9998
 
            Filed September 17, 1991
 
            Byron K. Orton
 
            BJO
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            THOMAS HOVEY,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 854004
 
            QUAKER OATS COMPANY,     :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            TRANSPORTATION INSURANCE CO., :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed April 26, 
 
            1990.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         THOMAS HOVEY,
 
         
 
              Claimant,
 
         
 
         VS.                                          File No. 854004
 
         
 
         QUAKER OATS COMPANY,                       A R B I T R A T I O N
 
         
 
              Employer,                                 D E C I S I O N
 
         
 
         and
 
         
 
         TRANSPORTATION INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Thomas Hovey, against Quaker Oats Company, employer, and 
 
         Transportation Insurance Co., insurance carrier, defendants, to 
 
         recover benefits as a result of an injury occurring on May 18, 
 
         1987.  This matter came on for hearing before the deputy 
 
         industrial commissioner in Cedar Rapids, Iowa, on February 28, 
 
         1990.  The record consists of the testimony of the claimant, 
 
         claimant's wife, Darlene Hovey, Ron Glawe and Kevin Crist; 
 
         claimant's exhibits la through g, 2a and b, 3, and 6 through 8; 
 
         and defendants' exhibits 1 through 7, 11 and 12.
 
         
 
                                      ISSUES
 
         
 
              The issues for resolution are:
 
         
 
              1. The extent of claimant's permanent disability and any 
 
         apportionment of claimant's permanent partial disability between 
 
         her prior February 25, 1985 injury and her May 18, 1987 injury.
 
         
 
              2. Whether claimant is entitled to have defendants pay the 
 
         costs for claimant's copy of an original deposition of a witness 
 
         taken by defendants.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified he graduated only from the eighth grade.  
 
         He said he farmed with his father and worked one year in the 
 
         construction work until he began working for defendant employer 
 
         in the shipping department in 1956.  He described his duties as 
 
         involving unloading, driving a fork lift, assembly work, and many
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         HOVEY V. QUAKER OATS COMPANY
 
         Page 2
 
         
 
         
 
         other jobs until the last seven or eight years when he was 
 
         involved in operating the palletizer machine, loading and feeding 
 
         pallets into the machine and driving a fork lift.
 
         
 
              Claimant described his February 1985 injury in which he hurt 
 
         his back. He said the nurse was busy that day and he was told to 
 
         come back later, so he went back to work.  Claimant stated he 
 
         grabbed a fork lift and his back went out all the way.  He  said 
 
         he could hardly walk.  Claimant related he then had surgery and 
 
         was off four and one-half months.  Claimant testified he returned 
 
         to his same job as a palletizer in June 1986.
 
         
 
              Claimant described his present May 18, 1987 injury which 
 
         occurred when an air cylinder broke in the machine causing some 
 
         pallets to jam.  Claimant said he was leaning over to release a 
 
         piece of metal (dog) to take out a pallet when his back went out.
 
         
 
              Claimant sought medical help and was put on light duty for 
 
         three days.  Claimant said he was sent to James R. LaMorgese, 
 
         M.D., for a CT scan since his back was not getting any better.  
 
         He was then sent to the hospital for a myelogram which indicated 
 
         he needed surgery again.  Claimant emphasized this was a new 
 
         injury and separate from the 1985 injury.
 
         
 
              Claimant related the therapy and exercises at home made his 
 
         pain worse.  Claimant then had surgery on June 10, 1987, and 
 
         returned to work on October 12, 1987.  The claimant indicated the 
 
         doctor let the claimant impose his own restriction; in other 
 
         words, do what he thinks he can do.  Claimant said the doctor did 
 
         not think restrictions meant a lot.
 
         
 
              Claimant said the doctor restricted him to eight hours per 
 
         day, thereby, preventing claimant from working overtime four 
 
         additional hours per day.  Claimant acknowledged he could work 
 
         Saturdays for overtime but not a 12 hour day.  Claimant said 
 
         November 9, 1987 was the first time since his injury that he 
 
         worked a full eight hour day.  Claimant said no doctor put 
 
         lifting restrictions on him.
 
         
 
              Claimant related he has to adjust to his job as a palletizer 
 
         and on occasions asks for help in doing his job.  He said he must 
 
         now rest from time to time.  He stated if he walks too far or is 
 
         on his right leg too long, his right leg gets sore.  Claimant 
 
         indicated his back gets sore after he does a lot of activity.  He 
 
         said he takes Advil every day.  Claimant indicated his pain is 
 
         worse after his 1987 injury.  Claimant related his pain did not 
 
         bother him as much after his 1985 injury when he walked.  He said 
 
         he then could continue to keep going.  Claimant indicates he now 
 
         has to periodically rest.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant contends the fact he can't work overtime is a 
 
         restriction. Claimant emphasized he worked overtime for several 
 
         years prior to his 1987 injury and looked forward to it.
 
         
 
         
 
         
 
         HOVEY V. QUAKER OATS COMPANY
 
         Page 3
 
         
 
         
 
              Claimant acknowledged he signed a workers' compensation 
 
         settlement agreement regarding his 1985 injury agreeing to a 12.5 
 
         industrial disability. Claimant compared the pain difference 
 
         between his 1985 injury versus his 1987 injury.
 
         
 
              Claimant admitted he is more careful now after his 1987 
 
         injury.  Claimant said he has self-imposed a 50 pound lifting 
 
         limit.
 
         
 
              Claimant acknowledged 1988 and 1989 were unusual overtime 
 
         periods.  He said he would like to retire at age 65 if he can 
 
         afford it.  He is fifth in seniority out of 100 to 120 workers.  
 
         He stated this is a slow time of the year and there have been 
 
         some layoffs.  Claimant admitted he lost no work in 1988, 1989 or 
 
         1990 due to his back.  Claimant acknowledged he has never 
 
         complained to defendant employer as to any task he could not do.  
 
         Claimant agreed if he asked for help, he always got it.  Claimant 
 
         acknowledged that the total overtime offered to a worker is not 
 
         the number of overtime hours actually worked.  He said he has not 
 
         been to Dr. LaMorgese for one and one-half years and hasn't 
 
         talked to the doctor about reconsidering the restrictions 
 
         regarding overtime.  He said the other employees, like himself, 
 
         who worked overtime made $9,000 more per year than he did.  
 
         Claimant said he has always worked overtime on weekends before 
 
         and after his injury when given the opportunity.
 
         
 
              Darlene Hovey, claimant's wife, testified claimant's 
 
         activities changed after his 1987 injury.  She said they no 
 
         longer go for drives after work, claimant cannot work in the 
 
         garage repairing things for other  people, and claimant cannot 
 
         work on the furnace or water  heater.  She said claimant has 
 
         other people to help him now.  She related that claimant won't go 
 
         shopping now because his right leg klunks as he walks due to 
 
         numbness in his foot.  She acknowledged claimant does mow the 
 
         lawn with a riding mower and removes snow with a farm tractor.
 
         
 
              Ron Glawe testified he has been a supervisor of defendant 
 
         employer's shipping department for 20 years this July and has 
 
         been claimant's supervisor for 15 years.  He said claimant is a 
 
         good worker and they always maintained daily contact in the 
 
         morning.  Glawe related that claimant never complained of back 
 
         problems any more since his 1987 injury than he did before his 
 
         injury.  He emphasized claimant has not done any substandard work 
 
         and claimant's work behavior has not reflected an injury.  Glawe 
 
         said he also supervises others and claimant's' requests are 
 
         asking for help, but he indicated claimant has not requested help  
 
         any more frequently than he did before his 1987 injury; in other 
 
         words, not more than once or twice a week.  Glawe indicated he 
 
         has seen no difference in claimant's productivity since 
 
         claimant's 1987 injury and he sees no reason why claimant cannot 
 
         continue his job in the future.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Glawe said that unless the palletizer is malfunctioning, 
 
         claimant has time to sit and watch the machine 25 percent of the
 
         
 
         
 
         
 
         HOVEY V. QUAKER OATS COMPANY
 
         Page 4
 
         
 
         
 
         time.  He stated that claimant can take 30 to 60 second rests or 
 
         breaks but he has never seen claimant taking them.  Glawe 
 
         admitted claimant never refused overtime work on weekends or 
 
         other days, if offered, except for the third shift.  He said he 
 
         was not aware of any special accommodations given claimant that 
 
         was not given to others.
 
         
 
              Kevin Crist, safety and health manager for defendant 
 
         employer for the last four years, testified at the hearing and by 
 
         way of a deposition taken September 14, 1989, that he does not 
 
         know claimant personally but is familiar with the company's 
 
         production level.  Crist stated the overtime offered to employees 
 
         doubled during the 1988-1989 oat bran craze.
 
         
 
              Crist testified regarding Exhibit 12, defendant employer's 
 
         payroll records which reflect overtime information.  He explained 
 
         that every employee in a department is offered overtime when 
 
         available on an equitable basis, but the amount actually worked 
 
         by the particular employee may be different.  He also emphasized 
 
         that if four hours is offered and refused, the record would 
 
         reflect six hours offered because of time and a half pay for 
 
         overtime.  (If a weekend, time is double, four hours equal eight 
 
         hours.) Crist related the oat bran craze has not continued into 
 
         1990 and defendant employer is expecting a 15 percent reduction 
 
         in volume from 1989 production levels.  Crist predicted a 
 
         five.day week and a return to the 1987 level.  He testified there 
 
         have been layoffs in the last 60 days and that there have been 
 
         300 laid off this year.
 
         
 
              Crist agreed that claimant is unable to obtain the overtime 
 
         offered during the day because of claimant's eight hours per day 
 
         restriction.  At the time of his deposition on September 14, 
 
         1989, Crist said claimant had 700 hours of overtime available to 
 
         him as of August 1, 1989.  He said this includes the one and 
 
         one-half or double of the straight time hours and does not mean a 
 
         person worked those hours, only that a person was offered them.
 
         
 
              Cindy Thul, manager of the financial accounting for 
 
         defendant employer, testified by way of deposition taken October 
 
         18, 1989.  She said she graduated from University of Northern 
 
         Iowa in 1986 with an accounting degree and upon graduation began 
 
         working for defendant employer.  She said she currently works 
 
         overseeing the payroll.  Nothing else from her deposition 
 
         testimony need be set out as it does not affect the outcome of 
 
         this decision.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The Iowa Musculoskeletal Center, P.C., records of claimant 
 
         reflect claimant had surgery on March 22, 1985 for a lumbar 
 
         laminectomy at L4, 5 on the right  (Defendants' Exhibit 5, page 
 
         2, 9 and 10).  These records on April 8, 1986 additionally show 
 
         claimant was still complaining of neck and low back pain and Dr. 
 
         LaMorgese gave claimant a 15 percent body as a whole permanent
 
         partial impairment.
 
         
 
         
 
         
 
         HOVEY V. QUAKER OATS COMPANY
 
         Page 5
 
         
 
         
 
              On June 2, 1986, William John Robb, M.D., an orthopedic 
 
         surgeon, opined claimant has a 30 percent impairment of the 
 
         strength in the dorsal flexion of the right foot and some 
 
         moderately.diminished sensation on the medial side of the right 
 
         foot.  He opined a 10 percent impairment to claimant's body as a 
 
         whole.
 
         
 
              On May 26, 1987, the records reflect claimant began 
 
         treatment for recurrent pain in his right leg as a result of a 
 
         May 18, 1987 work injury.  These records show claimant had a full 
 
         hemilaminectomy at L5 with removal of some disc fragments and 
 
         scar tissue on June 10, 1987  (Def. Ex. 5, p. 4 and 42).  On 
 
         December 14, 1987, the company medical records indicate:  "Still 
 
         no O.T. - next appt in 3 mos.  Having hip pain for which meds are 
 
         ordered - On vacation and doing alot of hunting."  (Def. Ex. 5, 
 
         p. 24) On December 23, 1987, the record indicates claimant was 
 
         told he is not to work overtime but could work up to eight hours 
 
         a day on Saturday and Sunday if need be.  This restriction was 
 
         continued per claimant's recheck visits on March 8, 1988 and July 
 
         12, 1988, at which time claimant was still complaining of right 
 
         leg pain and numbness in the toes of the right foot.  Claimant 
 
         indicated he was still developing the pain when standing on his 
 
         feet for a long time or doing a lot of walking.  Claimant was to 
 
         be seen again in six months.  The record reflects no more visits 
 
         to the doctor by claimant after July 12, 1988. (Def. Ex. 5, p.
 
         5).
 
         
 
              Mercy Hospital records on May 5, 1988 show claimant was 
 
         admitted that day due to right leg discomfort.  The medical 
 
         impression was:
 
         
 
              IMPRESSION:  1. Phlebothrombosis, right calf,
 
                               probable, with resulting sympto-
 
                               matology.  Consider, but doubt a
 
                               musculoskeketal [sic] type phenomenon,
 
                               such as a muscle pul.
 
         
 
                            2. Arteriosclerotic cardiovascular
 
                               disease with hypertension, not in good
 
                               control.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                            3. Exogenous obesity, complicating the
 
                               above.
 
         
 
                            4. History of L5-Sl disc in the right
 
                               side, also with cervical disc sympto-
 
                               matology.
 
         
 
         (Def. Ex. 5, p. 17)
 
         
 
              James R. LaMorgese, M.D., a neurologist, wrote:
 
         
 
                 I feel that this patient suffered a new injury to
 
              his low back as a result of the May 18., 1987, injury.
 
         
 
         
 
         
 
         HOVEY V. QUAKER OATS COMPANY
 
         Page 6
 
         
 
              The injury resulted in irritation of the Sl nerve root
 
              on the right. The irritation was caused by extrusion
 
              of new fragments underneath the posterior longitudinal
 
              ligament combined with adhesions from his previous
 
              surgery tethering the nerve root to the L5 body.  I
 
              feel that the patient has suffered a new injury
 
              separate from his preexisting back injury at the L4,5
 
              innerspace.
 
         
 
         (Def. Ex. 5, p. 47)
 
         
 
              On February 6, 1989, Dr. LaMorgese wrote to defendants,
 
         attorney, as follows:
 
         
 
                   I am writing you in regard to your letter of
 
              February 1,, 1989, concerning Mr. Thomas  Hovey.  You
 
              asked me several questions in your letter concerning
 
              Mr. Hovey's 2nd surgery.  You also mentioned the letter
 
              of June 22, 1987, that I sent to Cyndra Gratias of
 
              Crawford And Company.  I believe my letter stands by
 
              itself in explaining my position in Mr. Hovey's case
 
              that led up to his 2nd surgery and my opinions as to
 
              why this surgery was performed.  I feel that the
 
              degenerative changes noted on CT scanning of May 29,
 
              1987, in the lower lumbar spine did not account for the
 
              patient's symptoms at that time and did not lead to his
 
              surgery.  I felt that the new disk extrusion at L4,5 as
 
              a result of a new injury precipitated his surgery.  I
 
              feel that Mr. Hovey has suffered a permanent impairment
 
              to the body as a whole of 5 per cent related to his new
 
              injury.
 
