhibit 11).  The emergency room records do not 
 
            indicate any signs of trauma being apparent on claimant's 
 
            back.  According to claimant, he had fallen while hurrying 
 
            to leave the location of the fire, landing on his back and 
 
            shoulder.  The first written notation of such a fall is 
 
            found in Dr. Bickel's records dated August 2, 1988.
 
            
 
                 Dr. Palmer's records dealing with the fire indicate 
 
            that claimant was having problems with his back.  
 
            Nevertheless, Dr. Palmer released claimant to return to work 
 
            on May 4, indicating that he needs to keep working on his 
 
            back a little bit ( defendants' exhibit A, pages 3 and 4; 
 
            claimant's exhibit 3a, pages 3 and 4).  Claimant did not 
 
            return to work on May 4, however.  Prior to that time, he 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            reinjured his left ankle and then remained off work until 
 
            approximately June 4, 1987.
 
            
 
                 On July 31, 1987, Dr. Palmer issued a report in which 
 
            he stated that the fire incident had not caused any 
 
            worsening of claimant's back condition (defendants' exhibit 
 
            A, page 7; claimant's exhibit 3c).
 
            
 
                 At some undetermined time Dr. Palmer issued a report in 
 
            which he stated that claimant has been disabled by low back 
 
            pain since April 11, 1987.  None of the notes made by Dr. 
 
            Palmer subsequent to April 27, 1987 make any reference to 
 
            claimant having back complaints.
 
            
 
                 According to claimant, his back worsened while he was 
 
            at work to the extent that he needed to obtain assistance 
 
            from a coemployee named Bob Morrison in performing his 
 
            duties.  Claimant took vacation in August.  He stated that 
 
            he just laid around because his back was bothering.  The 
 
            vacation was in southwest Missouri.  He stated that his back 
 
            got really bad while walking at Silver Dollar City during 
 
            that vacation.  Following the vacation, he returned to work.  
 
            He stated that, when he awoke on August 17, 1987, his back 
 
            was bothering worse than it had been previously.  He stated 
 
            that he went to work that day, despite the fact that his 
 
            back was really bad.  According to Nee Leau, who was a 
 
            security guard, claimant phoned in on August 18, 1987 and 
 
            reported that he was not coming to work and that the reason 
 
            was not related to his employment.
 
            
 
                 On August 18, 1987, claimant again sought treatment 
 
            from Dr. Bickel.  The history given to Dr. Bickel was 
 
            essentially that the onset of his back pain occurred while 
 
            putting on boots the previous day (defendants' exhibit B, 
 
            pages 6, 7, 10, 16, 17 and 23; Dr. Bickel deposition, pages 
 
            41, 42, 45 and 46).
 
            
 
                 Bob Morrison, claimant's coemployee, testified at 
 
            hearing that he had helped claimant perform heavy work, both 
 
            prior to and after the time the flash fire occurred.  
 
            Morrison stated that there was no noticeable difference in 
 
            the amount of assistance he provided to the claimant after 
 
            the fire in comparison to the amount he had provided before 
 
            the fire occurred.
 
            
 
                 John Toben, personnel administrator for Grain 
 
            Processing Corporation, stated that when claimant was off 
 
            work commencing in August 1987, he was paid sickness and 
 
            accident benefits rather than workers' compensation benefits 
 
            because the claimant, at that time, represented that the 
 
            condition was not work related.  According to Toben, the 
 
            first knowledge he had that claimant was claiming his back 
 
            condition was work related was when this action was 
 
            commenced.  The agency file shows that the original notice 
 
            and petition was filed August 22, 1988.
 
            
 
                 Jerry Flakne, safety director for Grain Processing 
 
            Corporation, stated that he talked with claimant shortly 
 
            following the fire and that claimant made no statement 
 
            regarding any injury to his back.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 It is found that claimant did aggravate his preexisting 
 
            back condition in some manner connected with the April 11, 
 
            1987 flash fire.  The undated report from Dr. Palmer cannot 
 
            be given much weight since it is irreconcilable with the 
 
            fact that Dr. Palmer released claimant to return to work and 
 
            that the claimant did in fact return to work for a period of 
 
            approximately two months.  No matter when the report was 
 
            issued, it cannot be reconciled with the fact that the 
 
            claimant was not disabled by a back problem during the 
 
            months of June and July 1987.
 
            
 
                 Dr. Bickel was unwilling to attribute the April 11, 
 
            1987 incidents to any increase in the claimant's disability 
 
            (Dr. Bickel deposition, pages 58-60).  Dr. Palmer reported 
 
            that the incident had not produced any permanent worsening 
 
            of claimant's back condition.  Claimant's testimony, and 
 
            that of his wife, which is to the effect that his condition 
 
            worsened is directly contradicted by the testimony from Bob 
 
            Morrison.  It is found that the evidence in this case does 
 
            not show it to be probable that whatever happened in 
 
            connection with the flash fire on April 11, 1987 was a 
 
            substantial factor in producing any part of the permanent 
 
            disability which currently afflicts Michael G. Hain.  It is 
 
            found that the events did aggravate his back, but that the 
 
            aggravation has not been shown to be anything other than 
 
            temporary as indicated by the records from Dr. Palmer and 
 
            the opinions expressed by Dr. Bickel.  There is no evidence 
 
            of any other permanent disability being caused by injuries 
 
            sustained in the fire.
 
            
 
                    
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            conclusions of law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of April 11, 
 
            1987 is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 Aggravation of a preexisting condition is one form of 
 
            compensable injury.  While a claimant is not entitled to 
 
            compensation for the results of a preexisting injury or 
 
            disease, the mere existence at the time of a subsequent 
 
            injury is not a defense.  Rose v. John Deere Ottumwa Works, 
 
            247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956).  If the 
 
            claimant had a preexisting condition or disability that is 
 
            aggravated, accelerated, worsened or lighted up so that it 
 
            results in disability, claimant is entitled to recover.  
 
            Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 
 
            812, 815 (1962).
 
            
 
                 Claimant has proven, by a preponderance of the 
 
            evidence, that he sustained temporary injuries in the nature 
 
            of burns and an aggravation of his preexisting back 
 
            condition.  The best evidence in the record comes from Dr. 
 
            Palmer who released claimant to return to work effective May 
 
            4, 1987 and who subsequently reported that the back injury 
 
            had not caused any permanent worsening of the claimant's 
 
            back condition.  Dr. Palmer's assessment is corroborated by 
 
            the orthopaedic surgeon, Dr. Bickel.  There is no evidence 
 
            to indicate that the burns caused any permanent disability.  
 
            It is therefore concluded that the claimant is entitled to 
 
            recover temporary total disability compensation commencing 
 
            April 11, 1987 and running through May 3, 1987, a span of 
 
            three and two-sevenths weeks.  According to paragraph 10 of 
 
            the prehearing report, claimant has been previously paid all 
 
            weekly compensation due for that period of time.
 
            
 
                 The employer is responsible for payment of the medical 
 
            expenses incurred in treating the April 11, 1987 injury.  
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            The expenses which were proximately caused by that injury 
 
            are the charges with Palmer Clinic incurred on the dates of 
 
            April 13, 15, 17, 20 and 27, 1987.  Those charges total 
 
            $116.60.  The employer is entitled to credit for the amount 
 
            paid through its nonoccupational group plan which John Toben 
 
            described as providing first dollar coverage.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that claimant take nothing from 
 
            this proceeding as he has previously been paid all weekly 
 
            compensation and all benefits under section 85.27 of The 
 
            Code to which he is entitled.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this proceeding 
 
            are assessed against the claimant pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Jerry Zimmerman
 
            Attorney at Law
 
            129 First Avenue SW
 
            P.O. Box 74210
 
            Cedar Rapids, Iowa  52407
 
            
 
            Mr. John M. Bickel
 
            Attorney at Law
 
            500 MNB Building
 
            P.O. Box 2107
 
            Cedar Rapids, Iowa  52406-2107
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1402.40
 
                           Filed March 26, 1991
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            MICHAEL G. HAIN,    :
 
                      :
 
                 Claimant, :
 
                      :         File No. 850475
 
            vs.       :
 
                      :      A R B I T R A T I O N
 
            GRAIN PROCESSING CORPORATION, :
 
                      :         D E C I S I O N
 
                 Employer, :
 
                      :
 
            and       :
 
                      :
 
            CIGNA INSURANCE,    :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            5-1402.40
 
            Claimant, with preexisting back condition, failed to prove 
 
            that the injury was anything other than a temporary 
 
            aggravation.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GLORIA BUMPUS,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 850493
 
                                          :
 
            DES MOINES PUBLIC SCHOOLS,    :           A P P E A L
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                 The record, including the transcript of the hearing 
 
            before the deputy and all exhibits admitted into the record, 
 
            has been reviewed de novo on appeal.  The decision of the 
 
            deputy filed April 18, 1990, is affirmed and is adopted as 
 
            the final agency action in this case, with the following 
 
            additional analysis:
 
            
 
                 On page 9 of the Arbitration Decision, the deputy 
 
            identifies Michael J. Taylor, M.D., as the individual who 
 
            performed a psychological assessment of claimant.  This is 
 
            apparently a mere scrivener's error in that the deputy, at 
 
            page 5 of the Arbitration Decision, properly identifies 
 
            Samuel L. Graham, Ph.D., as having performed such 
 
            psychological assessment.  The record by way of the 
 
            letterhead on Dr. Graham's report reflects that Dr. Graham 
 
            is an associate of Dr. Taylor.
 
            
 
                 On appeal, claimant contends that the deputy's finding 
 
            that claimant lacked motivation is not supported by the 
 
            record.  We disagree.  The record is replete with instances 
 
            where attempts were made to assist claimant, both towards 
 
            further physical rehabilitation and towards finding 
 
            appropriate employment.  The record is also replete with 
 
            instances where claimant self-selected not to pursue options 
 
            presented for reasons either not related to her work injury 
 
            or only subjectively related to her work injury.  Claimant 
 
            chose not to pursue a pain management program through the 
 
            Iowa Methodist Pain Center.  Claimant chose not to accept 
 
            employment as a lunch room associate, indicating that the 
 
            hours, approximately 10 per week, were too few for her.  
 