         
 
                   You asked another question as to whether Mr. Hovey
 
              is restricted to a 40 hour work week or simply to a
 
              8-hr-day with no restriction on the number of days
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              worked.  I believe my notes indicate that the patient
 
              was restricted to an 8-hr-day without restriction as to
 
              the number of days that he could work on an 8-hr-basis.
 
              I feel that this 8-hr work day restriction is a
 
              permanent one at the present time.
 
         
 
         (Def. Ex. 5, p. 63)
 
         
 
              On June 5, 1989, John R. Walker, M.D., wrote:
 
         
 
                   At the present time I believe he has suffered a
 
              permanent, partial impairment amounting to an
 
              additional 10% which must be charged up to his last
 
              injury and which resulted in his last surgical
 
              procedure.  This 10% should be added to his original
 
              permanent, partial impairment which apparently has
 
              already been awarded following his 1985 problems.  As
 
              far as treatment is concerned, I certainly think he
 
         
 
         HOVEY V. QUAKER OATS COMPANY
 
         Page 7
 
         
 
         
 
              should lose some 40 to 50 lbs. and believe at this time
 
              that there is certainly no surgical indication.,
 
         
 
         (Claimant's Exhibit bit lc, pp. 7-8)
 
         
 
              Defendants' exhibit 3 reflects claimant's answer to 
 
         defendants' interrogatory which shows claimant had back problems 
 
         from 1985 to the date of his accident (May 18, 1987).
 
         
 
              Claimant's tax returns show claimant's 1986 income as 
 
         $29,370.25, 1987 as $20,098.43, 1988 as $33,633.00, and 1989 as 
 
         $35,658.83  (Def. Ex. 7).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              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).
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore 
 
         plain that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The opinion of the supreme court in Olson v. Goodyear 
 
         Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251  (1963), 
 
         cited with approval a decision of the industrial commissioner for 
 
         the following proposition:
 
         
 
                   Disability * * * as defined by the Compensation Act
 
              means industrial disability, although functional
 
              disability is an element to be considered.... In
 
              determining industrial disability, consideration may be
 
              given to the injured employee's age, education,
 
              qualifications, experience and his inability, because
 
              of the injury, to engage in employment for which he is
 
              fitted.
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction.of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is  fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
         
 
         
 
         HOVEY V. QUAKER OATS COMPANY
 
         Page 8
 
         
 
         
 
              Apportionment of disability between a preexisting condition 
 
         and an injury is proper only when there was some ascertainable 
 
         disability which existed independently before the injury 
 
         occurred.  Varied Enterprises, Inc. v.Sumner, 353 N.W.2d 407 
 
         (Iowa 1984)
 
         
 
              The burden of showing that disability is attributable to a 
 
         preexisting condition.is, of course, placed upon the defendant.  
 
         If evidence to establish a proper apportionment is absent, the 
 
         defendant is responsible for the entire disability that  exists.  
 
         Varied Enterprises, Inc., 353 N.W. 2d 407; Becker v. D & E 
 
         Distributing Co., 247 N.W.2d 727, 731 (Iowa 1976); 2A Larson 
 
         Workmen's Compensation Law, SS 59.22; 22 Am.Jur.2d SS  122;  2 
 
         Damages & Tort Actions SS 15.34[l](a).
 
         
 
              Claimant is a 54-year-old grade school graduate.  He began 
 
         working for defendant employer in 1956 in the shipping department 
 
         and has done various types of jobs within that department.  For 
 
         the last seven or eight years claimant has been operating the 
 
         palletizer machine, loading and unloading pallets into the 
 
         machine, and driving a fork lift.  There is no dispute that 
 
         claimant was injured on May 18, 1987.  The main dispute is the 
 
         extent of claimant's industrial disability.  Claimant incurred a 
 
         work-related low back injury on February 25, 1985, resulting in 
 
         surgery. He settled that case on his own and the agreement 
 
         awarded claimant a 12.5 percent industrial disability.  The 
 
         medical evidence at the time showed Dr. LaMorgese opined a 15 
 
         percent permanent impairment to claimant's body as a whole and 
 
         Dr. Robb opined a 10 percent permanent impairment of function to 
 
         claimant's body as a whole.  Dr. Robb also referred to a 30 
 
         percent impairment of strength in the dorsiflexion of claimant's 
 
         right foot and some moderate diminished sensation on the right 
 
         medial side of claimant's right foot.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant apparently contends his current problems basically 
 
         arise from his new injury on May 18, 1987, and that his right 
 
         foot problems are much worse.  Claimant was admitted to the 
 
         hospital for right leg discomfort in May 1986.  It would appear 
 
         claimant is down-playing the residual pain that resulted from his 
 
         first injury in 1985.  The records indicate claimant was having 
 
         some pain problems in his back and leg up to his 1987 injury.  
 
         This is not a surprise as claimant had previously agreed to 
 
         industrial disability of 12.5 percent for his first low back 
 
         injury. 
 
         
 
              Claimant contends he has a loss of earning capacity because 
 
         he is prevented from doing overtime of four hours per day on 
 
         weekdays.  This last overtime work limit was continued for 
 
         claimant as a result of a July 12, 1988 visit to Dr.LaMorgese 
 
         (Def. Ex. 5, p. 5).  Claimant was limited to working eight hours 
 
         per day instead of eight hours plus four hours overtime, if 
 
         available.  Claimant could work eight hours on a Saturday and 
 
         Sunday if he wanted overtime.  Claimant related his desire to 
 
         work all the overtime he could as he was paid time and a half or
 
         
 
         
 
         
 
         HOVEY V. QUAKER OATS COMPANY
 
         Page 9
 
         
 
         
 
         double time.  Claimant indicated that prior to his May 18, 1987 
 
         injury, he tried to work all the overtime he was offered except 
 
         for the third shift.  Mr.Glawe testified that claimant worked all 
 
         the weekends and overtime he could prior to May 1987.  Claimant 
 
         acknowledged he has no lifting restrictions imposed by a doctor.  
 
         He said he is more careful now than he was after his first 
 
         injury.  Claimant said the eight hours restriction is still 
 
         existing. Defendants' Exhibit 5, page 5 indicates claimant was 
 
         told on July 12, 1988 that he was to come back to Dr. LaMorgese 
 
         in six months (January 12, 1989). The record shows claimant has 
 
         not been back to the doctor since his July 12, 1988 visit (Def. 
 
         Ex. 5, p. 5) It appears the doctor was monitoring claimant's 
 
         condition every three to six months on whether to continue the 
 
         "no overtime-on-weekdays" restriction.
 
         
 
              The questions looms whether that would be the restriction 
 
         today, 21 months later, or would the doctor have discontinued 
 
         this restriction if claimant had kept his appointment on or 
 
         around January 1989.  Claimant testified he may be more careful 
 
         now of course, there is a limit usually as to how consistent one 
 
         can work twelve hours a day with a 12.5 percent  permanent 
 
         partial impairment.  The medical records (Def. Ex. 5, p..24) 
 
         indicate on December 14, 1987 that claimant was doing a lot of 
 
         hunting.  Whether claimant's filing his petition on August 9, 
 
         1988 affected his returning to the doctor concerning his overtime 
 
         restriction, is also a question.  It is basically to claimant's 
 
         advantage while litigation is pending to not seek a more current 
 
         medical opinion at defendants' expense to see if the overtime 
 
         restriction is still valid.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The evidence shows claimant's income was $29,370.25 in 1986, 
 
         $20,098.43 in 1987 (the year of the injury and several months of 
 
         healing period), $33,663.00 in 1988, and $35,658.83 in 1989. 
 
         Claimant testified he feels he has lost up to $9,000 per year 
 
         overtime.
 
         
 
              Mr. Crist, the safety and health manager of defendant 
 
         employer, testified that the oat bran craze resulted in doubling 
 
         the overtime offered to workers in 1988 and 1989.  It is obvious 
 
         this craze caught the defendant employer by surprise.  Likewise, 
 
         he said the craze is now lessening and defendant employer 
 
         anticipates a 15 percent reduction in 1990 and has already laid 
 
         off a number of workers.  We see unusual swings in many 
 
         industries and short-lived crazes and commercial phenomenons, 
 
         many of which cannot be predicted.  It is common sense that an 
 
         industry would not pay overtime consistently for years on a 
 
         widespread basis when they can save half or double the amount of 
 
         money by hiring regular time workers.  In looking over the income 
 
         evidence, it appears claimant contends he has now lost as a 
 
         result of his May 1987 injury substantial overtime income and 
 
         that his loss will apparently exist indefinitely, or at least 
 
         until claimant is 65.  The undersigned finds this is pure 
 
         speculation.  One could speculate that the current downtrend Mr. 
 
         Crist related could result in no overtime.  The evidence supports
 
         
 
         
 
         
 
         HOVEY V. QUAKER OATS COMPANY
 
         Page 10
 
         
 
         
 
         the fact that the last two or three years have been unusual.  
 
         Claimant's weekly rate adequately reflects claimant's  situation 
 
         at the time of his 1987 injury.
 
         
 
              Claimant agreed to a 12.5 industrial disability based upon a 
 
         10 to 15 percent permanent partial impairment to his body as a 
 
         whole as a result of his 1985 injury.  Dr. Walker opined a 10 
 
         percent permanent partial impairment to claimant's body as a 
 
         whole due to claimant's second injury, May 18, 1987 and Dr. 
 
         LaMorgese opined a 5 percent permanent partial impairment to 
 
         claimant's body as a whole.  If one wanted to draw a comparison 
 
         between claimant's two injuries, one could conclude that claimant 
 
         has a 7.5 percent industrial disability incurred from his May 18, 
 
         1987 injury.  Defendants have offered to confess judgment for a 7 
 
         percent industrial disability.  It appears defendants may have 
 
         used the comparison to arrive at its 7 percent industrial 
 
         disability for which it confessed judgment.  It is important to 
 
         remember that the determination of industrial disability is an 
 
         evaluation concerning many factors and is not a mathematical 
 
         calculation.  The undersigned finds claimant has incurred a 7 
 
         percent permanent partial impairment to his body as a whole.
 
         
 
              After considering all the evidence of claimant's prior 
 
         injury resulting in a 12.5 industrial disability, his income 
 
         before and after the injury, his age, his education, motivation, 
 
         ability to engage in the employment for which he is fitted and 
 
         has been employed for 35 years, the nature of his injury and 
 
         surgery, and all the other criteria to be considered in 
 
         determining claimant's industrial disability, the undersigned 
 
         finds claimant has incurred an additional industrial disability 
 
         of 10 percent as a result of claimant's May 18, 1987 work-related 
 
         low back injury.  Claimant's total current disability from both 
 
         injuries is 22.5 percent.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant withdrew his 86.13 issue after the parties were 
 
         allowed to orally argue or discuss their case after all the 
 
         evidence was presented.  The court reporter had  already,.been 
 
         excused.  Therefore, the withdrawal of this issue is not 
 
         otherwise on the record.
 
         
 
              The final issue for resolution is whether claimant is 
 
         entitled to be reimbursed by defendants for costs of claimant's 
 
         own copy of an original deposition taken by defendants of a 
 
         potential witness.  This needs no lengthy discussion.  Any party 
 
         desiring a copy of an original deposition taken by another party 
 
         is to consider.the expense as a cost of doing business.  A party, 
 
         in this case the defendants, is responsible for the payment of 
 
         the original deposition the defendants took, plus defendants' own 
 
         copy for litigation purposes.  Claimant is to pay for his own 
 
         copy of the original deposition, if claimant desires to order his 
 
         own copy for trial preparation.
 
         
 
         
 
         
 
         HOVEY V. QUAKER OATS COMPANY
 
         Page 11
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1. Claimant incurred a work-related low back injury on May 
 
         18, 1987, which resulted in a full hemilaminectomy of L5 with 
 
         removal of some disc fragments on June 10, 1987.
 
         
 
              2. Claimant incurred a lumbar laminectomy of L4-5 on the 
 
         right on March 22, 1985, as a result of a February 25, 1985 low 
 
         back injury which resulted in a 12.5 percent industrial 
 
         disability to claimant, which industrial disability preexisted 
 
         claimant's May 18, 1987 injury.
 
         
 
              3. Claimant has a 12.5 preexisting industrial disability as 
 
         a result of claimant's February 25, 1985 low back injury.
 
         
 
              4. Claimant's work-related injury on May 18, 1987 resulted 
 
         in an additional 7 percent permanent impairment to claimant's 
 
         body as a whole.
 
         
 
              5. Claimant is working full-time at the same job he had at 
 
         the time of his May 18, 1987 work injury and is making more money 
 
         now than he was at the time of that injury.
 
         
 
              6. Claimant has a 10 percent loss of earning capacity as a 
 
         result of his May 18, 1987 injury.
 
         
 
              7. Claimant is responsible for his own copy of the original 
 
         copy of a deposition taken of a witness.
 
         
 
                                CONCLUSIONS OF LAW
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant's work-related low back injury on May 18, 1987 
 
         caused an additional 7 percent permanent partial impairment to 
 
         claimant's body as a whole.
 
         
 
              Claimant has a 12.5 percent preexisting industrial 
 
         disability caused by his February 25, 1985 work-related low back 
 
         injury.
 
         
 
              Claimant has an additional 10 percent industrial disability 
 
         caused by his May 18, 1987 work-related low back injury.
 
         
 
              Claimant has a 22.5 percent industrial disability of which 
 
         12.5 percent is preexisting his May l8, 1987 injury.
 
         
 
                                      ORDER
 
              THEREFORE, it is ordered:
 
         
 
              That claimant is entitled to fifty (50) weeks of permanent 
 
         partial disability benefits at the weekly rate of three hundred
 
         
 
         
 
         
 
         HOVEY V. QUAKER OATS COMPANY
 
         Page 12
 
         
 
         
 
         twenty-nine and 34/100 dollars ($329.34) beginning December 23, 
 
         1987.
 
         
 
              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 previously paid all 
 
         healing period benefits which have been stipulated and agreed to 
 
         by the parties plus five percent (5%) permanent partial 
 
         disability benefits.
 
         
 
              That claimant shall pay for his own copy of the witness' 
 
         deposition taken by defendants.
 
         
 
              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 26th day of April, 1990.
 
         
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                         BERNARD J. O'MALLEY
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies to:
 
         
 
         Mr Robert R Rush
 
         Mr Matthew J Nagle
 
         Attorneys at Law
 
         526 2nd Ave SE
 
         P 0 Box 2457
 
         Cedar Rapids IA 52406
 
         
 
         Mr James E Shipman
 
         Mr James M Peters
 
         Attorney at Law
 
         1200 MNB Bldg
 
         Cedar Rapids IA 52401
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                                      5-1803; 5-1806
 
                                                      Filed April 26, 1990
 
                                                      Bernard J. O'Malley
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         THOMAS HOVEY,
 
         
 
                 Claimant,                            File No. 854004
 
         VS.
 
                                                     A R B I T R A T I O 
 
         N
 
         QUAKER OATS COMPANY,
 
                                                        D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         TRANSPORTATION INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         5-1806
 
         Claimant had a 12.5 preexisting industrial disability which 
 
         claimant himself settled.  In this prior injury, claimant's 
 
         medical doctors opined a 10-15% permanent partial impairment to 
 
         claimant's body as a whole.  Apportionment applied in current 
 
         decision.
 
         
 
         5-1803
 
         Claimant awarded 10% additional industrial disability. Claimant 
 
         incurred a 7% permanent partial impairment to his body as a 
 
         whole.  The preexisting industrial disability and additional 
 
         industrial disability equaled 22.5%.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            PATRICIA LAVOIE,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 854432
 
            DES MOINES BALLET,            :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Patricia LaVoie, against her employer, Des 
 
            Moines Ballet, and its insurance carrier, Liberty Mutual 
 
            Insurance, defendants.  The case was heard on January 11, 
 
            1990, in Des Moines, Iowa at the office of the industrial 
 
            commissioner.  The record consists of the testimony of 
 
            claimant and the testimony of Lynn Andlauer, education 
 
            director at the Des Moines Ballet, Margaret LaVoie, mother 
 
            of claimant, and Dorothea Albert, executive director.  
 
            Additionally, the record consists of joint exhibits 1-19.
 
            
 
                                      issues
 
            
 
                 The only issues to be determined are:  1) whether 
 
            claimant is entitled to temporary total disability or 
 
            healing period benefits; 2) whether claimant is entitled to 
 
            medical benefits; and, 3) whether claimant is entitled to 
 
            penalty benefits under section 86.13.  The issue of 
 
            permanency has been bifurcated.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant, at the time of the hearing, was 29 years old.  
 
            From August of 1985 to June of 1987, claimant was employed 
 
            as a ballet dancer with defendant-employer.  Claimant was 
 
            hired each year pursuant to a written contract.
 
            
 
                 On May 30, 1987, claimant was engaged in rehearsing for 
 
            a company production.  She felt pain in her right foot after 
 
            coming down from a jump during a rehearsal.
 
            
 
                 Claimant was sent to William Boulden, M.D.  Dr. Boulden 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            ordered a bone scan of the right foot.  The bone scan 
 
            revealed a stress fracture at the base of the second 
 
            metatarsal.  Dr. Boulden restricted claimant from ballet 
 
            dancing for six weeks.  He also prescribed swimming and 
 
            after several weeks a stationary bicycle.  Claimant informed 
 
            Dr. Boulden she would be returning to New Hampshire for the 
 
            summer and Dr. Boulden agreed to send his reports to the 
 
            physician.
 
            
 
                 Upon her return home, claimant sought treatment from M. 
 
            Dennis Wachs, M.D., an orthopedic surgeon.  He diagnosed 
 
            claimant as recovering from a stress fracture and as having 
 
            a spur in the base of her first metatarsal at the 
 
            metatarsal-tarsal joint.  Dr. Wachs ordered physical therapy 
 
            which claimant had from August of 1987 through September of 
 
            1987.
 
            
 
                 On November 25, 1987, claimant returned to Dr. Wachs 
 
            for follow up care.  The office notes for that date reflect 
 
            the following:
 
            
 
                 Has been rebuilding her lower extremities to get 
 
                 back to ballet, she has began doing small & bit 
 
                 leaps, started doing some toe dances & got into 
 
                 discomfort in her left foot.  She did have some 
 
                 swelling for a short while, & it has quieted down, 
 
                 begun to be more active again & is building up 
 
                 slowly.
 
            
 
                 EXAM:  no tenderness, no swelling, no heat, no 
 
                 tendonitis that is palpable, no crepitus,no [sic] 
 
                 thickening of the joint, ROM is more than full.
 
            
 
                 IMP:  Reaction of her body reaccomdating [sic] to 
 
                 what she does & is not a stress fx.I [sic] think 
 
                 it is an inflammatory reaction
 
            
 
                 P/ Continue on with her training, we discussed 
 
                 training. RECK . PRN
 
            
 
                 Claimant was then referred by Dr. Wachs to William G. 
 
            Hamilton, M.D., an orthopedic surgeon who had an expertise 
 
            in injuries sustained by ballet dancers.  Dr. Hamilton 
 
            diagnosed claimant's condition as of February 17, 1988:
 
            
 
                 FEBRUARY 17, 1988
 
            A 27 year old female with documented stress 
 
            fracture base of the right second metatarsal in 
 
            May of '87.  It subsequently healed.  She was 
 
            dancing this Fall, totally asymptomatic; when she 
 
            went into toe shoes in December she had some mild 
 
            recurrence of her pain.
 
            
 
                 On physical exam today, though, she is not very 
 
                 painful.
 
            
 
                 X-rays, which she brought with her, are normal.
 
            
 
                 Before we work this up I want to make sure that we 
 
                 do have a problem here, so I have recommended that 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 she go very slowly in some toe shoes and see if 
 
                 the discomfort she is having wasn't just the 
 
                 discomfort you might expect when getting back into 
 
                 toe shoes after being off for several months.  She 
 
                 is going to take some classes with Tina Bernal and 
 
                 call me next week.  If she is persistently 
 
                 symptomatic then we'll get another bone scan and a 
 
                 CAT scan to see if she has any unrecognized 
 
                 pathology.
 
            
 
                 Later Dr. Hamilton indicated the aforementioned 
 
            incident in December of 1987, was a continuation of 
 
            claimant's work injury of May 30, 1987.  It was not a 
 
            separate or new injury.
 
            
 
                 Dr. Hamilton prescribed physical therapy three times 
 
            per week for claimant's right foot.  She had physical 
 
            therapy treatments on:  March 14, 1988, April 7, 1988, April 
 
            13, 1988, April 20, 1988, April 27, 1988, May 4, 1988, May 
 
            11, 1988, May 18, 1988, May 31, 1988 and June 7, 1988.  
 
            Claimant testified she could only afford therapy once a week 
 
            as her benefits had been terminated by defendant insurance 
 
            carrier.
 
            
 
                 Claimant also obtained a medical opinion from Robert H. 
 
            Feldman, M.D.  On his report of April 28, 1988, Dr. Feldman 
 
            opined:
 
            
 
                 This is to certify that the above captioned is a 
 
                 patient under my care.  Ms. Lavoie is suffering 
 
                 from chronic myofasciitis [sic] of the right foot, 
 
                 and is status post stress fracture.  She has not 
 
                 been able to function as per her previous capacity 
 
                 and may not resume her dancing until further 
 
                 notice.
 
            
 
                 In November of 1988, Dr. Feldman opined:  "Patricia 
 
            LaVoie is disabled resulting from employment as a ballet 
 
            dancer."
 
            
 
                 As of November of 1988, claimant sought employment with 
 
            the American Red Cross as a telemarketer.  She earned 
 
            $513.00 in gross wages for 1988.  Claimant did not begin 
 
            teaching dance on a regular basis until September of 1989.
 
            
 
                 Defendants terminated claimant's benefits as of January 
 
            4, 1988.
 
            
 
                                conclusions of law
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 Claimant is requesting temporary total disability 
 
            benefits from May 30, 1987 to November 30, 1988, and 
 
            temporary partial disability benefits from November 30, 1988 
 
            through December 31, 1989.  Claimant is also requesting a 
 
            running award for temporary total or temporary partial 
 
            disability benefits.  Defendants argue claimant was paid 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            30.857 weeks of temporary benefits.
 
            
 
                 Section 85.33(1) governs the payment of temporary total 
 
            disability benefits.  It provides:
 
            
 
                 Except as provided in subsection 2 of this 
 
                 section, the employer shall pay to an employee for 
 
                 injury producing temporary total disability weekly 
 
                 compensation benefits, as provided in section 
 
                 85.32, until the employee has returned to work or 
 
                 is medically capable of returning to employment 
 
                 substantially similar to the employment in which 
 
                 the employee was engaged at the time of injury, 
 
                 whichever occurs first.
 
            
 
                 Section 85.33(2) deals with temporary partial 
 
            disability benefits.  It provides as follows:
 
            
 
                 "Temporary partial disability" or "temporarily, 
 
                 partially disabled" means the condition of an 
 
                 employee for whom it is medically indicated that 
 
                 the employee is not capable of returning to 
 
                 employment substantially similar to the employment 
 
                 in which the employee was engaged at the time of 
 
                 injury, but is able to perform other work 
 
                 consistent with the employee's disability.  
 
                 "Temporary partial benefits" means benefits 
 
                 payable, in lieu of temporary total disability and 
 
                 healing period benefits, to an employee because of 
 
                 the employee's temporary partial reduction in 
 
                 earning ability as a result of the employee's 
 
                 temporary partial disability.  Temporary partial 
 
                 benefits shall not be considered benefits payable 
 
                 to an employee, upon termination of temporary 
 
                 partial or temporary total disability, because the 
 
                 employee is not able to secure work paying weekly 
 
                 earnings equal to the employee's weekly earnings 
 
                 at the time of injury.
 
            
 
                 Claimant has been engaged in a highly competitive field 
 
            where employment is sporadic.  Even for healthy dancers, the 
 
            market is slim and dancers are forced to audition by the 
 
            "cattle call method."  Employment is not often regular and 
 
            it is quite common for dancers to "moonlight."
 
            
 
                 Claimant has been temporarily and totally disabled 
 
            because of her work injury from May 30, 1987 through 
 
            November 30, 1988.  Defendants argue the incident in 
 
            November or December of 1987 where claimant sustained pain 
 
            and inflammation to her right foot was unrelated to 
 
            claimant's work injury.  However, Dr. Hamilton has 
 
            determined claimant's condition as of February 11, 1988, was 
 
            related to the injury of May 30, 1987.
 
            
 
                 Claimant testified that she was unable to seek work as 
 
            a dancer or as an instructor until December of 1988.  
 
            Claimant received physical therapy treatments through June 
 
            of 1988.  She would have liked additional therapy, but she 
 
            was financially unable to continue.  Had defendants offered 
 
            additional physical therapy sessions, claimant may have been 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            able to seek a position in dance prior to December of 1988.  
 
            As of December of 1988, claimant was able to return to a 
 
            position substantially similar to the employment in which 
 
            claimant was engaged.  She was actively seeking employment 
 
            in the dance field.  Moreover, in January of 1989, claimant 
 
            did obtain a position with the Londonderry Dance Academy as 
 
            a dance instructor.  She was to start in the fall of 1989.  
 
            Claimant commenced her employment.  At the time of the 
 
            hearing, claimant was still employed by the Academy.
 
            
 
                 Therefore, it is the determination that defendants are 
 
            liable for temporary total disability benefits for the 
 
            period from May 30, 1987 to November 30, 1988.  As of 
 
            December 1, 1988, claimant was able to engage in 
 
            substantially similar employment.  The period involves 
 
            78.714 weeks at the stipulated rate of $134.62.
 
            
 
                 The next issue to address is medical benefits.  Section 
 
            85.27 deals with these.  The section reads:
 
            
 
                 The employer, for all injuries compensable under 
 
                 this chapter or chapter 85A, shall furnish 
 
                 reasonable surgical, medical, dental, osteopathic, 
 
                 chiropractic, podiatric, physical rehabilitation, 
 
                 nursing ambulance and hospital services and 
 
                 supplies therefor and shall allow reasonably 
 
                 necessary transportation expenses incurred for 
 
                 such services.  The employer shall also furnish 
 
                 reasonable and necessary crutches, artificial 
 
                 members and appliances but shall not be required 
 
                 to furnish more than one set of permanent 
 
                 prosthetic devices.
 
            
 
                     ...
 
            
 
                 For purposes of this section, the employer is 
 
                 obliged to furnish reasonable services and 
 
                 supplies to treat an injured employee, and has the 
 
                 right to choose the care.  The treatment must be 
 
                 offered promptly and be reasonably suited to treat 
 
                 the injury without undue inconvenience to the 
 
                 employee.  If the employee has reason to be 
 
                 dissatisfied with the care offered, the employee 
 
                 should communicate the basis of such 
 
                 dissatisfaction to the employer, in writing if 
 
                 requested, following which the employer and the 
 
                 employee may agree to alternate care reasonably 
 
                 suited to treat the injury.  If the employer and 
 
                 employee cannot agree on such alternate care, the 
 
                 commissioner may, upon application and reasonable 
 
                 proofs of the necessity therefor, allow and order 
 
                 other care.  In an emergency, the employee may 
 
                 choose the employee's  care at the employer's 
 
                 expense, provided the employer or the employer's 
 
                 agent cannot be reached immediately.
 
            
 
                 In the case at hand, defendants denied payment of any 
 
            medical expenses incurred after January 4, 1988.  They 
 
            cannot now argue the charges were unauthorized.  See Holbert 
 
            v. Townsend Eng'r. Co., Thirty-Second Biennial Rep., Iowa 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Indus. Comm'r 78, 80 (Review Dec. 1975).
 
            
 
                 Therefore, it is the determination that claimant is to 
 
            be reimbursed for out of pocket medical expenses which she 
 
            has incurred.  These are:
 
            
 
                      2-17-88      Dr. Hamilton        $100.00
 
             4/88 thru 6/88   East Side P.T.       500.00
 
                    4/88      Dr. Ieidman          180.00
 
                      4/89      Dr. Wachs             32.00
 
                                        Total     $812.00
 
            
 
                 Claimant is also entitled to reasonable and necessary 
 
            future medical expenses.  Under section 85.27, these include 
 
            reasonable and necessary physical therapy treatments for 
 
            claimant's right foot which are related to her May 30, 1987 
 
            work injury.  It appears, given claimant's geographical 
 
            location, that Dr. Wachs is a proper physician to direct the 
 
            care and therapy.
 
            
 
                 Finally, there is the issue of section 86.13 penalty 
 
            benefits.  Claimant alleges she is entitled to the same.
 
            
 
     
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Section 86.13 of the Iowa Code provides in relevant portion:
 
            
 
                 If a delay in commencement or termination of 
 
                 benefits occurs without reasonable or probable 
 
                 cause or excuse, the industrial commissioner shall 
 
                 award benefits in addition to those benefits 
 
                 payable under this chapter, or chapter 85, 85A, or 
 
                 85B, up to fifty percent of the amount of benefits 
 
                 that were unreasonably delayed or denied.
 