            Claimant chose not to accept employment as a volunteer 
 
            transfer associate, indicating that she did not wish to be 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            employed outside in the winter.  Claimant subjectively 
 
            decided that she could not accept the associate's position 
 
            working with kindergartners and first graders.  Objective 
 
            medical evidence suggests that claimant might well have been 
 
            able to return to work in such a position.  Likewise, 
 
            defendants' answers to interrogatories state that the school 
 
            district regards the position of educational associate to be 
 
            primarily a sedentary position with infrequent lifting.  
 
            Such would appear consistent with the type of job duties 
 
            that claimant described and that Mr. Ruths described.  
 
            Claimant, in her deposition, at hearing, and in her 
 
            conversations with Mr. Ruths, stated she preferred to work 
 
            part time.  In her deposition, she stated she preferred 
 
            staying at McDonald's part time to returning to the school 
 
            district.  All the above demonstrates that claimant has 
 
            minimal desire to continue in a wage earning capacity at 
 
            this point in her life.  It is clearly indicative of a lack 
 
            of motivation to fully rehabilitate and seek full-time 
 
            gainful employment.
 
            
 
                 Likewise, claimant argues that claimant's restrictions 
 
            would "place upon this worker an industrial disability far 
 
            in excess of 5 percent."  We again disagree.  Claimant's 
 
            restrictions do not remove her from a sedentary work 
 
            classification.  Claimant's previous work experience has 
 
            largely been in nonheavy industrial positions.  It appears 
 
            claimant has transferrable skills which she could readily 
 
            utilize within her restrictions.  Likewise, claimant's age 
 
            of itself has bearing on her actual earning capacity.  
 
            Clearly, earning capacity is reduced with the approach of 
 
            the end of the normal span of an individual's employment 
 
            life.  Claimant, who was age 65 at hearing and who had 
 
            voluntarily retired from her McDonald's position immediately 
 
            subsequent to her 65th birthday, was clearly at an age where 
 
            her earning capacity was naturally reduced from that of a 
 
            younger worker.  The deputy's award of five percent 
 
            permanent partial disability was appropriate.
 
            
 
                 Claimant shall pay the costs of the appeal, including 
 
            the preparation of the hearing transcript.
 
            
 
                 Signed and filed this ____ day of December, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. David D. Drake
 
            Attorney at Law
 
            West Towers Office Complex
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            1200 35th Street, Suite 500
 
            W. Des Moines, Iowa  50265
 
            
 
            Ms. Elizabeth Gregg Kennedy
 
            Attorney at Law
 
            100 Court Avenue, Suite 600
 
            Des Moines, Iowa  50309-2231
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               9999
 
                                               Filed December 16, 1991
 
                                               BYRON K. ORTON
 
                                               BJO
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GLORIA BUMPUS,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 850493
 
                                          :
 
            DES MOINES PUBLIC SCHOOLS,    :           A P P E A L
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            9999
 
            Summary affirmance of deputy's decision filed April 18, 
 
            1990, with short additional analysis.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GLORIA BUMPUS,                :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 850493
 
            vs.                           :
 
                                          :
 
            DES MOINES PUBLIC SCHOOLS,    :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                   INTRODUCTION
 
            
 
                 This is a proceeding in arbitration brought by the 
 
            claimant, Gloria Bumpus, against Des Moines Public Schools, 
 
            employer, and Employers Mutual Insurance Companies, 
 
            insurance carrier, defendants, to recover benefits as a 
 
            result of an alleged injury sustained on March 30, 1987.  
 
            This matter came on for hearing before the deputy industrial 
 
            commissioner in Des Moines, on March 14, 1990.  The record 
 
            consists of the testimony of the claimant and Robert J. 
 
            Ruths; and Joint Exhibits A through I and 1 through 6.
 
            
 
                                      issues
 
            
 
                 The issues the parties set out in the prehearing report 
 
            for resolution are:
 
            
 
                 1.  Whether claimant's alleged disability is causally 
 
            connected to her injury; and
 
            
 
                 2.  The nature and extent of claimant's disability.
 
            
 
                              review of the evidence
 
            
 
                 Claimant testified she is a 65-year-old high school 
 
            graduate and her only other formal education was taking a 
 
            typing course and receiving a certificate from DMACC in 
 
            1988.  Claimant related her work history as basically 
 
            involving working two years as a welder at Solar Aircraft in 
 
            1945, as a nurse's aide, as a helper in a mental ward, 
 
            delivering for Younkers, dormitory maid for Drake, 
 
            department store elevator operator, working at Joseph's 
 
            Jewelry, salad maker at Wakonda Country Club and Bishops, 
 
            working for the Department of Public Safety, and a Blue 
 
            Cross claims examiner.  In 1972, claimant began as an 
 
            associate employee in the Des Moines Public Schools assigned 
 
            to the classroom, lunchroom, grounds and hall duty until 
 
            1989.  It is not necessary to elaborate further on the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            particular duties claimant performed.
 
            
 
                 On March 30, 1987, claimant was rear-ended by a car 
 
            while she was driving her automobile and taking two special 
 
            education students on a field trip on behalf of defendant 
 
            employer.
 
            
 
                 Claimant described the pain that developed that evening 
 
            and the medical attention she sought.  Claimant was off work 
 
            until August 27, 1987.  Claimant said she continued to have 
 
            pain when she returned to work at the end of August 1987.  
 
            Claimant then worked until the end of November 1987 and has 
 
            not returned to work for defendant employer since that time.
 
            
 
                 Claimant said she wanted to work again for defendant 
 
            employer but could not because of the lifting and bending 
 
            involved.  Claimant related she took a typing test for a 
 
            school job and did lousy.  Claimant said she then took a 
 
            typing course at DMACC.  Claimant said she then inquired 
 
            again at defendant employer's and there was no position 
 
            available.  Claimant acknowledged she was offered a 
 
            part-time lunchroom job but refused because of lack of 
 
            hours.  Claimant also indicated she was offered another 
 
            associate job at another school and was given a chance to 
 
            observe it to see if she could perform the job.  Claimant 
 
            said she observed one class and concluded it involved the 
 
            same type of work she was not able to do.  Claimant 
 
            indicated this job involved lifting and bending, also.
 
            
 
                 Claimant said there was discussion by the school 
 
            administrator as to claimant's volunteering and then later 
 
            getting the job she wanted.  Claimant emphasized she needed 
 
            the money then and could not work on a voluntary basis.  
 
            Claimant denied she then told the school administrator she 
 
            planned to retire in 1987 or 1989.  Claimant related she 
 
            then took a typing test upon applying for a Des Moines 
 
            Register job.  Claimant said she did not pass.  Claimant 
 
            described the jobs she applied for and was finally hired in 
 
            December 1988 at Mercy Hospital's McDonalds restaurant, 
 
            working five days a week 10:30 a.m. to
 
            4:00 p.m.  Claimant contends she got tired after two and 
 
            one-half hours of work and her neck and shoulder began 
 
            bothering her.  Claimant said she cut back her hours in 
 
            February 1990 to three days a week.  Claimant said she still 
 
            has therapy treatments and sees her doctor on a as-needed 
 
            basis.  Claimant emphasized she never had neck or shoulder 
 
            problems or has she had any accidents prior to March 30, 
 
            1987.  Claimant did acknowledge she had low back muscle 
 
            strain in February 1983 at school but missed no work.  She 
 
            also received a burn at McDonalds and missed two days and 
 
            received workers' compensation for the lost days.
 
            
 
                 Claimant said she currently cannot raise her arms above 
 
            her shoulders without hurting, cannot carry a phone book, a 
 
            bag of groceries, has trouble balancing, does not sleep well 
 
            and gets tired walking.  Claimant said her examination with 
 
            David J. Boarini, M.D., took 30 seconds.  She said he didn't 
 
            examine her like the other doctors did.  Claimant admitted 
 
            she voluntarily quit her McDonalds job in February 1990.  
 
            Claimant acknowledged she refused to consider the pain 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            center and said she will deal with the pain herself.  
 
            Claimant admitted no doctor put restrictions on her and no 
 
            doctor said she could not work full-time.
 
            
 
                 Robert J. Ruths, personnel specialist with the Des 
 
            Moines Public Schools, testified he is involved with 
 
            workers' compensation claims and transferring people due to 
 
            physical need.  He said he knew claimant and had his first 
 
            conversation with her in the fall of 1987 concerning 
 
            returning to the job full-time and having therapy upon 
 
            returning.  Ruths testified to and read Joint Exhibit 1, 
 
            page 7, which is in his handwriting on August 7, 1989.  He 
 
            said claimant indicated she planned to retire at the end of 
 
            the year.  Ruths testified claimant and her husband came to 
 
            see him at the beginning of the 1988-89 school year as to a 
 
            part-time job.  He said claimant indicated she wanted to 
 
            work the next school year and not beyond it.  Ruths 
 
            emphasized he found claimant an associate position which 
 
            involved no typing and very little lifting and bending and 
 
            which paid $6.64 per hour.  He related claimant met and 
 
            observed the job and said it involved too much lifting and 
 
            bending.  Ruths agreed the Jefferson School job that 
 
            claimant observed and refused to take did require stooping 
 
            and bending.
 
            
 
                 Greg L. Smith, M.D., has treated claimant since her 
 
            March 30, 1987 accident.  On December 15, 1987, he wrote:
 
            
 
                    Unfortunately, she developed difficulties with 
 
                 her cervical strain problem while returning to 
 
                 employment and therefore, felt that it was better 
 
                 to have a failed attempt rather than continue on 
 
                 and injure herself further with working.
 
            
 
                    I would like to point out, however, that very 
 
                 little in the way of physical findings are present 
 
                 when she is having her discomfort and therefore, 
 
                 actual physical examination may never actually 
 
                 point out significant difficulties at that time.
 