            
 
                 Under section 86.13, benefits are not awarded for 
 
            medical expenses.  The section 86.13 benefits are only 
 
            applicable to weekly compensation benefits.  Zahn v. Iowa 
 
            State Men's Reformatory, IV Iowa Industrial Commissioner 
 
            Report 409 (1983).
 
            
 
                 If it is alleged that an employer wrongfully withholds 
 
            weekly compensation benefits from a claimant, the claimant 
 
            must establish the benefits were withheld unreasonably in 
 
            order for the claimant to receive additional benefits under 
 
            section 86.13.  Curtis v. Swift Independent Packing, IV Iowa 
 
            Industrial Commissioner Report 88 at 93 (1984).  In a 
 
            previous decision before the Division of Industrial 
 
            Services, a hearing deputy has ruled that it was reasonable 
 
            for an employer to withhold benefits when the employer was 
 
            not alerted to occurrences which would notify a reasonable 
 
            person that benefits would be due or when there was no work 
 
            time lost.  McCormack v. Sunsprout, I-l Iowa Industrial 
 
            Commissioner Decisions 142 at 144 (1984).
 
            
 
                 In a separate decision before the Division of 
 
            Industrial Services, the same deputy industrial commissioner 
 
            awarded benefits under section 86.13.  Here there was an 
 
            unreasonable delay since there were no contradictions in the 
 
            claimant's claim.  Willis v. Ruan Transport Corporation, IV 
 
            Iowa Industrial Commissioner Report 395 at 396 (1984).  In 
 
            the Willis case at 396 the deputy wrote:
 
            
 
                 ...Reports and letters from the doctor are 
 
                 consistent with claimant's statements regarding 
 
                 his injury.
 
            
 
                 There were no ambiguities and inconsistencies in 
 
                 claimant's claim.  Withholding benefits was 
 
                 arbitrary and unreasonable.  The five percent 
 
                 award based on Iowa Code section 86.13 will be 
 
                 attached to healing period only.  Although the 
 
                 evidence presented clearly relates claimant's 
 
                 permanent impairment to his injury, defendants 
 
                 will be given the benefit of the doubt as to 
 
                 whether or not a failure to pay permanent 
 
                 disability also was unreasonable.  Claimant had 
 
                 prior back troubles and conceivably some portion 
 
                 of his impairment might have been related to those 
 
                 difficulties or to a preexisting arthritis rather 
 
                 than to his injury.
 
            
 
                 See also Walter L. Peterman v. American Freight System, 
 
            File No. 747931 (Arbitration Decision August 10, 1988).
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 Claimant has met her burden of proving that defendant 
 
            Liberty Mutual did unreasonably withhold her weekly 
 
            compensation benefits.  Initially, it would not have been 
 
            unreasonable for defendant Liberty Mutual to deny weekly 
 
            compensation.  Dr. Wachs believed that claimant could return 
 
            to dancing in December of 1987 or January of 1988.  However, 
 
            once defendants learned from Dr. Hamilton that claimant was 
 
            still having difficulties because of her work injury, 
 
            defendants should have reinstituted the weekly benefits.  It 
 
            appears defendant-insurance carrier did little in the way of 
 
            investigation once claimant moved out of state.  It is the 
 
            determination of the undersigned that defendants are liable 
 
            for ten (10) weeks of 86.13 penalty benefits.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants are to pay temporary total disability 
 
            benefits for the period from May 30, 1987 through November 
 
            30, 1988, a period of seventy-eight point eight-five-seven 
 
            (78.857) weeks at the stipulated rate of one hundred 
 
            thirty-four and 62/l00 dollars ($134.62) per week.
 
            
 
                 Defendants shall receive credit for all benefits 
 
            previously paid and not credited.
 
            
 
                 Payments that have accrued shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 Defendant Liberty Mutual is to also pay unto claimant 
 
            ten (10) weeks of section 86.13 penalty benefits at fifty 
 
            percent (50%) of the stipulated rate of one hundred 
 
            thirty-four and 62/l00 dollars ($134.62) with interest from 
 
            the date of this decision.
 
            
 
                 Defendants are to reimburse claimant for out-of-pocket 
 
            medical expenses in the sum of eight hundred twelve and 
 
            no/l00 dollars ($812.00).
 
            
 
                 Defendants are to provide reasonable and necessary 
 
            future medical expenses including physical therapy.
 
            
 
                 Costs of the action shall be assessed to defendants 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 Defendants shall file a claim activity report upon 
 
            payment of this award.
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of September, 1990.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harry W. Dahl
 
            Attorney at Law
 
            974 73rd St
 
            Suite 16
 
            Des Moines  IA  50312
 
            
 
            Mr. Joseph A. Happe
 
            Attorney at Law
 
            500 Liberty Bldg
 
            Des Moines  IA  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1801; 4000.2
 
                                               Filed September 13, 1990
 
                                               MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            PATRICIA LAVOIE,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 854432
 
            DES MOINES BALLET,            :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            1801
 
            Claimant was a ballet dancer.  She injured her right foot 
 
            when she was jumping during a rehearsal.  Claimant was 
 
            awarded 78.857 weeks of temporary total disability benefits 
 
            as she could not return to substantially similar employment 
 
            until that time.
 
            
 
            
 
            4000.2
 
            Claimant was also awarded 10 weeks of section 86.13 penalty 
 
            benefits.  Defendant-insurance carrier terminated benefits 
 
            after a period of time.  The company refused to reinstitute 
 
            the benefits after a physician had determined claimant's 
 
            condition was causally connected to her work injury.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            KAREN HAMILTON,           :
 
                      		      :
 
                 Claimant, 	      :   File Nos. 854465/877068
 
                      		      :
 
		            vs.       :          A P P E A L
 
                		      :
 
            COMBINED INS. OF AMERICA, :        D E C I S I O N
 
                      		      :
 
                 Employer,            :
 
                 Self-Insured,        :
 
                 Defendant.           :
 
            ___________________________________________________________
 
            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 February 21, 1991 is affirmed and is adopted as the 
 
            final agency action in this case. 
 
            Defendant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of October, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                           INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Steven C. Jayne
 
            Attorney at Law
 
            5835 Grand Ave., Ste 201
 
            Des Moines, Iowa 50312
 
            
 
            Mr. Helmut Mueller
 
            Attorney at Law
 
            Rural Route 5
 
            Osceola, Iowa 50213
 
            
 
            Mr. Harry W. Dahl
 
            Attorney at Law
 
            974 73rd St., Ste 16
 
            Des Moines, Iowa 50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed October 31, 1991
 
            Byron K. Orton
 
            DRR
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            KAREN HAMILTON,	      :
 
                      		      :
 
                 Claimant,            :   File Nos. 854465/877068
 
                      		      :
 
		            vs.       :          A P P E A L
 
                		      :
 
            COMBINED INS. OF AMERICA, :        D E C I S I O N
 
                      		      :
 
                 Employer,            :
 
                 Self-Insured,        :
 
                 Defendant.           :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed February 
 
            21, 1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KAREN HAMILTON,               :
 
                                          :         File Nos. 854465
 
                 Claimant,                :                   877068
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            COMBINED INS. OF AMERICA,     :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 The above captioned matters were consolidated by an 
 
            Order filed August 10, 1988.
 
            
 
                 File number 854465 is a proceeding in arbitration upon 
 
            claimant's petition filed June 14, 1988.  Karen Hamilton 
 
            alleges that she sustained injuries to her back and leg when 
 
            she suffered a fall while getting out of her car in the 
 
            course of employment as an insurance salesperson for 
 
            defendant self-insured employer Combined Insurance Company 
 
            of America.  She now seeks benefits under the Iowa Workers' 
 
            Compensation Act.
 
            
 
                 File number 877068 is also a proceeding in arbitration 
 
            upon a petition of June 14, 1988.  Claimant alleges that, 
 
            due to weakness in one hip and dizziness related to a 
 
            medication prescribed for treatment of her earlier injury, 
 
            she fell into an iron railing on November 3, 1987, causing 
 
            severe injuries to her face and neck.  She also seeks 
 
            benefits for this injury under the Iowa Workers' 
 
            Compensation Act from defendant Combined Insurance Company 
 
            of America.
 
            
 
                 Hearing on the arbitration petitions was had in Des 
 
            Moines, Iowa, on May 30, 1990.  Witnesses at the hearing 
 
            included claimant, Earl Hamilton, Ronald Musselman, Jeff 
 
            Johnson, Donald Reck and Kathleen Runyan.  Claimant's 
 
            exhibits 4, 6, 7 and 8 were received into evidence.  
 
            Claimant's exhibits 1, 2 and 3 were offered, but excluded 
 
            upon objection.  Claimant's exhibit 5 was offered and 
 
            objections taken under advisement.  Defendant's objection is 
 
            now overruled and claimant's exhibit 5 received.  Joint 
 
            exhibits A through N, inclusive, were admitted, except that 
 
            certain objections interposed during the course of 
 
            deposition exhibits C, G, M and E were taken under 
 
            advisement.  All such objections are now overruled.  The 
 
            writer also discovered that pages 17-19 of exhibit E were 
 
            omitted.  Upon notification, defendant subsequently filed an 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            unresisted Motion to Reopen the Record so as to offer those 
 
            pages.  The motion is hereby sustained.
 
            
 
                 Attorneys for both parties submitted articulate and 
 
            helpful briefs.
 
            
 
                                      issues
 
            
 
                 In file number 854465, the parties have stipulated:  
 
            that claimant sustained an injury arising out of and in the 
 
            course of her employment with Combined Insurance Company of 
 
            America on April 17, 1987; that the injury caused temporary 
 
            disability; that if the injury caused permanent disability, 
 
            it is an industrial disability to the body as a whole; that 
 
            the proper rate of weekly benefits is $175.66; that 
 
            defendant paid 16 and 3/7 weeks of compensation at the rate 
 
            of $152.97 prior to hearing.
 
            
 
                 Issues presented for resolution in file number 854465 
 
            include:  the extent of claimant's entitlement to temporary 
 
            total disability or healing period; whether the work injury 
 
            caused permanent disability and the extent and commencement 
 
            date thereof; the extent of claimant's entitlement to 
 
            medical benefits (it is stipulated that the fees and 
 
            expenses charged for medical services or supplies are fair 
 
            and reasonable and incurred for reasonable and necessary 
 
            medical treatment, but causal connection to the work injury 
 
            is disputed); taxation of costs.
 
            
 
                 In file number 877068, the parties have stipulated:  
 
            that an employment relationship existed between claimant and 
 
            employer at the time of the alleged injury; that the proper 
 
            rate of weekly benefits is $175.66.
 
            
 
                 Issues presented for resolution in file number 877068 
 
            include:  whether claimant sustained an injury arising out 
 
            of and in the course of her employment on November 3, 1987 
 
            (or, more to the point, whether the injury claimant 
 
            undoubtedly suffered on that date is a sequela of the first 
 
            work injury); whether the injury caused temporary or 
 
            permanent disability, the extent of each and the nature and 
 
            commencement date of the latter; the extent of entitlement 
 
            to medical benefits (it being again stipulated that the fees 
 
            and expenses charged for medical services or supplies are 
 
            fair and reasonable and incurred for reasonable and 
 
            necessary medical treatment, but it is disputed whether 
 
            those expenses are causally related to the work injury); 
 
            taxation of costs.
 
            
 
                 In each file, defendant has asserted lack of 
 
            authorization as a defense to medical benefits under Iowa 
 
            Code section 85.27.  An employer's obligation to furnish 
 
            medical treatment under Iowa Code section 85.27 carries with 
 
            it the privilege of selecting the care.  Boyce v. Consumers 
 
            Supply Dist. Co., II Iowa Industrial Commissioner Report 50 
 
            (App. Decn., 1981).  However, defendant cannot deny 
 
            liability on the claim and also seek to guide the course of 
 
            treatment.  Barnhart v. MAQ, Inc., I Iowa Industrial 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            Commissioner Report 16 (1981).  In file number 877068, 
 
            defendant has never admitted liability.  In file number 
 
            854465, defendant's answer filed July 1, 1988 admitted "that 
 
            the claimant have [sic] had an episode of some kind getting 
 
            out of a car on the date alleged," but subsequently referred 
 
            to that injury as "alleged" and prayed that the commissioner 
 
            dismiss the petition.  In a first amendment to answer filed 
 
            July 26, 1989, defendant admitted that claimant sustained 
 
            injury getting out of her car, but it was unclear whether 
 
            this was intended to constitute an admission that the injury 
 
            arose out of and in the course of employment.  This was 
 
            clarified at the prehearing conference held January 23, 
 
            1990, when defendant asserted that "arising out of" remained 
 
            an issue to be determined at hearing.  Only on the day of 
 
            hearing, May 30, 1990, did defendant concede that the April 
 
            17, 1987 injury arose out of and in the course of 
 
            employment.  This late-breaking admission of liability does 
 
            not operate to retroactively confer upon defendant the right 
 
            to control medical treatment.  The authorization defense is 
 
            frivolous and shall not be further considered.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy industrial commissioner, having 
 
            heard the testimony and considered all of the evidence, 
 
            finds:
 
            
 
                 Karen Hamilton, 39 years of age at the time of hearing, 
 
            proved to be an entirely credible witness.  She has lived on 
 
            a farm in the Weldon, Iowa area since the age of two.  She 
 
            is a 1969 high school graduate and also attended courses 
 
            requisite to state licensure for insurance sales.
 
            
 
                 Claimant's work history includes being a nurse's aide 
 
            for a short time following graduation from high school, 
 
            several months' employment as a bookkeeper for a local 
 
            newspaper, several months of employment as a sales clerk for 
 
            a department or dime store, one to two years of clerical 
 
            work for a bank, several months of employment as a legal 
 
            secretary, approximately one year as a factory employee 
 
            running a drill press, approximately ten years out of the 
 
            labor market while raising her children, short part-time 
 
            employment as a bookkeeper for a realty company, part-time 
 
            employment as a salesperson for a cosmetics business and 
 
            employment beginning in March 1986 as an insurance 
 
            salesperson of accident and sickness policies for Combined.  
 
            During this time, claimant has also performed many chores on 
 
            the acreage where she lives, including caring for livestock.
 
            
 
                 Prior to beginning work with Combined, claimant had no 
 
            history of psychiatric care, no history of dizzy spells or 
 
            faintness, and no history of medical treatment to the lower 
 
            back or hips, although she does have a history of 
 
            chiropractic treatment to the thoracic spine (between the 
 
            shoulder blades).
 
            
 
                 Claimant's job as an insurance salesperson included 
 
            making many rural sales visits, both on referral from 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            existing customers and as "cold" calls.  On April 17, 1987, 
 
            while making a sales call, claimant caught her foot while 
 
            getting out of her car and fell, causing pain to the lower 
 
            back and legs.  She immediately sought treatment from her 
 
            previous treating chiropractor, C. E. Tindle, D.C.  She 
 
            underwent further manipulative therapy for what Dr. Tindle 
 
            diagnosed as a "vertebral subluxation" on April 17, 20, 24, 
 
            28 and May 1, 4 and 8.
 
            
 
                 Dr. Tindle apparently thereafter left on vacation and 
 
            claimant began seeing James E. Audlehelm, D.C., who 
 
            testified by deposition on May 3, 1990.
 
            
 
                 The initial history given to Dr. Audlehelm on May 12, 
 
            1987 was of a fall injuring the back and left knee and with 
 
            headaches and pain in the right hip thereafter, mostly at 
 
            night.  Dr. Audlehelm treated claimant with chiropractic 
 
            manipulation and ultrasound therapy, apparently effective 
 
            enough in relieving pain that claimant has continued to see 
 
            him to date.  Dr. Audlehelm felt that claimant had suffered 
 
            muscle spasm, which he testified he could feel as a treating 
 
            physician.  Muscle spasm was reported in the lumbar spine 
 
            and the cervical spine (which he felt was causally related 
 
            to reported headaches).  He opined that these spasms were 
 
            directly caused by the April fall.
 
            
 
                 Claimant was also seen by D. D. Wilken, M.D., on June 
 
            13 and June 23, 1987.  A CT scan of the lumbar spine was 
 
            taken and reported normal.
 
            
 
                 Thereafter, claimant was referred to Peter D. Wirtz, 
 
            M.D.  Dr. Wirtz, who first saw her on July 1, 1987, is a 
 
            board certified orthopaedic surgeon and testified by 
 
            deposition on September 15, 1989.  His initial diagnosis was 
 
            of a healed contusion to the left knee and muscular strain 
 
            to the right lower back area, which at that time disabled 
 
            her from employment.
 
            
 
                 Claimant and Dr. Wirtz have markedly different 
 
            recollections as to what occurred on July 1, 1987.  Claimant 
 
            testified:
 
            
 
                 Q.  Do you recall your first appointment with 
 
                 Doctor Wirtz?
 
            
 
                 A.  Yes, I do.
 
            
 
                 Q.  We, of course, have his deposition, and we, of 
 
                 course, have his medical records, and can you 
 
                 describe for us his examination?
 
            
 
                 A.  He told me to lean forward, and I told him 
 
                 that was as far as I could go, and he proceeded to 
 
                 force me to go over farther, and then he asked me 
 
                 to see how far I could bend to the right, and I 
 
                 would tell him that's -- he told me to bend as far 
 
                 until it hurt, and I did, and then it wasn't far 
 
                 enough, he'd give me a little push over, and the 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
                 same with the left side, and then he told me to 
 
                 bend back and he pulled me back farther than what 
 
                 I could take.
 
            
 
                 Q.  Was this painful to you, these movements?
 
            
 
                 A.  Yes, I left there in tears.
 
            
 
                 Q.  Before he pushed you or pulled you or bent you 
 
                 in the fashion that you described, did you tell 
 
                 him that you had bent as far as you could?
 
            
 
                 A.  Yes, I did.
 
            
 
                 Q.  Did you tell him that he had hurt you?
 
            
 
                 A.  Yes, I did.
 
            
 
                 Q.  How did you feel physically after you left his 
 
                 office as compared with before you got there that 
 
                 day?
 
            
 
                 A.  I felt really bad.  In fact, I drove to 
 
                 Osceola and went to Doctor Audlehelm because I 
 
                 just couldn't -- I was really in a lot of pain.
 
            
 
            (Transcript, page 48, line 7 through page 49, line 12)
 
            
 
                 On the other hand, Dr. Wirtz testified:
 
            
 
                 A.  She had a routine examination of 7-1-87 to 
 
                 examine the range of motion and neurologic 
 
                 condition, and her condition was that no change in 
 
                 her physical status occurred after the exam as 
 
                 compared to when she was seen before the exam.
 
            
 
                 Q.  In the original examination on July 1, 1987, 
 
                 did she complain to you at all about the way the 
 
                 examination was being conducted?
 
            
 
                 A.  No.
 
            
 
            (Dr. Wirtz deposition, page 6, lines 9 through line 17)
 
            
 
                 Dr. Audlehelm testified that claimant reported a 
 
            situation which he understood to have occurred on July 27 
 
            wherein she reported that Dr. Wirtz performed a twisting 
 
            procedure causing her back to "pop," and that she complained 
 
            of extreme pain in the lower back and neck.  Dr. Audlehelm's 
 
            chart notes are not in evidence.  However, claimant's 
 
            submission of medical expenses indicates that each physician 
 
            was seen both on July 1 and July 27, 1987.  It seems likely 
 
            that Dr. Audlehelm meant to refer in his testimony to events 
 
            of July 1 and not July 27.
 
            
 
                 In any event, claimant's recitation of events is found 
 
            credible.  As shall be seen, Dr. Wirtz's testimony has not 
 
            been accepted where it conflicts with other medical and lay 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            testimony.  It is hugely improbable that claimant as early 
 
            as July 1, 1987 would have had any inkling that Dr. Wirtz 
 
            would later give testimony almost wholly favorable to 
 
            defendant.  There was thus no reason for her at that time to 
 
            take steps to undermine that physician's future credibility.  
 
            No doubt the reason why she immediately left (in tears) to 
 
            seek treatment from Dr. Audlehelm was the pain inflicted by 
 
            Dr. Wirtz's attempt to test the outer limits of her passive 
 
            range of motion.  Dr. Wirtz's denial of this incident lacks 
 
            credibility.
 
            
 
                 In any event, Dr. Audlehelm testified that claimant's 
 
            condition regressed after July 27, 1987.  He continued to 
 
            see claimant through the summer, a total of nine times 
 
            during September and October.
 
            
 
                 In early August, claimant attempted to return to work, 
 
            but was only able to work several half days due to worsening 
 
            back and leg pain.  She saw Dr. Wirtz again on August 27 on 
 
            defendant's referral, although with reluctance.  However, 
 
            she brought her sister with her to the appointment and 
 
            testified that she did not feel ill treated.  Dr. Wirtz 
 
            evaluated the CT scan taken in June and interpreted it to 
 
            show bulging at L4-5 and L5-S1 without evidence of 
 
            herniation or nerve impingement.  His diagnosis was back 
 
            pain of disc etiology, but opined that claimant's original 
 
            condition relating to the April fall had cleared and that 
 
            new symptoms were causally related to brief work activity in 
 
            early August.  Based on x-ray examination, Dr. Wirtz 
 
            believed claimant's bulging disc condition to have 
 
            preexisted the x-rays (the date of which is unclear) by at 
 
            least 6 or 12 months.  Claimant was given restrictions as to 
 
            bending, sitting and driving, and was prescribed a back 
 
            brace and a medication known as Flexeril, 10 milligrams 
 
            twice or thrice per day with open refills for six months.
 
            
 
                 Thirty milligrams per day of Flexeril is in the range 
 
            of three-quarters of a maximum dose for adults.
 
            
 
                 The 1989 edition of Physician's Desk Reference, a 
 
            source used and relied upon by Dr. Wirtz in his everyday 
 
            practice, notes that the most common adverse reactions 
 
            reported with respect to Flexeril include drowsiness, dry 
 
            mouth and dizziness (in clinical studies, 11 percent suffer 
 
            dizziness, but only 3 percent in a surveillance program).  
 
            Flexeril is indicated as an adjunct to rest and physical 
 
            therapy for relief of muscle spasm associated with acute, 
 
            painful musculoskeletal conditions.  Improvement is 
 
            manifested by relief of muscle spasm and associated signs 
 
            and symptoms, including pain, tenderness, limitation of 
 
            motion and restriction in daily activities.  Physician's 
 
            Desk Reference states:
 
            
 
                 FLEXERIL (Cyclobenzaprine HCl, MSD) should be used 
 
                 only for short periods (up to two or three weeks) 
 
                 because adequate evidence of effectiveness for 
 
                 more prolonged use is not available and because 
 
                 muscle spasm associated with acute, painful 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
                 musculoskeletal conditions is generally of short 
 
                 duration and specific therapy for longer periods 
 
                 is seldom warranted.
 
            
 
            (Emphasis in original).
 
            
 
                 Claimant does not recall being given any precautions 
 
            concerning Flexeril, although Dr. Wirtz had originally 
 
            prescribed a drug known as Talwin, which was discontinued 
 
            when claimant complained of resulting hallucinations.  In 
 
            any event, she continued to take Flexeril pursuant to the 
 
            open prescription.
 
            
 
                 Right from the beginning, claimant felt that Flexeril 
 
            caused side effects of tiredness, dullness, weakness and 
 
            dizziness.  On one occasion prior to the November injury, 
 
            while walking with her husband, she began feeling dizzy and 
 
            weak and "kind of slouched down, you know, kind of dizzy," 
 
            but was prevented from falling because she was able to hold 
 
            her husband, Earl.  He confirmed her complaints of 
 
            light-headedness and grogginess.  However, claimant did not 
 
            complain to Dr. Wirtz and ask for a change in medication.  
 
            This proved to be a terrible mistake.
 
            
 
                 On November 3, 1987, claimant awoke at approximately 
 
            6:30 a.m. and took a hypothyroid medication (as she had been 
 
            doing for years).  Her husband (a railroad worker and 
 
            acreage farmer) was home on vacation and her mother came 
 
            over for breakfast.  About an hour after getting up, she 
 
            took her first dose of Flexeril and after breakfast walked 
 
            out to the car when Earl took her mother home.
 
            
 
                 After filling a horse trough with water, claimant 
 
            returned the short distance to her double-wide mobile home 
 
            on a smooth and level sidewalk, only a short distance.  She 
 
            became lightheaded and dizzy ("you know, like I had been 
 
            feeling when I took my Flexeril, you know.  It was like I 
 
            didn't have control when I was falling.") and her weaker 
 
            right leg or hip "gave out."  This occurred very close to 
 
            the steps to the mobile home, equipped with a cast iron 
 
            railing.  Claimant's left knee hit the ground first and she 
 
            threw up her hands to protect her face from the rail or 
 
            sidewalk, but failed:
 
            
 
                 Q.  What is the next thing that you remember after 
 
                 you fell into the rail?
 
            
 
                 A.  My face hanging off.  My face was like -- 
 
                 everything was hanging there in my hand.
 
            
 
            (Transcript, page 65, lines 17 through 20)
 
            
 
                 Claimant's facial injury, as aptly described by Dr. 
 
            Wilken in his November 3, 1987 chart note, was a "horrendous 
 
            laceration."  The laceration was full thickness, meaning 
 
            that a large portion of her face was literally torn away.
 
            
 
                 Claimant was treated for her facial laceration by 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            Eugene Peterson, M.D.  Dr. Peterson specializes in 
 
            otolaryngology (the specialty includes facial plastic 
 
            surgery) and testified by deposition on April 25, 1990.  He 
 
            described the injury thusly:
 
            
 
                 Q.  What was the extent of her injuries, at least 
 
                 upon your gross examination?
 
            
 
                 A.  In the ear, nose and throat area the primary 
 
                 injury was to the face.  She had an extensive 
 
                 laceration that extended from the right side of 
 
                 the upper lip up across the nose and then into the 
 
                 substance of the left cheek area down to the lower 
 
                 aspect of the mandible or chin area.  The overall 
 
                 laceration was 17 and a half sonometers in length, 
 
                 or approximately 7 inches.  This was a 
 
                 through-and-through laceration, meaning it 
 
                 extended not only through the skin, but through 
 
                 the muscle and into the mouth, as well as into the 
 
                 nose and down into deeper bone in the cheek area 
 
                 and the jaw area.  She also had weakness as far as 
 
                 movement of the left upper lip and the left lower 
 
                 lip and chin area consistent with the 
 
                 through-and-through laceration, also cutting the 
 
                 branches or filaments of the nerve to the face, 
 
                 called the facial nerve.  That provides function 
 
                 or movement to the face.
 
            
 
            (Dr. Peterson deposition, page 7, line 6 through page 8, 
 
            line 1)
 
            
 
                 Dr. Peterson performed immediate surgery to clean and 
 
            repair the lacerations, but it proved impossible to identify 
 
            nerve branches.  During the first procedure, claimant's eyes 
 
            were damaged by disinfectant leaving her totally blinded for 
 
            several days.  Fortunately, sight was restored.  He 
 
            performed more or less extensive revision surgery (including 
 
            to the nose and breathing passages) on October 3, 1988, June 
 
            9 and October 9, 1989 and January 22, 1990.  More surgical 
 
            revisions are planned.  Claimant has not healed especially 
 
            well.  There is facial asymmetry.  She has formed a keloid, 
 
            or extra scar tissue, especially on the upper aspect of the 
 
            dorsum of the nose.  Dr. Peterson believes that weakness to 
 
            the upper and lower lips is a permanent functional 
 
            impairment and assesses a 3 percent impairment to the whole 
 
            person based on facial nerve damage and a 15 percent body as 
 
            a whole impairment based on skin damage, which he combined 
 
            to reach a 20 percent impairment to the body as a whole.  
 
            However, the American Medical Association Guides to the 
 
            Evaluation of Permanent Impairment, Third Edition, (Dr. 
 
            Peterson also used the AMA guide) combined values chart 
 
            shows that 3 percent and 15 percent whole person impairments 
 
            constitute a combined 18 percent whole person impairment.
 
            
 
                 Although Dr. Peterson intends further surgery, he 
 
            anticipates that claimant will continue to have prominent 
 
            facial scarring.  He has repeatedly opined that his patient 
 
            is incapacitated from work requiring public exposure.
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Under delicate probing on cross-examination, both Earl 
 
            and claimant's uncle (to whom she has been extremely close 
 
            since the death of her father at age 15) denied that she is 
 
            ugly.  This observer concurs.  Claimant's disfigurement is 
 
            not repulsive, but it cannot be camouflaged.  Claimant's 
 
            diction has also suffered.  Paying close attention, this 
 
            observer was able to understand all of her testimony, except 
 
            for some problems when she spoke very softly.  But, although 
 
            it does not appear on the transcript, the court reporter at 
 
            hearing had great difficulty understanding claimant and 
 
            frequently asked her to repeat testimony.  The reporter did 
 
            not have similar problems with other witnesses.  Obviously, 
 
            at least some people can now (and for the foreseeable 
 
            future) be expected to have difficulty understanding 
 
            claimant's speech.
 