            
 
            (Joint Medical Exhibit 1, page 17)
 
            
 
                 On June 13, 1988, Dr. Smith wrote:
 
            
 
                    It is my feeling, therefore, that management of 
 
                 her difficulties through a pain management center 
 
                 and other such measures is probably worthwhile but 
 
                 I feel that she probably has attained maximal 
 
                 benefit from physical therapy and other such 
 
                 measures.
 
            
 
                    It is therefore my opinion that Gloria should
 
            be restricted from heavy lifting and lifting of
 
            greater than 25 pounds weight.  She additionally, 
 
            should be restricted from lifting any weight in a 
 
            repititive [sic] fashion.  Further, she should be 
 
            restricted from frequent bending, stooping or 
 
            other such activities.  These restrictions should 
 
            be considered permanent.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            (Jt. Med. Ex. 1, p. 15)
 
            
 
                 On February 8, 1988, the x-ray reports of claimant 
 
            shows:
 
            
 
                 2/8/88 CERVICAL SPINE:
 
            
 
                 Moderately severe degenerative arthritis and 
 
                 degenerative disc disease are present throughout 
 
                 the neck.  The third through the seventh 
 
                 interspaces are narrowed and hypertrophic spurs 
 
                 have developed at all levels.
 
            
 
            (Jt. Med. Ex. 1, p. 47)
 
            
 
                 On February 19, 1988, David J. Boarini, M.D., an 
 
            orthopedic surgeon, wrote:
 
            
 
                       This patient has severe cervical spondylosis 
 
                 that has been aggravated by an automobile 
 
                 accident.  I recommended she continue her 
 
                 anti-inflammatory treatment.  I think she should 
 
                 start getting involved in a vigorous work 
 
                 hardening program at Lutheran.  She's certainly 
 
                 going to have some continued aches and pains in 
 
                 her neck permanently due to her underlying 
 
                 condition but hopefully we can get her feeling 
 
                 well enough to return to normal activities with a 
 
                 bit more therapy.
 
            
 
            (Jt. Med. Ex. 1, p. 45)
 
            
 
                 Thomas W. Bower, L.P.T., wrote on February 24, 1988:
 
            
 
                 Discussion:  On the basis of our findings today, 
 
                 we do feel the patient has an extremely poor 
 
                 correlation in perception of her pain rating as 
 
                 opposed to the observed behavior by this examiner.  
 
                 This is further substantiated by a relatively high 
 
                 degree of probability that there is a 
 
                 psychological component to the patient's pain 
 
                 complaints.  Body mechanics were really not 
 
                 adequately assessed because the patient performed 
 
                 virtually no work during the course of the exam.  
 
                 At this time, the patient's physical demand level 
 
                 would be certainly classified in the sedentary 
 
                 level.  We do not feel that the entire test is 
 
                 valid at this point based on the potential and 
 
                 inadequate pain perception of the patient.
 
            
 
            (Jt. Med. Ex. 1, p. 38)
 
            
 
                 Samuel L. Graham, Ph.D., wrote on April 6, 1988:
 
            
 
                    As a part of the evaluation, Mrs. Bumpus was 
 
                 administered the Minnesota Multiphasic Personality 
 
                 Inventory.  The pattern of validity scales 
 
                 produced by her responses is a marked V, which is 
 
                 suggestive of a naive, religious, and excessively 
 
                 rigid individual who strongly avoids the 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 suggestion of psychological components or 
 
                 discomfort in any current problems.  The denial 
 
                 and repression appear to be so strong that 
 
                 interpretation of the clinical portion of the MMPI 
 
                 would be inappropriate.
 
            
 
                    Mrs. Bumpus appears to be a frail, 
 
                 highly-guarded, and rigid individual who would 
 
                 likely have significant difficulty adjusting in 
 
                 any group programs.  In view of her current 
 
                 personality status, I feel it is highly unlikely 
 
                 that she would benefit from the typical Work 
 
                 Hardening Program.  As the patient clearly 
 
                 acknowledges that emotional upset increases her 
 
                 experience of pain, she would appear to be a 
 
                 reasonable candidate for an individual pain 
 
                 management program which could be approached with 
 
                 concurrent individual physical therapy.  For 
 
                 physical therapy to be of assistance, I feel it 
 
                 would have to be individual and intensive, and 
 
                 carried out with much higher rates of 
 
                 encouragement and support than are required by the 
 
                 average patient.
 
            
 
            (Jt. Med. Ex. 1, pp. 35-36)
 
            
 
                 On May 24, 1988, Dr. Borarini wrote:
 
            
 
                    In response to your letter on Gloria Geneva 
 
                 Bumpus, I think in light of both my examination 
 
                 and her functional capacity evaluation and 
 
                 psychological evaluation, that there is no reason 
 
                 why the patient can't return to her previous job.  
 
                 Clearly her pain has a large functional component.  
 
                 I think anti-inflammatory medicines and some sort 
 
                 of an individual pain management program as 
 
                 suggested by the psychologist would be 
 
                 appropriate.  I think return to teaching with no 
 
                 heavy duties until this is completed would 
 
                 certainly be reasonable.
 
            
 
            (Jt. Med. Ex. 1, p. 44)
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
                 On June 6, 1988, Dr. Boarini wrote:
 
            
 
                    In response to your letter on Gloria Bumpus, I 
 
                 would not expect her to have any permanent 
 
                 functional impairment as a result of her injury in 
 
                 March of 1987.
 
            
 
            (Jt. Ex. 1, p. 43)
 
            
 
                 J. Dan Smeltzer, M.A., Sociologist, wrote on June 30, 
 
            1988:
 
            
 
                    I am writing to update you on the status of 
 
                 your patient, Mrs. Gloria Bumpus.  As you know, we 
 
                 evaluated Mrs. Bumpus on June 16, 1988.  At that 
 
                 time, we felt like she was appropriate for the 
 
                 four-week pain rehabilitation program.  Mrs. 
 
                 Bumpus was given the Iowa Methodist Pain 
 
                 Assessment Questionnaire and the MMPI to complete 
 
                 at home and return as soon as possible.  She and 
 
                 her husband appeared at the Center on Wednesday, 
 
                 the 29th, and she returned both documents 
 
                 uncompleted.  She indicated to me that she is at 
 
                 this time declining any treatment recommendations 
 
                 offered by us.  I indicated to her if at some 
 
                 point in the future she or you feel we could help 
 
                 in some way, we would be glad to reevaluate her.
 
            
 
            (Jt. Med. Ex. 1, p. 31)
 
            
 
                 There are physical therapy treatment records on 
 
            claimant beginning April 6, 1987 to approximately February 
 
            10, 1989.
 
            
 
                 On February 17, 1989, Rick Peterson wrote:
 
            
 
                    Gloria was seen as requested for treatment to 
 
                 the cervical area.  On the date of last treatment 
 
                 which was 2-10-89, patient stated that she was 
 
                 continuing to feel about the same but feels that 
 
                 the treatments are of some benefit.  Patient has 
 
                 not returned for any additional treatment since 
 
                 that time and further Physical Therapy will be 
 
                 discontinued.  If we can be of any further 
 
                 assistance to you or your patients, please let me 
 
                 know.  Thank you for this referral.
 
            
 
            (Jt. Med. Ex. 1, p. 57)
 
            
 
                           applicable law and analysis
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of March 30, 
 
            1987 is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 The Iowa Supreme Court cites, apparently with approval, 
 
            the C.J.S. statement that the aggravation should be material 
 
            if it is to be compensable.  Yeager v. Firestone Tire & 
 
            Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. 
 
            Workmen's Compensation sec. 555(17)a.
 
            
 
                 Our supreme court has stated many times that a claimant 
 
            may recover for a work connected aggravation of a 
 
            preexisting condition.  Almquist v. Shenandoah Nurseries, 
 
            218 Iowa 724, 254 N.W. 35 (1934).  See also Auxier v. 
 
            Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek 
 
            v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz 
 
            v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. 
 
            Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
            (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299; Ziegler v. 
 
            United States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 
 
            (1960).
 
            
 
                 An employer takes an employee subject to any active or 
 
            dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler, 252 Iowa 613, 
 
            620, 106 N.W.2d 591, and cases cited.
 
            
 
                 An employee is not entitled to recover for the results 
 
            of a preexisting injury or disease but can recover for an 
 
            aggravation thereof which resulted in the disability found 
 
            to exist.  Olson, 255 Iowa 1112, 125 N.W.2d 251; Yeager, 253 
 
            Iowa 369, 112 N.W.2d 299; Ziegler, 252 Iowa 613, 106 N.W.2d 
 
            591.  See also Barz, 257 Iowa 508, 133 N.W.2d 704; Almquist, 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            218 Iowa 724, 254 N.W. 35.
 
            
 
                 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."
 
            
 
                 Claimant is 65 years old.  She quit her job at 
 
            McDonalds in February 1990.  Defendants contend claimant 
 
            indicated to the personnel administrator that she was going 
 
            to retire at the end of 1987 and then later indicated she 
 
            would retire at the end of the 1988-89 school year.  
 
            Claimant denied she indicated this.  It appears the notation 
 
            by Robert Ruths was made accurately and contemporaneously to 
 
            the time he had a conversation with claimant, the first 
 
            conversation being in August 1987.  His notes indicate 
 
            claimant intended to retire in 1987, and in a later 
 
            conversation at the end of the 1988-89 school year.
 
            
 
                 There is no dispute that claimant was injured on the 
 
            job as she described.  The parties stipulated claimant was 
 
            off work for a healing period beginning March 30, 1987 to 
 
            and including August 27, 1987 and December 1, 1987 to and 
 
            including July 1, 1988, totaling 51.857 weeks.  Claimant 
 
            contends she has a permanent disability and defendants deny 
 
            this and say there is no causal connection of any permanent 
 
            disability to her March 30, 1987 injury.
 
            
 
                 In reviewing the medical evidence, there is no 
 
            permanent impairment rating by any doctor.  Dr. Smith, 
 
            claimant's regular treating doctor, imposed permanent 
 
            restrictions in June 1988 of no heavy lifting and no lifting 
 
            of greater than 25 pounds.  He restricted her from lifting 
 
            any weight in a repetitive manner and no frequent bending, 
 
            stooping or other such activities (Jt. Med. 1, p. 15).  The 
 
            x-rays taken in February 1988 show moderate, severe, 
 
            degenerative arthritis and disc disease throughout the neck.  
 
            Degenerative arthritis isn't caused by an accident, but it 
 
            is a well-known fact that the symptoms may surface after a 
 
            traumatic event like a car accident.  The evidence shows 
 
            claimant had no neck or back problems prior to March 30, 
 
            1987.  The employer takes claimant as she is.  The question 
 
            arises, did the March 30, 1987 accident materially worsen, 
 
            lighten up and aggravated a preexisting condition?  The 
 
            undersigned finds the greater weight of evidence shows that 
 
            the answer to this question is yes.
 
            
 
                 There is a disturbing element running through the 
 
            medical evidence.  Claimant has seemed to refuse work 
 
            hardening or pain management treatment.  She admitted she 
 
            refused to consider the pain center, insisting she would 
 
            deal with the pain herself.  Her doctor, Dr. Smith, 
 
            recommended in June 1988 that claimant should manage her 
 
            pain through a pain management center (Jt. Med. Ex. 1, p. 
 
            45).
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
                 In February 1988, Dr. Boarini recommended claimant 
 
            should start getting involved in a vigorous work hardening 
 
            program at Lutheran Hospital.  Dr. Boarini indicated 
 
            claimant's aches and pains would be permanent but he felt 
 
            therapy would get claimant back to normal activity (Jt. Med. 
 
            Ex. 1, p. 45).
 
            
 
                 Mr. Bower observed a psychopathic component to 
 
            claimant's pain complaints.
 
            
 
                 Michael J. Taylor, M.D., who performed a psychological 
 
            assessment on claimant, questions claimant's current 
 
            personality status which affected the interpretation of the 
 
            clinic portion of the MMPI test.  He suggested the pain 
 
            management program rather than work hardening.
 
            
 
                 Don Smeltzer, a sociologist at the Iowa Methodist 
 
            Medical Center, reported in June 1988 that claimant returned 
 
            her pain assessment questionnaire and the MMPI test to them 
 
            uncompleted and declined treatment.  It appears that 
 
            defendant employer was going to pay for this program.  It 
 
            appears there was never a dispute as to defendant employer's 
 
            paying for services recommended by the doctors to help 
 
            claimant.
 
            
 
                 It appears claimant did not return for any further 
 
            physical therapy treatments after February 10, 1989, so they 
 
            were discontinued.  Again, it appears claimant made the 
 
            decision, not the defendants, who were paying for the 
 
            treatments.
 
            
 
                 There is no medical evidence indicating claimant cannot 
 
            return to work.  She obviously is to avoid heavy duties.  It 
 
            appears defendant employer tried to work with claimant.  
 
            They are to be congratulated for their efforts.  Claimant 
 
            appears to have  substantial lack of motivation.  She has 
 
            reached age 65, at which time she was intending to retire, 
 
            at least from full-time work.  Although no permanent 
 
            impairment rating has been given, claimant does have a 
 
            prexisting condition which was activated and aggravated by 
 
            the March 30, 1987 accident.
 
            
 
                 Although the undersigned believes claimant was going to 
 
            retire from full-time duty at age 65, it doesn't appear she 
 
            was necessarily going to cease working entirely on a 
 
            part-time basis, at least that was a viable option to her.  
 
            Her March 30, 1987 accident appears to have affected 
 
            claimant's earning capacity by limiting her ability to do 
 
            part-time work for which she was accustomed and suited 
 
            considering her skills, her lack of skills, age, injury, 
 
            education and other criteria used to determine her loss of 
 
            earning capacity.  The undersigned finds claimant has a 5 
 
            percent reduction in earning capacity which was caused by 
 
            her March 30, 1987 work injury resulting from a car 
 
            accident.
 
            
 
                                 findings of fact
 
            
 
                 1.  Claimant received a work injury on March 30, 1987 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            as a result of an automobile accident.
 
            
 
                 2.  Claimant has a cervical spondylolysis that has been 
 
            materially aggravated, worsened and lighted up by her March 
 
            30, 1987 work injury.
 
            
 
                 3.  Claimant has a preexisting moderately severe 
 
            degenerative arthritis and disc disease throughout the neck 
 
            that has been materially aggravated, worsened and lighted up 
 
            as a result of her March 30, 1987 work injury.
 
            
 
                 4.  Claimant refused pain management treatment or a 
 
            work hardening program, as recommended by medical personnel.
 
            
 
                 5.  Claimant planned to retire from full-time 
 
            employment at least by age 65.  Claimant was 65 on February 
 
            25, 1990.
 
            
 
                 6.  Claimant lacks motivation.
 
            
 
                 7.  Defendant employer made good faith attempts to 
 
            accommodate claimant and her restrictions as a result of the 
 
            work-related March 30, 1987 injury.
 
            
 
                 8.  Claimant has permanent work restrictions, namely, 
 
            no heavy lifting or lifting more than 25 pounds; no lifting 
 
            any weight on a repetitive basis; and no frequent bending, 
 
            stooping or other such activities.  These restrictions are 
 
            the result of the material aggravation of claimant's 
 
            preexisting degenerative disc and cervical spondylolysis 
 
            brought about by the work-related March 30, 1987 injury.
 
            
 
                 9.  Claimant has a 5 percent loss of earning capacity.
 
            
 
                                conclusions of law
 
            
 
                 Claimant's March 30, 1987 injury arose out of and in 
 
            the course of her employment.
 
            
 
                 Claimant lacks motivation.
 
            
 
                 Claimant has a preexisting cervical spondylolysis and 
 
            moderately severe degenerative arthritis and disc disease 
 
            throughout the neck that was materially aggravated, worsened 
 
            and lighted up by her March 30, 1987 work injury.
 
            
 
                 Claimant has a 5 percent industrial disability.
 
            
 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant is entitled to twenty-five (25) weeks of 
 
            permanent partial disability benefits at the weekly rate of 
 
            one hundred twenty-four and 94/100 dollars ($124.94) 
 
            beginning July 2, 1988.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  Defendants have paid all 
 
            the healing period benefits agreed to by the parties.  No 
 
            permanent disability benefits have been 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, 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to Division of Industrial Services Rule 343-3.1.
 
            
 
                 Signed and filed this _____ day of April, 1990.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr David D Drake
 
            Attorney at Law
 
            West Towers Office
 
            1200 35th St  Ste 500
 
            West Des Moines IA 50265
 
            
 
            Ms Elizabeth Gregg Kennedy
 
            Attorney at Law
 
            100 Court Ave
 
            Des Moines IA 50309
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1803
 
                                          Filed April 18, 1990
 
                                          Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GLORIA BUMPUS,                :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 850493
 
            vs.                           :
 
                                          :
 
            DES MOINES PUBLIC SCHOOLS,    :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant awarded 25% industrial disability.
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARY A. JONES,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 850648
 
            3 M COMPANY,                  :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            NORTHWESTERN NATIONAL         :
 
            INSURANCE COMPANY,            :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                 
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Mary A. 
 
            Jones, (claimant) commenced with the filing of a petition on 
 
            December 28, 1988 against 3 M Company, (3 M) employer for 
 
            worker's compensation benefits as a result of an alleged 
 
            injury to Claimant's back occurring on April 17, 1987.  On 
 
            October 17, 1990, the matter came on for hearing in Des 
 
            Moines, Iowa.  The parties appeared as follows:  the 
 
            claimant in person and by her counsel Harold Heslinga of 
 
            Ottumwa, Iowa and 3 M and Northwestern National Insurance 
 
            Company, (Northwestern) by their counsel Joseph A. Quinn of 
 
            Des Moines, Iowa.  
 
            
 
                 The record consisted of the live testimony of the 
 
            claimant, Connie Husted, Human Resources Coordinator for 3 
 
            M, and Jack Reynolds, a Vocational Rehabilitation Counselor.  
 
            Additionally the parties offered Joint Exhibits 1 through 
 
            38.  3 M offered a separate exhibit, Exhibit A.  Both 
 
            parties submitted briefs.  At the close of all evidence, the 
 
            case was deemed fully submitted.
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the prehearing report filed by the parties 
 
            and approved at the time of hearing, the following issues 
 
            are presented for resolution:
 
            
 
                 1.  Whether the injury sustained on April 17, 1987 is 
 
            the cause of a permanent disability.
 
            
 
                 2.  What is the extent of claimant's entitlement to 
 
            weekly benefits in the event permanency is found.
 
            
 
                                 FINDINGS OF FACT
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 After considering all of the evidence and the arguments 
 
            of counsel, the undersigned makes the following findings of 
 
            fact and conclusions of law.
 
            
 
                 1.  Claimant was 48 years old at the time of the 
 
            hearing.  She was approximately 45 years old at the time of 
 
            her injury.  Claimant began the 9th grade but she did not 
 
            finish.  She does not have a high school equivalency 
 
            certificate.  
 
            
 
                 2.  Claimant has been married for  35 years.  
 
            Claimant's husband is employed at 3 M as a printer.  
 
            Claimant and her husband have two sons, one living in 
 
            Colorado and one living at home.  The son at home was 
 
            severely injured in an automobile accident in January of 
 
            1988 result of that accident Claimant's son is mildly 
 
            retarded and receives Social Security disability benefits.  
 
            He suffers from confusion and short term memory loss.  He is 
 
            capable of caring for himself but he cannot be left alone 
 
            for any length of time.
 