            
 
                 In any event, it is clear to this observer that 
 
            claimant has suffered an overwhelming and debilitating blow 
 
            to her self-esteem.  By all accounts, she was cheerful, 
 
            friendly and outgoing before November 3, 1987.  Now, she is 
 
            withdrawn and reclusive.  When Karen Hamilton applied for 
 
            work with Combined, she set forth on the application that 
 
            she wanted to work with the public and considered it a 
 
            strong point in her background.  Now, she will scarcely be 
 
            seen at all in public and even avoids family reunions due to 
 
            embarrassment at her disfigurement.  She feels that people 
 
            are horrified and stare at her.
 
            
 
                 In February 1990, claimant was given a psychological 
 
            evaluation by Kenneth Hayes, M.A.  A blind interpretation of 
 
            her Minnesota Multiphasic Personality Inventory by Mr. Hayes 
 
            was of a pathological profile:
 
            
 
                 Persons with profiles similar to this often 
 
                 experience problems with depression, lack of 
 
                 energy, apathy, and lowered self esteem.  They 
 
                 tend to feel helpless and hopeless with a negative 
 
                 view of themselves and of their future, and the 
 
                 world around them.  Since one of the most 
 
                 important components of their personalities is 
 
                 denial, they often have a difficult time facing 
 
                 up, or examining their dysphoric ideas and 
 
                 feelings.  They tend to have a perceptual style 
 
                 that screens out data that relates to their 
 
                 difficulties.  They tend to be dependent, and will 
 
                 often deny the press of problems relating to their 
 
                 social and marital adjustment.
 
            
 
                 Often persons with profiles similar to this have 
 
                 given up, and have resigned themselves to living 
 
                 with their unhappiness and their pain.
 
            
 
                 Mr. Hayes found claimant's intellectual functioning to 
 
            be in the low average to average range.  Her estimated score 
 
            of 84 placed her only in the 15th percentile compared to 
 
            other adults.  In summary, Hayes felt that claimant was 
 
            currently experiencing a depressive exacerbation of an 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
            
 
            underlying dysthymic personality secondary to a severe 
 
            disruption in her life plan and self image.  He felt this 
 
            exacerbation was such that she was no longer able to cope 
 
            with that underlying dysphoria, and that the fact that 
 
            claimant had been able previously to overcome dysphoria and 
 
            experience job success in spite of it further emphasized the 
 
            importance of her injury loss.  He wrote:
 
            
 
                 Existentially, she feels her life plans as they 
 
                 relate to her life goals, have been derailed by 
 
                 the assault on her and physicality and it has made 
 
                 her angry and bitter with an underlying feeling of 
 
                 helplessness in relation to herself, the world, 
 
                 and the future.  Much of her self image is tied 
 
                 into her view of herself as a physical, active 
 
                 socially outgoing person, and the injuries have 
 
                 severely limited her relation to this view of her 
 
                 strengths.
 
            
 
                 . . . .
 
            
 
                 Nonetheless it is quite evident that this will 
 
                 take a lot of physical and psychological 
 
                 intervention, and most likely quite a bit of time 
 
                 to accomplish.
 
            
 
                 Claimant's demeanor and testimony was consistent with 
 
            this evaluation.  She indicated that she felt useless and, 
 
            if her looks did not improve over the rest of her life, she 
 
            did not know what she would do.
 
            
 
                 Ms. Hamilton's face is numb from the right side of her 
 
            mouth on the bottom over her entire chin and cheek up to the 
 
            incision and over the nose to the incision on the right 
 
            upper lip.  When outside, even on a warm day, she feels the 
 
            breeze almost cutting through this numb area to the mouth.  
 
            Nonetheless, defendant wrung from her the concession that 
 
            there were "still a lot of places" on her face where she 
 
            could feel kisses from family members.
 
            
 
                 Following the November fall, claimant continued to 
 
            suffer lower back pain, but now cervical pain as well.  She 
 
            continued to see Dr. Audlehelm.  Although chiropractors are 
 
            not licensed to prescribe drugs, Dr. Audlehelm testified to 
 
            making an effort to familiarize himself with various 
 
            medications so as to know what effects might be present for 
 
            purposes of his own practice.  In his experience, other of 
 
            his patients have suffered dizziness and drowsiness while 
 
            taking Flexeril.  He opined that taking Flexeril 
 
            "contributed greatly" to claimant's November fall and 
 
            resulting injury.
 
            
 
                 Dr. Audlehelm continued to see claimant throughout 1987 
 
            and until February 29, 1988.  He did not see her again until 
 
            May, apparently the 14th.  Claimant complained of having 
 
            seen a Des Moines doctor on May 13 (Dr. Wirtz) who had 
 
            "pulled on her neck" causing increased stiffness and what 
 
            Dr. Audlehelm regarded as a regression.  He has continued 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
            
 
            performing maintenance treatment and believes that claimant 
 
            has progressed as far as she may be expected to with the 
 
            back condition.  He believes claimant to be suffering from 
 
            cervical and lumbar myofascitis and recurring subluxations 
 
            of the cervical and lumbar spine.  He would not recommend 
 
            that claimant engage in repetitive lifting, bending, 
 
            stooping or twisting because repetitive motions will 
 
            irritate and exacerbate her condition.  The same is true of 
 
            prolonged sitting, standing and driving.  He recommended a 
 
            maximum weight limitation of 20-25 pounds on an occasional 
 
            basis.  He testified to finding muscle spasm in the lumbar 
 
            and cervical spine areas, which he considered as objective 
 
            evidence of impairment.
 
            
 
                 Claimant was seen again on May 13, 1988 by Dr. Wirtz.  
 
            His history was that claimant stated that her hip had given 
 
            out causing the November fall.  He agreed that it was 
 
            "possible" that Flexeril had made claimant dizzy or 
 
            lightheaded and may have been involved in the fall, but 
 
            later testified that he uses "possible" as synonymous with 
 
            "unlikely."  However, his testimony as to that point on 
 
            cross-examination was somewhat evasive, grudging and 
 
            hostile.  Dr. Wirtz felt that claimant had no permanent 
 
            impairment resulting from the April 1987 injury and no 
 
            permanent restrictions.
 
            
 
                 Because claimant was dissatisfied with Dr. Wirtz's 
 
            treatment, she requested referral to another physician from 
 
            defendant.  She was thereafter seen beginning January 11, 
 
            1988 by Scott B. Neff, D.O.  Dr. Neff is an orthopaedic 
 
            surgeon and a Diplomate of the American Board of Orthopaedic 
 
            Surgery, a Fellow of the American Academy of Orthopaedic 
 
            Surgeons and a Fellow of the International College of 
 
            Surgeons in Orthopaedic Surgery.  Following the first 
 
            appointment, he recommended repeat CT scan or MRI study and 
 
            noted that "neurologic involvement of the leg or sudden pain 
 
            can certainly make the leg buckle."
 
            
 
                 Thereafter, magnetic resonance imaging did not show 
 
            pathology with reference to the lumbar spine and he saw no 
 
            disc rupture or degenerative disc disease of significance.  
 
            He believed that claimant had a myofascial syndrome and 
 
            referred her to Karen Kienker, M.D., in Dr. Neff's phrase, a 
 
            physical medicine "expert."  He gave no opinion as to 
 
            permanent impairment and left the question of a return to 
 
            work up to Dr. Kienker.
 
            
 
                 In a March 21, 1988 letter to claimant's attorney, Dr. 
 
            Neff expressed the following view:
 
            
 
                 Flexeril is a difficult medication.  Many patients 
 
                 who use it for "muscle relaxation" report 
 
                 significant sedation, dizziness, and even 
 
                 sometimes act as if they are unsteady on their 
 
                 feet.  If, for example, Flexeril were to be used 
 
                 with a pain medication, the affects [sic] of these 
 
                 two would definitely be added.  It certainly is 
 
                 possible that this medication did indeed cause her 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            
 
            
 
                 to be light headed enough or "wobbly" enough to 
 
                 fall and it is unfortunate that she had this 
 
                 significant injury to her face.  Obviously, I 
 
                 don't know the details of her fall and it may have 
 
                 been due to something else.  If she were simply 
 
                 walking on an even surface and did not trip or 
 
                 stumble on something and she says it was because 
 
                 she was light headed or unstable, then Flexeril 
 
                 would likely be implicated.  I have not checked 
 
                 her blood pressure.  The only other medical reason 
 
                 that I can think of immediately to cause that type 
 
                 of a symptoms [sic] would be either an irregular 
 
                 heart beat or what is called ortho-static 
 
                 hypotension.  Assuming that those are not present, 
 
                 then the Flexeril would be implicated.
 
            
 
                 The record does not indicate that claimant has a 
 
            history of irregular heart beat or ortho-static hypotension.
 
            
 
                 On January 11, 1988, Dr. Wilken wrote that he had no 
 
            way of knowing whether the November fall was in any way 
 
            related to the earlier back injury.
 
            
 
                 Thus, Dr. Wirtz finds it unlikely that the April back 
 
            injury (which, in his view, had cleared up prior to the 
 
            attempted August return to work) or dizziness relating to 
 
            Flexeril was causally related to the disastrous fall 
 
            claimant suffered in November 1987.  Dr. Wilken has no way 
 
            of knowing.  Dr. Audlehelm feels that Flexeril is clearly 
 
            indicated, but as a chiropractic physician, the effects of 
 
            prescription medications are largely outside his sphere of 
 
            expertise.  Given that claimant does not suffer irregular 
 
            heart beat or hypotension, Dr. Neff feels that Flexeril 
 
            "would likely be implicated."
 
            
 
                 Dr. Wirtz's testimony and opinion must be discounted.  
 
            His self-interest is at stake in this litigation, since it 
 
            is at least arguable that he may have personal liability by 
 
            exacerbating claimant's condition during evaluations in July 
 
            1987 and May 1988 and by giving claimant an open 
 
            prescription for Flexeril over a six-month time span in 
 
            contravention of Physician's Desk Reference recommendations.  
 
            In addition, he did not testify candidly concerning whether 
 
            claimant reported pain on July 1, 1987 when she left his 
 
            office in tears on her hurried way to a chiropractor.  A 
 
            reading of his deposition testimony indicates overtones of 
 
            hostility and evasiveness.
 
            
 
                 Given then the testimony of Dr. Audlehelm and Dr. Neff, 
 
            given further claimant's history of dizziness when taking 
 
            Flexeril and her credible testimony as to feeling dizzy and 
 
            having her right leg give way when she fell and given also 
 
            that Dr. Kienker has found a trigger point in the right 
 
            buttock, all of which are consistent with the theory that 
 
            claimant's November 1987 fall was causally related both to 
 
            ongoing leg or hip symptomatology residual to the April 
 
            incident and light-headedness related to Flexeril prescribed 
 
            because of that incident, it is held that the November fall 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            
 
            
 
            and resulting injuries bear a substantial causal 
 
            relationship to the previous injury and medical treatment 
 
            provided by reason of that injury.
 
            
 
                 As has been seen, Dr. Neff referred claimant to Karen 
 
            Kienker, M.D., who saw Karen Hamilton first on July 12, 
 
            1988.  Dr. Kienker is a physiatrist, board certified in 
 
            physical medicine and rehabilitation, and testified by 
 
            deposition on May 3, 1990.
 
            
 
                 Dr. Kienker diagnosed claimant as suffering myofascial 
 
            pain syndrome involving the low back, right buttock and 
 
            neck.  She noted that myofascial pain results from damage to 
 
            the soft tissue or muscle damage and that there are some 
 
            characteristic physical findings consistent with myofascial 
 
            pain syndrome, particularly including trigger points or 
 
            tender nodules in the muscle.  If pressed, they cause pain 
 
            and if pressed hard enough, will often shoot or refer pain 
 
            some distance.  She specifically found a trigger point in 
 
            claimant's right hip.  She also believed claimant suffered 
 
            muscle spasm to the back.
 
            
 
                 Dr. Kienker prescribed a combination of ultrasound and 
 
            stretching which did result in improving claimant's range of 
 
            motion of the neck and flexibility in the upper body, but 
 
            had a negative effect lower.
 
            
 
                 In a report dated April 17, 1990, Dr. Kienker rated 
 
            claimant's impairment as 15 percent of the body as a whole 
 
            based on impairment to the lumbar spine and 14 percent of 
 
            the body as a whole based on impairment to the hip.  
 
            Although Dr. Kienker apparently believed there was also 
 
            impairment to the neck, she did not rate impairment of the 
 
            cervical spine.  Dr. Kienker causally related these 
 
            impairments to the original work injury in April 1987.  
 
            Recommended restrictions were:
 
            
 
                 The patient should be capable of employment which 
 
                 is within her physical restrictions.  She needs a 
 
                 job which will allow her to alternate sitting, 
 
                 standing and walking at will.  She needs a variety 
 
                 of light duties allowing a variety of light 
 
                 positions.  She may lift up to ten pounds on an 
 
                 occasional basis.  She should avoid any bending, 
 
                 tilting head forward over her work, tilting her 
 
                 head backwards, working with arms unsupported out 
 
                 in front of her, working in cold places and 
 
                 repetitive shoulder movements.  She should have 
 
                 only occasional squatting, rotating of the head, 
 
                 side bending of the head, or reaching above 
 
                 shoulder level.  These are expected to be 
 
                 permanent restrictions.
 
            
 
                 Combined Insurance Company of America does not have a 
 
            policy favoring accommodation of disabled employees.  On 
 
            November 18, 1987, claimant was discharged because of her 
 
            disability.  The discharge was made retroactive to November 
 
            3, 1987, the date of claimant's disastrous fall.  Defendant 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            
 
            
 
            first learned of this fall on November 17, 1987, the day 
 
            prior to discharge.  Kathleen Runyan, administrative 
 
            assistant, testified that it was "coincidence" that the 
 
            discharge was backdated to November 3.  That assertion lacks 
 
            credibility.
 
            
 
                 Jeff Johnson, a certified rehabilitation counselor 
 
            retained for evaluation and opinion only, testified that 
 
            there were several jobs claimant could perform given her 
 
            educational and vocational history and the physical 
 
            restrictions imposed by Dr. Kienker.  However, all of these 
 
            positions would require selective placement so as to allow 
 
            claimant to alternate her position at will.  These positions 
 
            include cashier, secretary, sales clerk, bookkeeper, office 
 
            or accounting clerk and hand packager.  He noted that Dr. 
 
            Peterson's restriction would eliminate those jobs involving 
 
            public exposure, such as cashier and sales clerk.  He 
 
            further noted that job applicants far outnumbered openings 
 
            for bookkeeper, accounting clerk or hand packager in 
 
            claimant's geographical locale during calendar year 1989, 
 
            pursuant to Job Service of Iowa statistics.
 
            
 
                                conclusions of law
 
            
 
                 The parties have stipulated that the April 17, 1987 
 
            injury arose out of and in the course of employment.  
 