            
 
                 3.  Claimant began working outside the home when her 
 
            youngest child turned 5.  She has been employed as a 
 
            waitress, and a sewing machine operator during the first 10 
 
            to 11 years of her working life.  Her job duties in these 
 
            capacities included the operation of a cash register, 
 
            waiting on tables, clean up and the operation of a sewing 
 
            machine.  Claimant is somewhat deficient in her math 
 
            abilities.  She was employed by 3 M for nine years until her 
 
            injury on April 17, 1987.
 
            
 
                 4.  Claimant was a tape packer at 3 M.  She was 
 
            responsible for operating an automatic tape packing machine.  
 
            This machine automatically wrapped various sizes of rolls of 
 
            tape for final packing in a box for shipment.  Claimant's 
 
            job duties included placing the various rolls of tape on the 
 
            machine for wrapping, switching the feeder plate for the 
 
            machine to accommodate various sizes of tape rolls and 
 
            lifting a full box of tape off the conveyor belt after the 
 
            box had been filled and sealed.  The feeder plate weighed 
 
            more than 50 pounds and generally required two persons to 
 
            lift and change the plate.  The plates were stored on a 
 
            shelf approximately 30 to 40 feet away from Claimant's work 
 
            station.  During a "changeover" Claimant and a coworker were 
 
            required to change the feeder plate to accommodate the next 
 
            size of tape they were going to pack.  Claimant found that 
 
            she could lift the plate by herself and did so on numerous 
 
            occasions when her coworker was unavailable to assist in the 
 
            changeover.  3 M also made available rolling garbage cans 
 
            for workers to use to transfer the feeder plates from the 
 
            shelves to the tape packing machine.
 
            
 
                 5.  During a changeover on April 17, 1987, claimant was 
 
            in the process of carrying a feeder plate over to the 
 
            storage shelf when, halfway there, she heard a pop in her 
 
            back.  She dropped the feeder plate as she felt pain in her 
 
            back and her legs felt like rubber.  Claimant finished her 
 
            shift but she did not report the injury to her supervisor.  
 
            He was not in the plant.  Claimant reported the incident a 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            few days later.
 
            
 
                 6.  Claimant consulted with chiropractor Dr. B.D. Lange 
 
            between April 21 and May, 8 1987.  Claimant discontinued her 
 
            treatments with Dr. Lange on or about May 4, 1987.  Dr. 
 
            Lange released claimant for light work on May 4, 1987.  
 
            Simultaneously, Claimant consulted with Bernard C. Hillyer, 
 
            M.D., at the Mater Clinic in Knoxville.  During her first 
 
            visit on April 22, 1987, she complained of a sore back from 
 
            the incident at work.  Dr. Hillyer found that she had spasms 
 
            and tenderness in the lumbosacral musculature and mild 
 
            scoliosis.  Additionally, he found degenerative changes in 
 
            claimant's back.
 
            
 
                 7.  Claimant's credibility has been tarnished somewhat 
 
            because of the inconsistent histories she gave various 
 
            treating physicians.  Claimant had previous back problems 
 
            resulting from an injury to her hip in 1986 that she failed 
 
            to disclose to Dr. Bashara in 1987.  She had been seen by 
 
            Joseph F. Fellows, M.D., on October 31, 1986 in connection 
 
            with hip pain and pain in her lower back.  Dr. Fellows 
 
            concluded that claimant was suffering from tendonitis and 
 
            bursitis of the right iliac crest of the right hip.  
 
            Claimant was seen at the Mater Clinic in Knoxville in 
 
            December of 1986 complaining of hip, back and leg pains.  
 
            She indicated to the treating physician during that visit 
 
            that, "She has had this [back pain and bilateral hip pain] 
 
            off and on for a number of years.  [The pain is] Worse with 
 
            bending and stooping, worse after working and worse after 
 
            walking for long periods."  She also reported, upon 
 
            admission to the Knoxville Community Hospital in May of 1987 
 
            that she had had no previous operations, when in fact she 
 
            had.(1)
 
            
 
                 8.  At the time of the incident in the 3 M plant, 
 
            claimant was under the care of a cardiologist for a heart 
 
            condition.  In 1983, she was diagnosed as suffering from 
 
            ventricular tachycardia with episodes of ventricular 
 
            ectopics from a prolapsed mitral valve.  Her treating 
 
            physician, L. A. Iannone, M.D., gave her a 20 pound weight 
 
            lifting restriction.  The lifting restriction was renewed on 
 
            an annual basis and was in place on the date of claimant's 
 
            injury.  3 M was aware of claimant's lifting restriction.  
 
            As recently as January 1990, claimant was admitted to the 
 
            hospital with an irregular heart beat, and apparently near 
 
            cardiac arrest.
 
            
 
                 9.  On May 8, 1987, claimant was admitted to the 
 
            Knoxville Community Hospital with acute low back pain.  
 
            Claimant had returned to work on light duty.  Apparently, 
 
            she was doing quite a bit of twisting, stooping and bending 
 
            and developed an exacerbation of her back pain.    A CT scan 
 
            performed on May 11, 1987 revealed that, "at L4-5 there was 
 
            minimal diffuse bulging of the disc with this extending to 
 
            the right neural formanina and next to the nerve rootlet . . 
 
            .  No significant abnormality at L5-S1 is apparent."
 
            (1)  Claimant had reported to Dr. Bashara on June 4 1987 that 
 
            she had surgery on her left shoulder in 1959, a hysterectomy 
 
            in 1980, carpal tunnel releases between 1982 and 1983, 
 
            arthroscopy of the left knee in 1984, a left breast biopsy 
 
            in 1986, and a colonoscopy in 1987.
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 10. After her hospital stay, claimant's back was 
 
            improving, however, she was still experiencing pain.  She 
 
            began a course of treatment with various orthopedic 
 
            specialists, including Jerome Bashara, M.D., and Thomas A. 
 
            Carlstrom, M.D.
 
            
 
                 11. Dr. Bashara examined claimant on June 4, 1987.    
 
            Dr. Bashara's review of the May 11, 1987 CT scan differs 
 
            markedly from the radiologist's assessment of claimant's 
 
            disc problem at L4-5 and the assessment by Dr. Carlstrom and 
 
            Dr. Winston.  He indicates that claimant had "marked bulging 
 
            of the L4-5 disc with what appears to be compromise of the 
 
            nerve roots bilaterally.  He noted that claimant had a small 
 
            spinal canal at that level."  Dr. Bashara suggested a lumbar 
 
            myelogram and possible laminectomy as the recommended 
 
            treatment.  Dr. Bashara was the only physician to find a 
 
            bulging disc this early in the course of claimant's back 
 
            problem and because of that inconsistency his opinion will 
 
            be accorded little weight.
 
            
 
                 12. Claimant saw Dr. Carlstrom on July 16, 1987.  After 
 
            his examination, and review of the CT scan obtained on May 
 
            11, 1987, he concluded that "a fair amount of" claimant's 
 
            symptoms were coming from the spinal stenosis at L-4, L-5 
 
            and lesser stenosis at L-5, S-1.  He further indicated that 
 
            claimant was improving and he recommended that claimant 
 
            return to light duty at work.  On the next visit, August 13, 
 
            1987, claimant was not doing well with pain in both legs and 
 
            her back.  Dr. Carlstrom took claimant off work for a month 
 
            and gave her an epidural steroid injection for the pain.
 
            
 
                 13. Dr. Carlstrom indicated in correspondence during 
 
            October and November of 1987 that he had seen claimant on a 
 
            number of occasions and that her back was feeling better.  
 
            He reported that her exams remained largely unchanged.  In 
 
            January 1988, Dr. Carlstrom gave claimant a rating of 
 
            five-seven percent of functional impairment to the body as a 
 
            whole.  He also indicated that the impairment to the 
 
            claimant's back should be considered work related.
 
            
 
                 14. In April of 1988, claimant consulted with S. Randy 
 
            Winston, M.D.  After his examination, a review of the 
 
            medical assessments, an MRI study and a work evaluation, Dr. 
 
            Winston agreed with the prior medical and occupational 
 
            assessments.  The MRI study performed on April 20, 1988, 
 
            indicated that the spinal canal was narrowed and that 
 
            claimant had mild diffuse bulging at L3-4 and L4-5.  
 
            
 
                 15. Claimant was seen for back pain at the Mater Clinic 
 
            for a few days in May of 1988.  The assessment by the 
 
            treating physician was spinal stenosis.  No connection was 
 
            made to the work injury.
 
            
 
                 16. Five months later, on December 13, 1988, claimant 
 
            returned to the Mater Clinic in Knoxville complaining of 
 
            back pain.  She had been Christmas shopping and walking long 
 
            distances.  A CT scan of the lumbar spine was performed on 
 
            December 16, 1988 and showed that claimant had a herniated 
 
            disc.  The radiologist observed that:
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 At L4-5, there is a protrusion of disc material 
 
                 far laterally on the right side near the exit of 
 
                 the neural foramen.  The sections just caudad to 
 
                 the area shows a small bulge of disc material 
 
                 fairly far to the left in the region of the left 
 
                 neural foramen.
 
            
 
                 The cause of the herniation was the extended period of 
 
            walking claimant had engaged in while Christmas shopping.  
 
            Claimant had not been back at work since May of 1987.
 
            
 
                 17. After the herniation, claimant was scheduled for 
 
            surgery on March 2, 1989.  Dr. Carlstrom performed a 
 
            laminectomy on the left at L4-5.
 
            
 
                 18. After the surgery, Dr. Carlstrom advised the 
 
            claimant to avoid standing or sitting in any one position 
 
            for more than one hour at a time.  The claimant was directed 
 
            to avoid stooping, climbing, kneeling and crawling.  
 
            Claimant had a lifting and carrying restriction of 20-25 
 
            pounds.  These restrictions were significantly increased 
 
            over the prior restrictions dating from January 14, 1988.  
 
            Claimant at that time only had a lifting restriction of 
 
            10-15 pounds on a repetitive basis and an absolute lifting 
 
            requirement of 30 to 35 pounds.
 
            
 
                 19. On December 19, 1989, Dr. Carlstrom advised 3 M and 
 
            Northwestern National that claimant had reached maximum 
 
            benefits of healing.  He increased her functional impairment 
 
            by five percent.  Dr. Carlstrom did not indicate that the 
 
            cause of this additional rating was related to the incident 
 
            at work on April 17, 1987 within any degree of medical 
 
            certainty.
 
            
 
                 20. Claimant has several disincentives to return to 
 
            work.  Her son living at home requires constant attention.  
 
            Claimant's husband is fully employed and she benefits from 
 
            his employment.  Claimant has not looked for work since the 
 
            injury at 3 M even though work at reduced pay and benefits 
 
            is available in the Knoxville area.  Moreover, claimant has 
 
            not embarked on any program to improve her chances of 
 
            obtaining new employment.  Claimant has not made any effort 
 
            to obtain her GED or seek new job skills.  Claimant's 
 
            motivation to find work is poor.
 
            
 
                 21. 3 M has no work for claimant to perform.  3 M has 
 
            tried to assist the claimant in returning to work by 
 
            employing a vocational rehabilitation counselor to assist 
 
            claimant in finding a job within her restrictions.  The 
 
            vocational rehabilitation counselor found light duty 
 
            sedentary jobs available for claimant in the Knoxville area 
 
            and the greater Knoxville area.  Additionally, claimant has 
 
            demonstrated a tolerance for light duty sedentary work since 
 
            she can play bingo for up to three hours at a time and 
 
            monitor 10 bingo cards simultaneously.
 
            
 
                 22. Claimant has experienced a loss of earning capacity 
 
            as a result of her injury at 3 M.  The loss of earning 
 
            capacity attributable to the injury on April 17, 1987 is 20 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            percent.
 
            
 
                 23. The rate of weekly benefits payable to claimant is 
 
            $270.51.  Claimant has two exemptions.  The total amount of 
 
            costs taxable in this matter equals $343.45.  All of 
 
            claimant's healing period benefits have been paid.  The 
 
            healing periods were between April 22, 1987 and May 3, 1987, 
 
            May 7, 1987 and January 12, 1988 and March 3, 1989 and 
 
            December 19, 1989.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The primary issue for determination in this matter is 
 
            whether the claimant suffered any permanent disability from 
 
            the injury of April 17, 1987.  The evidence demonstrates 
 
            that she in fact has.  The determination of industrial 
 
            disability is governed by Iowa Code 85.34 (1989).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of April 17, 
 
            1987 is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 133 N.W.2d 867, 
 
            868 (Iowa 1965);  Lindahl v. L. O. Boggs, 18 N.W.2d 
 
            607,613-14 (Iowa 1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 73 N.W.2d 732,738 (Iowa 1955).  The question 
 
            of causal connection is essentially within the domain of 
 
            expert testimony.  Bradshaw v. Iowa Methodist Hospital, 101 
 
            N.W.2d 167,171 (Iowa 1960). Moreover, 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, 76 N.W.2d 756, 760-61 (Iowa 1956).  If 
 
            the claimant had a preexisting condition or disability that 
 
            is aggravated, accelerated, worsened or lighted up so that 
 
            it results in disability, claimant is entitled to recover.  
 
            Nicks v. Davenport Produce Co., 115 N.W.2d 812, 815 (Iowa 
 
            1962).
 
            
 
                 In this instance, the claimant has satisfied her burden 
 
            of proof by demonstrating that she received an injury at 
 
            work that caused a permanent impairment of between five 
 
            percent and seven percent.  But that is all the claimant 
 
            proved.  The balance of her injury and her perceived 
 
            inability to work as a result of the increased functional 
 
            impairment was never linked either by medical testimony or 
 
            other credible nonexpert testimony to the incident at work 
 
            on April 17, 1987.  Claimant had not worked since May of 
 
            1987.  Until claimant walked a long distance while Christmas 
 
            shopping sometime before December 13, 1988, her condition 
 
            was considered stable.  The January 14, 1988 evaluation by 
 
            Dr. Carlstrom and the April 1988 MRI study supports that 
 
            conclusion as does Dr. Winston's assessment in April of 
 
            1988.  The aggravation that led to the laminectomy and the 
 
            increased functional impairment was not caused by a work 
 
            injury.
 
            
 
                 The second issue involves the determination of the 
 
            extent of weekly benefits the claimant is entitled to as a 
 
            result of her injury.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  This is so as impairment and disability are not 
 
            synonymous.  The degree of industrial disability can in fact 
 
            be much different than the degree of impairment because in 
 
            the first instance reference is to loss of earning capacity 
 
            and in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial 
 
            disability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of the total, motivation five percent of the total, 
 
            work experience thirty percent of the total etc.  Neither 
 
            does a rating of functional impairment directly correlate to 
 
            the degree of industrial disability to the body as a whole.  
 
            In other words, there are no formulae which can be applied 
 
            and then added up to determine the degree of industrial 
 
            disability to the body as a whole.  It therefore becomes 
 
            necessary for the deputy or commissioner to draw upon prior 
 
            experience, and general and specialized knowledge to make 
 
            the finding with regard to the degree of industrial 
 
            disability.  See, Peterson v. Truck Haven Cafe, Inc., File 
 
            No. 420539, slip op. at 16-17 (Iowa Ind. Comm'r Appeal Dec. 
 
            February 28, 1985); Christensen v. Hagen, Inc., File No. 
 
            643434, slip op. at 22-23 (Iowa Ind. Comm'r Appeal Dec. 
 
            March 26, 1985)
 
            
 
                 The evidence is uncontroverted that claimant is 48 
 
            years old and has an eighth grade education.  She can no 
 
            longer work at her job at 3 M  because her job no longer 
 
            exists.  Additionally, because of the restrictions claimant 
 
            had as a result of her injury (a repetitive lifting 
 
            restriction of 10 to 15 pounds and an absolute lifting 
 
            restriction of 30 to 35 pounds), claimant experienced a loss 
 
            of earning capacity.  Claimant was earning a base pay of 
 
            $8.29 per hour with fringe benefits which included life 
 
            insurance, health insurance, dental insurance and a stock 
 
            plan during her tenure with 3 M. There is no evidence in the 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            record that reflects the value of the fringe benefits 
 
            however.  Currently, claimant is capable of doing entry 
 
            level, sedentary light duty work but she has no current 
 
            intent to seek work, even though claimant is capable of 
 
            sitting for some length of time and can monitor up to ten 
 
            bingo cards with no apparent difficulty.  Claimant's 
 
            motivation is poor, attributable in part to self imposed 
 
            restrictions rather than restrictions resulting from her 
 
            injury.  Claimant's failure to even look for work in the 
 
            Knoxville area within her restrictions amply demonstrates 
 
            this factor.  Weighing all of these considerations, it is 
 
            the determination of the undersigned that claimant has a 
 
            permanent partial disability in the amount of 20 percent 
 
            attributable to the work injury of April 17, 1987.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 1.  That 3 M and Northwestern National Insurance shall 
 
            pay unto claimant one hundred (100) weeks of permanent 
 
            partial disability benefits at the rate of two hundred and 
 
            seventy and 51/100 dollars beginning December 19, 1989.
 
            
 
                 2..  That 3 M and Northwestern National Insurance shall 
 
            pay the accrued weekly benefits in a lump sum and shall 
 
            receive credit against the award for weekly benefits 
 
            previously paid.
 
            
 
                 3.  That 3 M and Northwestern National Insurance shall 
 
            pay interest on benefits awarded herein as set forth in Iowa 
 
            Code section 85.30 (1989).
 
            
 
                 4.  That 3 M and Northwestern National Insurance shall 
 
            pay the costs of this action pursuant to 343 IAC 4.33.
 
            
 
                 5.  That 3 M and Northwestern National Insurance shall 
 
            file an activity report upon payment of this ward as 
 
            required by this agency pursuant to 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of December, 1990.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          ELIZABETH A. NELSON
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            
 
                 
 
            Copies To:
 
            
 
            Mr Harold B Heslinga
 
            Attorney at Law
 
            118 N Market Street
 
            Oskaloosa IA 52577
 
            
 
            Mr Joseph A Quinn
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            Attorney at Law
 
            1900 Hub Tower
 
            699 Walnut
 
            Des Moines IA 50309
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1803
 
                      Filed December 28, 1990
 
                      ELIZABETH A. NELSON
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            MARY A. JONES, :
 
                      :
 
                 Claimant, :
 
                      :      File No. 850648
 
            vs.       :
 
                      :    A R B I T R A T I O N
 
            3 M COMPANY,   :
 
                      :       D E C I S I O N
 
                 Employer, :
 
                      :
 
            and       :
 
                      :
 
            NORTHWESTERN NATIONAL    :
 
            INSURANCE COMPANY,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant, 48 year old factory worker with a 9th grade 
 
            education had a five to seven percent functional impairment 
 
            rating for a back injury was awarded 20 percent industrial 
 
            disability.  The further aggravation to her back resulting 
 
            in an additional five percent functional impairment rating 
 
            was found not to be casually connected to her work injury.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            EDWIN E. SILVER,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 850694
 
            SULNEL COMPANY,               :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE FARM INSURANCE,         :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Edwin E. 
 
            Silver, claimant, against Sulnel Company, employer 
 
            (hereinafter referred to as Sulnel), and State Farm 
 
            Insurance Company, insurance carrier, defendants, for 
 
            workers' compensation benefits as a result of an alleged 
 
            injury on August 10, 1987.  On August 22, 1990, a hearing 
 
            was held on claimant's petition and the matter was consid
 
            ered fully submitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  Oral testimony and written exhibits were received 
 
            during the hearing from the parties.  The exhibits offered 
 
            into the evidence are listed in the prehearing report.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  An employee-employer relationship existed between 
 
            claimant and Sulnel at the time of the alleged injury.
 
            
 
                 2.  With reference to claimant's rate of weekly compen
 
            sation, claimant was married and entitled to three exemp
 
            tions at the time of the injury.
 
            
 
                 3.  The medical bills requested by claimant were fair 
 
            and reasonable but that the issue of their causal connection 
 
            to a work injury remained in dispute.
 