            However, they very much dispute whether the November 3, 1987 
 
            injury arose out of or is causally connected to employment.  
 
            Where treatment rendered with respect to a compensable 
 
            injury itself causes further injury, the subsequent injury 
 
            is also compensable.  Yount v. United Fire & Casualty Co., 
 
            256 Iowa 813, 129 N.W.2d 75 (1964).  Determination of that 
 
            necessary causal nexus is essentially within the domain of 
 
            expert medical testimony, although expert testimony that a 
 
            mere possibility of a causal relationship may be sufficient 
 
            if coupled with non-expert testimony that no preexisting 
 
            condition was involved.  Bradshaw v. Iowa Methodist Hosp., 
 
            251 Iowa 375, 101 N.W.2d 167 (1960).  Claimant's November 
 
            1987 fall came about through a combination of her right leg 
 
            giving way, probably related to continuing weakness and the 
 
            trigger point in her buttock, and because of dizziness.  
 
            Karen Hamilton had no history of dizziness prior to 
 
            beginning a regimen of Flexeril.  Dizziness is a known side 
 
            effect of Flexeril, and a condition claimant had regularly 
 
            experienced while using that medication, beginning from the 
 
            first use.  Dr. Audlehelm saw a causal relationship between 
 
            Flexeril and dizziness, although this is somewhat beyond his 
 
            area of expertise.  Dr. Neff felt the relationship was 
 
            likely, given no preexisting history of irregular heart beat 
 
            or hypotension.  Claimant has no such history.  A 
 
            possibility that a causal nexus exists is insufficient to 
 
            meet claimant's burden of proof; a probability is necessary.  
 
            Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 
 
            N.W.2d 732 (1955).  The opinion of experts, however, need 
 
            not be couched in definite, positive or unequivocal 
 
            language.  Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 
 
            1974).  The only contrary medical evidence is that of Dr. 
 
            Wirtz, and as has been seen, his testimony is 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            
 
            
 
            self-interested.  The opinion of Dr. Neff is more 
 
            persuasive.  Claimant has met her burden of proof in 
 
            establishing that the November fall and resulting injuries 
 
            are causally related as a sequela to the work injury of 
 
            April 17, 1987.
 
            
 
                 Defendant asserts that claimant's facial injuries must 
 
            be compensated as a scheduled member disability under Iowa 
 
            Code section 85.34(2)(t).  However, claimant's disfigurement 
 
            and resulting psychological damage are a sequela of the 
 
            April injury which is concededly to be compensated 
 
            industrially.  As a sequela, the November fall must be 
 
            treated as part of the original injury.  If a worker were to 
 
            receive an injury causing disability to the back and one 
 
            finger, it is not the case that the finger is to be 
 
            separately compensated pursuant to the schedule.  Rather, 
 
            the entire injury is compensated industrially.  It makes no 
 
            sense to treat claimant's injuries in any different fashion.  
 
            In determining compensation, those injuries should be viewed 
 
            as a unified whole.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, 1985).
 
            
 
                 Claimant was previously employed as a nurse's aide.  A 
 
            ten-pound lifting restriction imposed by Dr. Kienker clearly 
 
            bars that work and many other potential jobs.  Work as a 
 
            bookkeeper or secretary is probably barred by restrictions 
 
            against hunching forward and would require a very 
 
            accommodating employer indeed to allow claimant to alter her 
 
            position at will.  Claimant might well be able to physically 
 
            withstand a job as a sales clerk if given an accommodating 
 
            employer who would let her sit, stand and walk at will, but 
 
            her facial disfigurement would without question be 
 
            distracting to some members of the public and can reasonably 
 
            be expected to impair her effectiveness and also her 
 
            attractiveness to potential employers.  Witness, for 
 
            example, the conduct of Combined Insurance Company of 
 
            America:  discharging claimant retroactive to the very day 
 
            of her disfigurement.  Dr. Kienker's other restrictions are 
 
            very severe.  In addition, it must not be forgotten that 
 
            claimant has suffered a devastating blow to her psyche.  The 
 
            damage is industrially disabling.  Where once claimant was 
 
            warm and outgoing, she is now shy and withdrawn.  Given the 
 
            gravity of this physical insult, it would be harsh indeed to 
 
            demand that Karen Hamilton, unable even to face her family 
 
            reunion, go out and cheerfully greet the public as a sales 
 
            clerk (or insurance salesperson) is required to do.  Dr. 
 
            Peterson did not believe his patient capable of facing the 
 
            public, and this opinion is backed up by the psychological 
 
            evaluation performed by Kenneth Hayes.  It is even more 
 
            convincingly demonstrated by claimant's demeanor and 
 
            testimony.
 
            
 
                 It is to be hoped that one day Ms. Hamilton will find 
 
            it within herself to overcome this tragedy and regain her 
 
            spirit.  Perhaps further healing will permit employment.  If 
 
            so, review-reopening is available to defendant.  As of now, 
 
            claimant is totally disabled and can be expected to remain 
 
            so for the foreseeable future.  A permanent disability is 
 
            one that is expected to last for an indefinite or 
 
            indeterminable period and does not require proof of absolute 
 
            perpetuity.  Wallace v. Brotherhood, 230 Iowa 1127, 300 N.W. 
 
            322 (1941).
 
            
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Claimant also seeks medical benefits under Iowa Code 
 
            section 85.27.  Defendant concedes the costs are reasonable 
 
            and the services were themselves reasonably related to 
 
            claimant's condition.  Causal connection to the subject 
 
            injuries has been established as per the foregoing analysis.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 In file number 877068, claimant shall take nothing.
 
            
 
                 In file number 854465:
 
            
 
                 Defendant shall pay unto claimant permanent total 
 
            disability benefits at the stipulated rate of one hundred 
 
            seventy-five and 66/100 dollars ($175.66) per week 
 
            commencing April 17, 1987 and continuing during such time as 
 
            she shall remain totally disabled.
 
            
 
                 Defendant shall have credit for all voluntary payments.
 
            
 
                 All accrued benefits shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 Defendant shall pay claimant medical benefits pursuant 
 
            to her hearing submission of disputed medical costs.
 
            
 
                 The costs of this action shall be assessed to defendant 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendant shall file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Steven C. Jayne
 
            Attorney at Law
 
            5835 Grand Avenue
 
            Suite 201
 
            Des Moines, Iowa  50312
 
            
 
            Mr. Helmut A. Mueller
 
            Attorney at Law
 
            RR 5
 
            Osceola, Iowa  50213
 
            
 

 
            
 
            Page  18
 
            
 
            
 
            
 
            
 
            
 
            
 
            Mr. Harry W. Dahl
 
            Attorney at Law
 
            974 73rd Street
 
            Suite 16
 
            Des Moines, Iowa  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      1804
 
                      Filed April 30, 1991
 
                      PATRICIA J. LANTZ
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            DOROTHY FLEMING,    :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 854592 
 
            BLACK HAWK COUNTY,  :
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            UNITED STATES FIDELITY AND    :
 
            GUARANTY COMPANY,   :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            1804
 
            Claimant sustained an injury to her neck which resulted in 
 
            surgery and a permanent impairment of 22 percent.
 
            The surgery provided less than stellar results, and claimant 
 
            developed severe psychological problems, which three 
 
            psychiatrists related to the original neck injury.
 
            At the time of the hearing, claimant had been admitted for 
 
            psychiatric observations on six (6) occasions.  She produced 
 
            seven of eight prescription drugs used to treat her 
 
            psychiatric disorder.
 
            Claimant found permanently, totally disabled.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   
 
         
 
                        BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOHN C. MAYER,                              File No. 854997
 
         
 
              Claimant,                           A R B I T R A T I O N
 
         
 
         vs.                                         D E C I S I O N
 
         
 
         ALUMINUM COMPANY OF AMERICA,                   F I L E D
 
         
 
              Employer,                                SEP 28 1989
 
              Self-Insured,
 
              Defendant.                           INDUSTRIAL SERVICES
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by claimant John 
 
         C. Mayer against self-insured defendant employer Aluminum Company 
 
         of America to recover benefits under the Iowa Workers' 
 
         Compensation Act as the result of an injury sustained on April 
 
         10, 1987.  This matter came on for hearing before the undersigned 
 
         deputy industrial commissioner in Davenport, Iowa, on September 
 
         22, 1989.  The matter was considered fully submitted at the close 
 
         of hearing.  The record consists of joint exhibits 1 through 5 
 
         and 7 through 10 and the testimony of the following witnesses: 
 
         Claimant, Jack Peterschmidt, George Pratt and Margaret Kundel.
 
         
 
                                 ISSUES
 
         
 
              Pursuant to the prehearing report submitted and approved at 
 
         hearing, the parties have stipulated:  To the existence of an 
 
         employment relationship at the time of the injury; that claimant 
 
         seeks healing period or temporary total disability benefits from 
 
         April 10, 1987 through June 1, 1987; that if permanent disability 
 
         benefits are awarded, the commencement date is June 1, 1987; that 
 
         if a permanent disability is found to be causally connected to a 
 
         work-related injury, claimant has suffered a scheduled member 
 
         disability to the leg; that the appropriate amount of weekly 
 
         compensation is $330.32; that affirmative defenses have been 
 
         waived; that all requested medical benefits have been or will be 
 
         paid by defendant; that defendant is entitled to credit under 
 
         Iowa Code section 85.38(2) in the sum of $1,762.29.
 
         
 
              Issues identified as requiring resolution include:  Whether 
 
         claimant sustained an injury on April 10, 1987, arising out of 
 
         and in the course of his employment; whether the alleged injury 
 
         caused temporary or permanent disability; the extent of 
 
         claimant's entitlement to compensation for temporary total 
 
         disability, healing period and/or permanent disability; taxation 
 
         of costs.
 
         
 
                                                
 
                                                         
 
                           REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified to being a long-term employee of 
 
         defendant.  On the day of his injury, he worked the day shift. 
 
         Following work, claimant went by himself to the defendant-owned 
 
         parking lot where he parked.  While walking through the lot, he 
 
         turned a corner, stepped in a pothole and fell when his knee 
 
         "popped."  He got up, drove home and saw a physician later that 
 
         day.
 
         
 
              Claimant testified that he did call to advise the employer 
 
         of his fall.  However, he denies relating his story as it was 
 
         written down on April 16, 1987 in the injury and illness record 
 
         constituting exhibit 1.
 
         
 
              Claimant testified that he was referred by defendant to J. 
 
         R. Lee, M.D.  He testified that he advised Dr. Lee how the injury 
 
         occurred, and specifically that he told the physician about the 
 
         hole in the parking lot, although this was not noted in Dr. Lee's 
 
         medical report.
 
         
 
              Claimant further testified that he had suffered no prior 
 
         problems to his left knee before the accident, and had never been 
 
         advised of an arthritic or degenerative condition, although the 
 
         medical records reflect that claimant did suffer from advanced 
 
         degenerative problems in the knee.  He had seen orthopaedic 
 
         physicians twice before, once for his elbow and once for his 
 
         arm.
 
         
 
              On cross-examination, claimant testified that he spoke to 
 
         George Pratt concerning the incident, but was unsure whether he 
 
         had specifically mentioned the existence of the pothole.  He did 
 
         not recall Mr. Pratt asking if there was such a defect in the 
 
         parking lot.  However, claimant later in that cross-examination 
 
         specified that he in fact had told Pratt that he fell in a hole. 
 
         Further, he insisted that he told the medical department on April 
 
         16 about the parking lot pothole.  Claimant also noted that he 
 
         has a hearing loss and occasionally misses words in telephone 
 
         conversations.
 
         
 
              Claimant also testified that he has not been assigned 
 
         medically-imposed restrictions or physical limitations resulting 
 
         from his injury, and that he is able to climb 57 steps and go 
 
         down 10 rungs to a crane he operates at work up to four times per 
 
         day without problems and that this substantial climbing does not 
 
         cause pain.
 
         
 
              Jack Peterschmidt testified that he also is a long-term 
 
         employee of Alcoa and that he normally commutes to work with 
 
         claimant, although he did not on the day of the injury.  He 
 
         further specified that the Alcoa parking lot was afflicted with 
 
         potholes at the time of this injury and further advised that 
 
         claimant had described the injury within a day or so as having 
 
         occurred when he stepped in a pothole.  Mr. Peterschmidt also 
 
         indicated that he had advised claimant to consider filing a 
 
                                                
 
                                                         
 
         workers' compensation claim by reason of this injury.
 
         
 
              George Pratt testified that he had responsibilities in the 
 
         fields of safety, health, environment and workers' compensation 
 
         in 1987.  Mr. Pratt indicated that he had telephoned claimant on 
 
         April 16, 1987, and that claimant had advised that he was walking 
 
         around a car and that his knee "gave out."  Mr. Pratt described 
 
         himself as specifically questioning claimant as to whether he had 
 
         slipped, tripped, or caught his foot in a hole (although he later 
 
         testified only to being "almost positive" concerning the pothole 
 
         inquiry).  He described claimant as denying any of the above and 
 
         repeating that his knee just gave out.  Pratt further testified 
 
         that in this conversation he specifically told claimant that if 
 
         there was nothing wrong with the parking lot that defendant would 
 
         treat the incident as "personal," meaning not a workers' 
 
         compensation injury.  Pratt agreed that he did not keep notes of 
 
         this telephone conversation, but made notes approximately one 
 
         month later.
 
         
 
              On examination by defense attorney, Mr. Pratt specified that 
 
         if claimant had mentioned a slip in a pothole, he would have 
 
         caused the parking lot to be checked out for safety problems. 
 
         Further, he noted that claimant did not attempt to convince him 
 
         of the work-relatedness of this injury even after he advised 
 
         claimant that it would be treated as personal.  Pratt also 
 
         believed that he and claimant were adequately communicating and 
 
         understanding one another during this conversation.
 
         
 
              Margaret Kundel testified to being a registered nurse who 
 
         had worked for defendant some 16 years.  She described the injury 
 
         and illness record as a normal business record in which all 
 
         personal illness contacts with employees are noted.  If employees 
 
         claim a work injury, a different report (injury, illness and 
 
         incident report) is prepared.  She noted that the regular illness 
 
         report was prepared in this instance.  Ms. Kundel testified that 
 
         claimant stated that he felt his knee "pop" as he was walking 
 
         around a car and that she would normally have asked claimant if 
 
         he had fallen or suffered any direct trauma to the knee.  The 
 
         implication, of course, is that claimant made no such claim in 
 
         the April 16 telephone conversation.  Kundel further testified 
 
         that her duties with regard to charting include setting forth as 
 
         accurately as possible what an employee states.  However, on 
 
         cross-examination, Ms. Kundel agreed that the injury, illness and 
 
         incident report is used only when an application is made in 
 
         person.  Further, she admitted to being unsure whether claimant 
 
         had been specifically asked during the telephone conversation 
 
         whether he had suffered direct trauma to the knee.
 