            
 
                 4.  Claimant has not returned to work since August 10, 
 
            1987.
 
            
 
                                      issues
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                   I.  Whether claimant received an injury arising out 
 
            of and in the course of his employment with Sulnel;
 
            
 
                  II.  The extent of claimant's entitlement to disabil
 
            ity benefits;
 
            
 
                 III.  The extent of claimant's entitlement to medical 
 
            benefits; and,
 
            
 
                  IV.  Claimant's rate of weekly compensation.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the evi
 
            dence, the deputy industrial commissioner finds as follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants place claimant's credibility at issue during the 
 
            hearing as to the nature and extent of the injury and dis
 
            ability.  From his demeanor while testifying, claimant is 
 
            found credible.  Although claimant reported incomplete his
 
            tories to various physicians in this case, it is found that 
 
            this is due to a lack of intellectual ability as suggested 
 
            by a neurologist in this case and a failure to understand 
 
            certain words such as "prior."  Claimant testified that he 
 
            thought this word meant "after" and not "before."  This tes
 
            timony is believed.  Claimant has only an eighth grade edu
 
            cation.
 
            
 
                 Claimant worked for Sulnel as an iron worker only a few 
 
            hours before the alleged injury which is the subject of this 
 
            litigation.  Claimant previously worked as an iron worker in 
 
            the state of Wisconsin approximately ten months prior to the 
 
            alleged injury in this case.  At that time he again only 
 
            worked a few hours before suffering a work injury.  Prior to 
 
            the Wisconsin job, claimant had not worked as an iron worker 
 
            for approximately eight years.  During this time, claimant 
 
            was receiving Title 19 benefits under the ADC entitlements 
 
            program due to disability.  Claimant and his physicians dur
 
            ing this time had regularly certified to ADC administrators 
 
            that claimant was disabled from work due to chronic leg, 
 
            back and neck problems.
 
            
 
                 On or about August 10, 1987, claimant suffered an 
 
            injury which arose out of and in the course of his employ
 
            ment at Sulnel.  He reinjured his low back and neck from a 
 
            fall.  Claimant's account of the injury was, for the most 
 
            part, verified by a union steward who observed claimant 
 
            after the fall and a fellow worker who was operating a crane 
 
            at the time of the injury.
 
            
 
                 As a result of the injury on August 10, 1987, claimant 
 
            was totally disabled and absent from his job at Sulnel from 
 
            August 10, 1987 until June 23, 1988 upon the advice of his 
 
            physicians.  Following the injury, claimant was initially 
 
            treated by Geoffrey Miller, M.D.  Dr. Geoffrey Miller's 
 
            office notes only report a complaint of low back pain when 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            he first saw the claimant but neck pain soon developed in 
 
            the ensuing weeks.  After conservative care did not relieve 
 
            claimant's symptoms, claimant was referred to an orthopedic 
 
            surgeon.  This evaluation was not completed and claimant was 
 
            then referred to the Mayo Clinic in June of 1988 for evalua
 
            tion.  Physicians at the Mayo Clinic diagnosed cluster 
 
            headaches, cervical degenerative disc disease, spondy
 
            lolithesis of the low back, deconditioning and chronic pain 
 
            syndrome.  These physicians felt that claimant's condition 
 
            had stabilized and they rated claimant as suffering from a 
 
            five percent permanent partial impairment to the body as a 
 
            whole and imposed permanent restrictions against the per
 
            forming of heavy work.  It is found that claimant reached 
 
            maximum healing on June 23, 1988, the date of the evaluation 
 
            at the Mayo Clinic.  Initially, the Mayo Clinic doctors 
 
            opined that the permanent partial impairment they had found 
 
            was due to the work injury because claimant had reported to 
 
            them no prior back problems.  However, after receiving 
 
            claimant's extensive prior medical history of back problems, 
 
            this causal connection opinion was retracted.
 
            
 
                 Claimant's prior existing upper and lower back problems 
 
            began with a fall from a tree in 1972.  In January 1978, 
 
            claimant was involved in an auto accident in which he suf
 
            fered an injury of his cervical and lower back and numbness 
 
            of the left arm and leg.  Claimant was off work for several 
 
            months.  Claimant's injury was diagnosed as a sprain with 
 
            minimal permanent partial impairment.  In October 1978, 
 
            claimant fell from a scaffold at home and suffered a broken 
 
            ankle.  Claimant admitted to back pain as well at this time.  
 
            In 1978, claimant, with the assistance of his family physi
 
            cian at the time, Ronald Miller, M.D., established to state 
 
            officials that claimant was permanently totally disabled 
 
            from work due to leg, low back and upper back and neck prob
 
            lems.  Between 1978 and 1986, claimant received intermittent 
 
            care from Dr. Ronald Miller.  However, claimant's treatment 
 
            with Dr. Miller ended when claimant was injured while work
 
            ing as an iron worker in November of 1986 in the state of 
 
            Wisconsin.  Dr. Ronald Miller stated that he could no longer 
 
            certify that claimant was disabled when claimant was working 
 
            as an iron worker out of the state in Wisconsin.  The 
 
            November 1986 injury was later treated by Dr. Geoffrey 
 
            Miller.  The diagnosis at that time was "apparent back 
 
            injury" with no evidence of pain or discomfort.  Between 
 
            November of 1986 and August 1987, claimant was primarily 
 
            treated by Dr. Geoffrey Miller for alcohol abuse.  Although 
 
            Dr. Miller stated in his deposition that claimant never 
 
            reported being free of back pain during this time period, 
 
            claimant's back and neck problems were not a primary concern 
 
            to him or claimant.
 
            
 
                 A finding of fact that the work injury of August 10, 
 
            1987, was a cause of permanent partial impairment or work 
 
            restrictions could not be made.  Claimant failed to demon
 
            strate by the greater weight of the evidence that the work 
 
            injury significantly contributes to his chronic low back and 
 
            neck pain or work activity restrictions.  Claimant clearly 
 
            demonstrated that he does have permanent partial impairment 
 
            and extensive work restrictions.  Claimant also has a very 
 
            pronounced chronic pain syndrome due to his inability to 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            cope with the chronic pain.  However, claimant failed to 
 
            show that the isolated work injury of August 10, 1987, after 
 
            only a few hours on the job, was in any way a cause or a 
 
            partial cause of his physical or mental problems.  
 
            Claimant's failure stems from the lack of supportive medical 
 
            opinion.  Claimant's family practice physician, Dr. Geoffrey 
 
            Miller, stated in his deposition that he felt claimant's 
 
            increased pain after the fall was due to the fall but that 
 
            he could not render an opinion that claimant's permanent and 
 
            chronic pain is due to the fall.  The doctor stated that 
 
            claimant needs further treatment for alcohol abuse and deal
 
            ing with his pain at a pain clinic.  He also strongly sug
 
            gested vocational rehabilitation.  Claimant to date, how
 
            ever, has refused to participate in such endeavors.  Dr. 
 
            Miller believes that claimant is primarily interested in 
 
            receiving disability benefits.
 
            
 
                 On the issue of causal connection of claimant's chronic 
 
            upper and lower back problems to the injury of August 10, 
 
            1987, the parties rely primarily on the views of two spe
 
            cialists.  Claimant retained Richard Neiman, M.D., a neurol
 
            ogist and clinical professor of neurology at the University 
 
            of Iowa Hospitals and Clinics.  Dr. Neiman extensively 
 
            reviewed all of claimant's medical records and after further 
 
            testing, diagnosed that claimant has congenital stenosis or 
 
            narrowing of the spinal canal at the C3-4 level of 
 
            claimant's spine.  Dr. Neiman did not feel that this narrow
 
            ing was work related but that there was also an extensive 
 
            bone spur or arthritis placing pressure upon the spinal cord 
 
            in the narrowed area which has enlarged since testing that 
 
            was done before August 10, 1987.  Dr. Neiman believes that 
 
            the fall at Sulnel in August of 1987, aggravated the pre
 
            existing arthritis and accelerated the formation of the 
 
            spur.  Given the fact that claimant had minimal back and 
 
            neck problems in the two month period prior to the injury, 
 
            Dr. Neiman opined that this accelerated spur growth was the 
 
            source of claimant's upper back problems.
 
            
 
                 Dr. Neiman, however, was troubled by the lack of 
 
            reported neck problems soon after the injury in the records 
 
            of Dr. Geoffrey Miller and the fact that claimant had not 
 
            worked in heavy labor more than a few hours in the eight 
 
            year period before the injury.  Dr. Neiman believes that 
 
            surgery is necessary soon as there is a risk of further 
 
            injury and even death from further encroachment upon the 
 
            spinal cord in the upper back.  Dr. Neiman could find no 
 
            abnormalities to explain claimant's continuing low back 
 
            problems.  Dr. Neiman felt that 50 percent of the upper back 
 
            problems were due to the work injury.
 
            
 
                 On the other hand, Dr. William Robb, a board certified 
 
            orthopedic surgeon, was retained by defendants.  Dr. Robb 
 
            also extensively reviewed claimant's medical records and 
 
            disagrees with Dr. Neiman.  He admits that there are changes 
 
            that have occurred before and after the 1987 injury, but 
 
            these were due to claimant's life-style, his occupation and 
 
            prior injuries, his alcoholism, and claimant's nutritional 
 
            problems and lack of physical fitness.  Dr. Robb had previ
 
            ously extensively examined claimant before the 1987 injury.  
 
            Dr. Neiman had only examined claimant once.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 A neurosurgeon, Chad Abernathey, M.D., also evaluated 
 
            claimant and agrees with Dr. Neiman as to the need to cor
 
            rect the narrowing in claimant's spine.  However, he does 
 
            not discuss in his letter report the accelerated spurring 
 
            theory of Dr. Neiman and only states that it was not possi
 
            ble for him to "say with 100% certainty" whether the injury 
 
            was or was not a cause of this problem.  It is unclear how 
 
            familiar Dr. Abernathey was with claimant's complete medical 
 
            history.
 
            
 
                 Given such a record, the undersigned is unable to 
 
            decide which physician, Dr. Neiman or Dr. Robb, holds the 
 
            most correct view.  Both are equally well qualified and 
 
            equally well informed on claimant's history.  Neither physi
 
            cian appears to be outside of his specialty.  Medical evi
 
            dence and opinion must be heavily relied upon in this case 
 
            as the non-medical evidence by itself fails to show a clear 
 
            causal connection to chronic pain.  The proposition that 
 
            claimant has been disabled since 1978 and that the events in 
 
            November 1986 and August 1987, are only temporary aggrava
 
            tions of this prior condition is just as plausible as 
 
            claimant's theory that the work injury added to his prob
 
            lems.  As claimant has the burden of proof, a finding of 
 
            fact on the issue of permanent partial impairment in favor 
 
            of claimant cannot be made.
 
            
 
                 Absent a finding of permanent partial impairment as a 
 
            result of the work injury, a finding as to a loss of earning 
 
            capacity is unnecessary.
 
            
 
                 According to the prehearing report, there was to be a 
 
            listing of requested medical expenses that remain unpaid.  
 
            No list was submitted.  Absent such a list, a specific find
 
            ing with reference to medical expenses cannot be made.  
 
            However, it is found that the medical expenses from the date 
 
            of injury through the date of the evaluation by the Mayo 
 
            Clinic are causally connected to the injury and constitute 
 
            reasonable and necessary treatment of the work injury.
 
            
 
                 With reference to claimant's gross rate of weekly com
 
            pensation, it is found that claimant's work week at the time 
 
            of injury consisted of seven days a week, 12 hours per day.  
 
            Although defendants offered pay records showing fellow 
 
            employees with considerably less hours per week, such evi
 
            dence failed to demonstrate whether these were customary or 
 
            usual and whether these employees were performing iron work 
 
            as opposed to other construction jobs at the construction 
 
            site.  This finding is based upon claimant's testimony and 
 
            the reports of the vocational counselor in this case.  It is 
 
            also found that claimant's hourly rate was $14.78 per hour.  
 
            This hourly rate was not disputed by defendants.  Therefore, 
 
            claimant had a gross weekly rate of compensation at the time 
 
            of injury of $1,241.52.
 
            
 
                                conclusions of law
 
            
 
                   I.  Claimant has the burden of proving by a prepon
 
            derance of the evidence that claimant received an injury 
 
            which arose out of and in the course of employment.  The 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            words "out of" refer to the cause or source of the injury.  
 
            The words "in the course of" refer to the time and place and 
 
            circumstances of the injury.  See Cedar Rapids Community 
 
            Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto 
 
            Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).  An 
 
            employer takes an employee subject to any active or dormant 
 
            health impairments, and a work connected injury which more 
 
            than slightly aggravates the condition is considered to be a 
 
            personal injury.  Ziegler v. United States Gypsum Co., 252 
 
            Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited 
 
            therein.
 
            
 
                 In the case sub judice, a work injury was found.  
 
            However, the real issue in this case is the causal connec
 
            tion of this injury to claimant's back and neck problems.
 
            
 
                  II.  The claimant has the burden of proving by a pre
 
            ponderance of the evidence that the work injury is a cause 
 
            of the claimed disability.  A disability may be either tem
 
            porary or permanent.  In the case of a claim for temporary 
 
            disability, the claimant must establish that the work injury 
 
            was a cause of absence from work and lost earnings during a 
 
            period of recovery from the injury.  Generally, a claim of 
 
            permanent disability invokes an initial determination of 
 
            whether the work injury was a cause of permanent physical 
 
            impairment or permanent limitation in work activity.  
 
            However, in some instances, such as a job transfer caused by 
 
            a work injury, permanent disability benefits can be awarded 
 
            without a showing of a causal connection to a physical 
 
            change of condition.  Blacksmith v. All-American, Inc., 290 
 
            N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
            288 N.W.2d 181 (Iowa 1980).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert medical opinion.  Bradshaw v. Iowa 
 
            Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  
 
            The opinion of experts need not be couched in definite, pos
 
            itive or unequivocal language and the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 
 
            1974).  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 cir
 
            cumstances.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal connec
 
            tion, such testimony may be coupled with nonexpert testimony 
 
            to show causation and be sufficient to sustain an award.  
 
            Giere v. Asse Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 
 
            911, 915 (1966).  Such evidence does not, however, compel an 
 
            award as a matter of law.  Anderson v. Oscar Mayer & Co., 
 
            217 N.W.2d 531, 536 (Iowa 1974).  To establish compensabil
 
            ity, the injury need only be a significant factor, not be 
 
            the only factor causing the claimed disability.  Blacksmith, 
 
            290 N.W.2d 348, 354.  In the case of a preexisting condi
 
            tion, an employee is not entitled to recover for the results 
 
            of a preexisting injury or disease but can recover for an 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            aggravation thereof which resulted in the disability found 
 
            to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).
 
            
 
                 In the case sub judice, claimant failed to show by the 
 
            greater weight of the evidence a causal connection of the 
 
            work injury to permanent partial impairment and therefore 
 
            the claim for permanent partial disability will be denied.  
 
            Pursuant to Iowa Code section 85.33(1), claimant is still 
 
            entitled to weekly benefits for temporary total disability 
 
            from the first day of disability after the work injury until 
 
            claimant returns to work or until claimant is medically 
 
            capable of returning to substantially similar work to the 
 
            work he was performing at the time of the injury.  However, 
 
            claimant will never be able to return to iron work.  It was 
 
            found that claimant had not been able to perform iron work 
 
            since 1978 and whenever he did so, he simply temporarily 
 
            injured his back.  None of the injuries after 1978 added to 
 
            his disability.  Therefore, temporary total disability bene
 
            fits end when claimant reached the same condition he was in 
 
            prior to the August 10, 1987 injury.  It was found in this 
 
            case that this occurred at the time of the Mayo Clinic eval
 
            uation on June 23, 1988.  Temporary total disability bene
 
            fits will be awarded accordingly.
 
            
 
                 III.  Claimant is entitled to reasonable medical 
 
            expenses for treatment of a work injury under Iowa Code sec
 
            tion 85.27.  As a list of requested expenses was not pro
 
            vided, no specific award can be made.
 
            
 
                  IV.  Claimant has the burden to establish a rate of 
 
            compensation.  In Iowa, the basis of compensation is the 
 
            weekly earnings of the injured employee at the time of the 
 
            injury.  Iowa Code section 85.36.  Weekly earnings is 
 
            defined as follows in Chapter 85:
 
            
 
                 Weekly earnings means gross salary, wages, or 
 
                 earnings of an employee to which such employee 
 
                 would have been entitled had the employee worked 
 
                 the customary hours for the full pay period in 
 
                 which the employee was injured, as regularly 
 
                 required by the employee's employer for the work 
 
                 or employment for which the employee was employed. 
 
                 ...
 
            
 
            Iowa Code section 85.36.
 
            
 
                 This code section also provides various methods of com
 
            puting weekly earnings depending upon the type of earnings 
 
            and employment.  If an employee has not worked 13 weeks 
 
            prior to the injury, you are to turn to similar employees in 
 
            the similar occupation to arrive at a rate.  The evidence 
 
            presented made this impossible in this case.  Therefore, it 
 
            was found that the claimant's customary weekly pay was based 
 
            upon claimant's testimony of seven days a week at 12 hours 
 
            per day.  This resulted in a gross weekly rate of $1,241.52.  
 
            Such a rate entitles claimant to the maximum allowable 
 
            weekly rate for temporary total disability according to the 
 
            commissioner's rate booklet for an injury during fiscal year 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            1988 - $632.00 per week.
 
            
 
                 Although a permanent partial disability award cannot be 
 
            made for him, claimant is awarded costs as his claim was 
 
            arguable and claimant appeared honest at the hearing.  
 
            Defendants assert the application of Chapter 677 of the Iowa 
 
            Code with reference to an offer to confess judgment.  
 
            However, such offers are not to be offered into evidence and 
 
            this was done in this case as joint exhibit C.  In any 
 
            event, although this decision found in favor of defendants 
 
            on the issue of permanent partial disability, it found in 
 
            favor of claimant on the issue of his weekly rate for 
 
            temporary total disability benefits.  No offer to confess 
 
            judgment was made with reference to the rate issue.
 
            
 
                                      order
 
            
 
                 1.  Claimant's claim for permanent partial disability 
 
            benefits is denied.
 
            
 
                 2.  Defendants shall pay to claimant temporary total 
 
            disability benefits from August 10, 1987 through June 23, 
 
            1988, at the rate of six hundred thirty-two and no/l00 
 
            dollars ($632.00) per week.  Defendants shall pay accrued 
 
            weekly benefits in a lump sum and shall receive credit 
 
            against this award for previous weekly benefits paid.
 
            
 
                 3.  Defendants shall insure that all medical benefits 
 
            incurred by claimant through the time of the Mayo Clinic 
 
            evaluation in June 1988 are paid.
 
            
 
                 4.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 5.  Defendants shall pay the costs of this action pur
 
            suant to Division of Industrial Services Rule 343 IAC 4.33, 
 
            including reimbursement to claimant for any filing fee paid 
 
            in this matter.
 
            
 
                 6.  Defendants shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            Division of Industrial Services Rule 343 IAC 3.l.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of December, 1990.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Thomas M. Wertz
 
            Attorney at Law
 
            4089 21st Ave SW
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            Suite 114
 
            Cedar Rapids  IA  52404
 
            
 
            Mr. James E. Shipman
 
            Attorney at Law
 
            1200 MNB Bldg
 
            Cedar Rapids  IA  52401
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803
 
                           Filed December 17, 1990
 
                           LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            EDWIN E. SILVER,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 850694
 
            SULNEL COMPANY,               :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE FARM INSURANCE,         :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-1803
 
            Permanent partial disability benefits were denied for 
 
            failure to show causal connection to a work injury.