         
 
              The illness and injury record prepared on April 16, 1987, 
 
         stated in pertinent part:
 
         
 
              Empl's call transferred from Jonell (Safety) to Medical. 
 
              Empl said someone at Alcoa told him to file Worker's Comp 
 
              re:  injury to left knee occurred on April 10th.  States he 
 
              was walking around a car in Alcoa parking lot after work & 
 
                                                
 
                                                         
 
                   felt his knee 'pop'.  He could not even get out the car & 
 
              was seen by Dr. Cassel that day by 4PM.  Denies any direct 
 
              trauma or injury to his knee.
 
         
 
              J. R. Lee, M.D., prepared a medical report on December 27, 
 
         1988.  Dr. Lee notes that claimant's history was that of hurting 
 
         his left knee in the parking lot after work.  The report does not 
 
         make mention of any pothole incident.  Dr. Lee also noted that 
 
         claimant denied any history of giving way or effusion.
 
         
 
              Dr. Lee diagnosed degenerative arthritis of the left knee 
 
         and torn medial meniscus treated by menisectomy.  He concluded 
 
         that the torn meniscus was most likely a work-related injury, but 
 
         stated that the degenerative change was a preexisting condition. 
 
         Dr. Lee concluded that claimant would have a 10 percent 
 
         functional deficit to the left knee.
 
         
 
              Claimant was also seen by Charles T. Cassel, M.D.  Dr. 
 
         Cassel first saw claimant on the date of injury and performed 
 
         surgery to the left knee four days later.  His original notes 
 
         state:
 
         
 
              The patient called in today because of acute locking and 
 
              pain in the left knee.  The patient is a 57 year old laborer 
 
              who states he was walking across the parking lot today when 
 
     
 
                   
 
                                                         
 
              he fell and heard a pop in his knee with pain along the 
 
              medial and anterior medial aspect of the knee.
 
         
 
              After surgery, Dr. Cassel diagnosed varus knee with severe 
 
         degenerative osteoarthritis, medial compartment and significant 
 
         severe patellofemoral chondrosis.
 
         
 
              In a letter to claimant's attorney of March 23, 1988, Dr. 
 
         Cassel noted that claimant did not have any history of problems 
 
         prior to his twisting or falling episode in the parking lot and 
 
         that the fall or twisting episode was the acute cause of the 
 
         locked knee, swelling and displaced meniscus tear.  In another 
 
         letter of March 28, 1989, Dr. Cassel stated:
 
         
 
              With regard to his impairment rating, I would give him a 10% 
 
              impairment of his left lower extremity for loss of his 
 
              medial meniscus.  He does have extensive degenerative 
 
              changes in the medial compartment and the patellofemoral 
 
              joint which have been visualized at the time of arthroscopy 
 
              and I would give him a 20% impairment of his left lower 
 
              extremity based on the arthritic changes of the 
 
              patellofemoral joint and medial compartment.  Combining 
 
              these two would give him a 30% impairment of his left lower 
 
              extremity which would equal 12% impairment of his whole 
 
              person.
 
         
 
              One could argue that because of his mild varus deformity 
 
              some of the degenerative changes may have been present prior 
 
              to his fall and displaced meniscus tear, but certainly the 
 
              fall and the further tearing of his meniscus has accelerated 
 
              the degenerative changes in his medial compartment and 
 
              possibly his patellofemoral joint.
 
         
 
              Mr. Mayer appears to be functioning at a fairly high level 
 
              with some aching discomfort with prolonged standing and 
 
              walking.  I feel that as he gets older he may experience 
 
              more difficulty with his knee and I feel that he will 
 
              probably someday come to a total joint replacement of his 
 
              knee.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
                                                
 
                                                         
 
         N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 
 
         246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it."  Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979); McClure v. Union et al. Counties, 188 
 
         N.W.2d 283 (Iowa 1971); Musselman v. Central Telephone Co., 261 
 
         Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The concepts of "arising out of" and "in the course of". 
 
         employment are separate and distinct; each must be established 
 
         for claimant to prevail.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
         Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              Claimant's fall occurred in a parking lot operated by 
 
         defendant.  In Shipley v. Barker Products Corp., I Iowa 
 
         Industrial Commissioner Report, 306 (1981), claimant was injured 
 
         in a fall in the employer's parking lot after work, the same as 
 
         is here the case.  Pursuant to Iowa Code section 85.61, injuries 
 
         arising out of and in the course of employment are defined as 
 
         including injuries to employees whose services are being 
 
         performed on, in or about premises which are occupied, used or 
 
         controlled by the employer.  Citing Frost v. S. S. Kresge, 299 
 
         N.W.2d 646 (Iowa 1980) for the proposition that the Workers' 
 
         Compensation Act provides coverage when the injury is closely 
 
         connected in time, location and employee usage to the work 
 
         itself, it was held that claimant's injury arose in the course of 
 
         employment.
 
         
 
              The evidence in this case is undisputed that claimant 
 
         suffered his injury in a fall following work in a parking lot 
 
         controlled by defendant employer.  It is held that this injury 
 
         occurred in the course of claimant's employment.
 
         
 
              Yet, was the injury arising out of that employment?  An 
 
         idiopathic fall (one caused by obscure or unknown factors) is not 
 
         compensable because it does not arise out of the employment 
 
         relationship.  However, it is generally agreed that if the fall 
 
         occurs because of claimant being placed in a position by his 
 
         employment which aggravates the effects of the fall or increases 
 
         the risk of a fall, the opposite result obtains.  Masbruch v. 
 
         John Deere Dubuque Works, 1-3 Industrial Commissioner Decisions, 
 
         628 (1985).  Therefore, the controlling issue in determining 
 
         whether claimant's fall arose out of his employment relates to 
 
         whether the risk of a fall was increased by the claimed defect in 
 
         the employer's parking lot on April 10, 1987.
 
         
 
              This is essentially a question of credibility.  Claimant 
 
         testified unequivocally that he fell because he stepped into a 
 
                                                
 
                                                         
 
         pothole.  That testimony is corroborated by Jack Peterschmidt, 
 
         who testified directly that claimant stated he had stepped in a 
 
         hole only a day or two after his injury.  While it might be 
 
         pointed out that claimant has an incentive to manufacture a 
 
         pothole without which there can be no recovery, the same is not 
 
         true of Peterschmidt.  While Peterschmidt is obviously on 
 
         friendly terms with claimant, having commuted with him for so 
 
         many years, he is also still employed by defendant and presumably 
 
         wishes to maintain that employment relationship.  It is 
 
         specifically found that Peterschmidt is a credible witness, and 
 
         that claimant likewise was credible in his description of the 
 
         fall.
 
         
 
              It does not appear that claimant made known exactly how he 
 
         fell to medical practitioners, since the pothole is not mentioned 
 
         in medical records.  Similarly, claimant did not mention the 
 
         pothole when he called the medical department six days after his 
 
         injury.  However, there is no particular reason to believe that 
 
         claimant would have been aware at that early date the 
 
         significance of a defect in the parking lot that would have 
 
         increased his risk of falling, and for that reason, it would not 
 
         be appropriate to conclusively imply the absence of a pothole 
 
         from his failure to mention it.
 
         
 
              George Pratt was also a credible witness.  It is 
 
         disconcerting that claimant did not mention the pothole to him. 
 
         While Mr. Pratt was "almost positive" that he had specifically 
 
         asked about a hole or other defect, he is not absolutely positive 
 
         that he did so, and his notes of the conversation were not made 
 
         until approximately one month later.  Although the question is 
 
         close, it is held that claimant's fall was caused by stepping 
 
         into a pothole, said pothole having increased the risk of injury.  
 
         The fall was not idiopathic, and arose out of the employment 
 
         relationship.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of April 10, 1987 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
                                                
 
                                                         
 
         expert and other surrounding circumstances.. Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The medical evidence is undisputed that a causal 
 
         relationship exists between claimant's fall and his claimed 
 
         disability, although the evidence is in dispute as to the extent 
 
         of that disability.  Claimant has met his burden of proof in 
 
         establishing that causal relationship.
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756 (1956).  
 
         If the claimant had a preexisting condition or disability that is 
 
         aggravated, accelerated, worsened or lighted up so that it 
 
         results in disability, claimant is entitled to recover.  Nicks v 
 
         Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962).
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent.of the impairment.  Ziegler v. United 
 
         States. Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960).
 
         
 
              The Iowa Supreme Court cites, apparently with approval, the 
 
         C.J.S. statement that the aggravation should be material if it is 
 
         to be compensable.  Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's 
 
         Compensation section 555(17)a.
 
         
 
              An 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 
 
 
 
                   
 
                                                         
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
         Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 
 
         299 (1961); Ziegler v. United States Gypsum Co., 252 Iowa 613, 
 
         106 N.W.2d 591 (1960).  See also Barz v. Oler, 257 Iowa 508, 133 
 
         N.W.2d 704 (1965); Almquist.v. Shenandoah Nurseries, 218 Iowa 
 
         724, 254 N.W. 35 (1934).
 
         
 
              Dr. Lee found a 10 percent functional deficit to the left 
 
         knee based on claimant's torn meniscus.  However, he found the 
 
         degenerative change in claimant's knee to be a preexisting 
 
         condition.  On the other hand, treating surgeon Dr. Cassel also 
 
         found a 10 percent impairment of the left lower extremity for 
 
         loss of the meniscus, but found an additional 20 percent 
 
         impairment due to the extensive degenerative and arthritic 
 
         changes of the patellofemoral joint and medial compartment.  Dr. 
 
         Cassel was of the view that while some of the degenerative 
 
         changes "may have been present prior to" the fall, the fall and 
 
         tearing of claimant's meniscus accelerated those degenerative 
 
         changes.
 
         
 
              As the case law cited above indicates, claimant can recover 
 
         for an aggravation of a preexisting injury which results in 
 
         disability that previously did not exist.  However, it is unclear 
 
         what additional disability claimant has actually suffered at the 
 
         present time.  Speculation as to such future problems as 
 
         potential knee replacement is simply that:  speculation.  As such 
 
         it is not compensable at this time.  What is significant is that 
 
         claimant has absolutely no medically imposed restrictions and 
 
         clearly has very good use of his knee, as shown by his ability to 
 
         climb extensive numbers of stairs and ladder rungs on a daily 
 
         basis. That is to say, there does not appear to be further 
 
         disability to any measurable extent.  As both physicians agree 
 
         that claimant has a 10 percent functional deficit by reason of 
 
         his torn meniscus, he shall be awarded 10 percent of the leg as a 
 
         scheduled member injury.
 
         
 
              Healing period under Iowa Code section 85.34(1) runs from 
 
         the date of injury until the employee has returned to work or it 
 
         is medically indicated that significant improvement is not 
 
         anticipated or until the ability to return to substantially 
 
         similar employment is attained, whichever first occurs.  Claimant 
 
         was released to return to work on May 27, 1987, which ended his 
 
         healing period.
 
         
 
                            FINDINGS OF FACT
 
         
 
              THEREFORE, based on the evidence presented, the following 
 
         ultimate facts are found:
 
         
 
              1.  On April 10, 1987, claimant was employed at Aluminum 
 
         Company of America in the state of Iowa.
 
         
 
              2.  On that date, claimant fell in a parking lot controlled 
 
         by defendant employer immediately after work.
 
         
 
                                                
 
                                                         
 
              3.  Claimant's fall was caused by stepping into a pothole in 
 
         the parking lot, which directly increased his risk of injury.
 
         
 
              4.  Claimant suffered a 10 percent functional deficit and 
 
         impairment to the left lower extremity by reason of his 
 
         work-related fall.
 
         
 
              5.  Claimant was disabled from April 10, 1987 until he was 
 
         released to return to work on May 27, 1987 (6 weeks, 6 days).
 
         
 
              6.  Claimant's proper rate of weekly compensation has been 
 
         stipulated to be $330.32.
 
         
 
                           CONCLUSIONS OF LAW
 
         
 
              WHEREFORE based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant suffered an injury arising out of and in the 
 
         course of his employment on April 10, 1987.
 
         
 
              2.  Claimant's injury was an injury to his left leg, a 
 
         scheduled member.
 
         
 
              3.  Claimant's injury directly caused a healing period from 
 
         April 10, 1987 through May 27, 1987 (6 weeks, 6 days).
 
         
 
              4.  Defendant is entitled to credit under Iowa Code section 
 
         85.38(2) in the sum of $1,762.29.
 
         
 
              5.  Claimant has established a permanent partial disability 
 
         of 10 percent of the left,leg, the commencement date being May 
 
         28, 1987.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendant is to pay unto claimant six point eight five seven 
 
         (6.857) weeks of healing period benefits at the stipulated rate 
 
         of three hundred thirty and 32/100 dollars ($330.32) per week 
 
         payable commencing April 10, 1987 and totalling two thousand two 
 
         hundred sixty-five and 00/100 dollars ($2,265.00).
 
         
 
              Defendant is to pay unto claimant twenty-two (22) weeks of 
 
         permanent partial disability benefits at the stipulated rate of 
 
         three hundred thirty and 32/100 dollars ($330.32) per week 
 
         payable commencing May 28, 1987 and totalling seven thousand two 
 
         hundred sixty-seven and 04/100 dollars ($7,267.04).
 
         
 
              Defendant shall receive credit under Iowa Code section 
 
         85.38(2) in the sum of one thousand seven hundred sixty-two and 
 
         29/100 dollars ($1,762.29).
 
         
 
              Because all benefits have accrued as of the date of this 
 
                                                
 
                                                         
 
         decision, they shall be paid in a lump sum together with 
 
         statutory interest pursuant to Iowa Code section 85.30.
 
         
 
              Costs of this action are assessed to defendant pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendant shall file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and.filed this 28th day of September, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                        
 
                                            DAVID RASEY
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Michael W. Liebbe
 
         Attorney at Law
 
         116 East 6th Street
 
         P.O. Box 339
 
         Davenport, Iowa  52805
 
         
 
         Mr. Thomas N. Kamp
 
         Attorney at Law
 
         600 Davenport Bank Building
 
         Davenport, Iowa  52801
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    
 
                                                1104, 1402.30
 
                                                Filed  September 28, 1989
 
                                                DAVID RASEY
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOHN C. MAYER,
 
         
 
              Claimant,                              File No. 854997
 
         
 
         vs.                                      A R B I T R A T I O N
 
         
 
         ALUMINUM COMPANY OF AMERICA,                D E C I S I O N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         1104, 1402.30
 
         
 
              Knee injury caused by stepping in pothole after work in 
 
         employer-maintained parking lot arose out of employment because 
 
         the pothole increased the risk of injury.