BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         NICHOLAS G. ZEMBA,
 
         
 
              Claimant,
 
                                                      File No. 856397
 
         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.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by claimant, 
 
         Nicholas G. Zemba, against self-insured defendant employer, 
 
         Aluminum Company of America, to recover benefits under the Iowa 
 
         Workers' Compensation Act as the result of an injury which 
 
         allegedly occurred on October 15, 1987.  This matter came on for 
 
         hearing before the undersigned deputy industrial commissioner on 
 
         November 28, 1988 in Davenport, Iowa, and was considered fully 
 
         submitted on that date.  Claimant appeared pro se.  Defendant 
 
         appeared by attorney John Telleen.
 
         
 
              The evidence in this case consists of claimant's exhibits 1 
 
         through 3, defendant's exhibits 1 through 5 and the testimony of 
 
         the following witnesses:  Claimant, Lucien DeDecker, Sylvester 
 
         Casta, Patricia Cahill and Robert Grubb.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the pre-hearing report approved by the deputy at 
 
         hearing, the following issues remain for determination:  Whether 
 
         claimant sustained an injury on October 13, 1987 which arose out 
 
         of and in the course of employment; whether the alleged injury 
 
         caused a period of temporary disability; claimant's entitlement 
 
         to temporary total disability (stipulated to be from October 16, 
 
         1987 through November 2, 1987); claimant's entitlement to medical 
 
         benefits; taxation of costs.  Defendant attempted to raise a 
 
         defense based on Iowa Code section 85.39.  The defense was ruled 
 
         out of order since this was not identified as an issue at the 
 
         time of the pre-hearing conference.
 
         
 
                                REVIEW OF EVIDENCE
 
         
 
              Claimant testified that he is employed by Aluminum Company 
 
         of America as a general mechanic, and has been since 1977.  He 
 
         testified that he suffered an injury on October 15, 1987 while 
 
         working when he jumped down to a steel platform some four feet 
 
         below floor level.  He indicated that he suffered an immediate 
 
         sharp pain to the scrotum.
 
         
 
              Claimant testified that he continued working, but left after 
 
         approximately two hours.  On cross-examination, it came out that 
 
         he left for prearranged personal reasons.  On the following day 
 
         he saw his family physician, Richard B. Kasper, M.D.  Dr. Kasper 
 
         also referred claimant to James A. Holte, M.D., a urological 
 
         specialist.
 
         
 

 
              
 
         ZEMBA V. ALUMINUM COMPANY OF AMERICA     
 
         PAGE 2
 
 
 
              
 
              
 
              Claimant was off work until November 2, 1987 because of what 
 
         was diagnosed as epididymitis of the left testis.  Claimant was 
 
         treated with bedrest, antibiotics and pain relief medication.  It 
 
         is stipulated that he suffered no permanent disability resulting 
 
         from this incident.
 
         
 
              Lucian DeDecker was a co-worker and agreed that claimant 
 
         jumped down some four feet to a steel platform in a pit and that 
 
         he immediately complained of pain, having expressed no prior 
 
         complaints.  He also indicated that claimant was less able to 
 
         move gracefully following this incident.
 
         
 
              Sylvester Casta, M.D., testified that he is local medical 
 
         director of Aluminum Company of America with responsibilities for 
 
         administration and treatment.  He testified that he did not 
 
         examine claimant following his injury because claimant refused an 
 
         examination or treatment, preferring to see his personal 
 
         physician.  He further testified that epididymitis is normally 
 
         caused by infection such as tuberculosis or gonorrhea, and that a 
 
         four-foot drop to a platform would be unlikely to cause the 
 
         ailment.  He further opined that trauma is the most remote and 
 
         least possible cause of epididymitis, but still is a possible 
 
         cause.
 
         
 
              Patricia Cahill is a registered nurse and testified 
 
         primarily as to defendant's offer of proof concerning its defense 
 
         under Iowa Code section 85.39 (based on claimant's alleged 
 
         refusal of treatment).  In addition she noted that claimant 
 
         walked briskly and without apparent pain when she saw him.
 
         
 
              Bob Grubb testified that he is an Alcoa unit supervisor and 
 
         that he inspected the pit where claimant alleges that he was 
 
         injured.  He testified that fellow workers indicated that 
 
         claimant lowered himself into the pit, and from where this 
 
         presumably occurred, the drop was only approximately three feet, 
 
         one to two inches.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              Claimant has the burden of proving by  a  preponderance of 
 
         the evidence that he received an injury on October 15, 1987 which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              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. Marys 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 claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of October 15, 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 
 

 
         
 
         
 
         
 
         ZEMBA V. ALUMINUM COMPANY OF AMERICA
 
         PAGE   3
 
         
 
         
 
         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 claimant was a credible witness.  His testimony that he 
 
         suffered an immediate and sharp pain upon leaping four feet down 
 
         to a steel platform is accepted as truthful.  The key issue in 
 
         this case is the determination of whether there is a causal 
 
         relationship between that impact and claimant's epididymitis.
 
         
 
              Certainly there is a close temporal connection between the 
 
         impact and the disease process.  To a layman this may appear 
 
         significant, but it is not for the layman to determine the 
 
         question of causal connection.  As has been seen, that issue is 
 
         essentially within the domain of expert testimony.  Bradshaw, 
 
         supra.
 
         
 
              The record in this case is wholly devoid of expert medical 
 
         testimony connecting up the impact claimant suffered and his 
 
         claimed disability.  James A. Holte, M.D., was the treating 
 
         physician.  His letter of November 18, 1987 sets forth a synopsis 
 
         of claimant's treatment.  Dr. Holte does not express an opinion 
 
         as to whether there is a causal relationship between the jolt or 
 
         impact and the claimed disability.
 
         
 
              The deposition of Richard B. Kasper, M.D., was entered into 
 
         evidence.  A review of the deposition testimony discloses that 
 
         Dr. Kasper was never asked whether he believed that a causal 
 
         relationship existed and no opinion on that question was 
 
         rendered.
 
         
 
              This deputy recognizes that the close temporal relationship 
 
         between the impact and the claimed disability might tend to show 
 
         that a causal relationship existed.  However, since he is not a 
 
         medical expert, he is unable to draw that conclusion.  Since 
 
         claimant was treated with antibiotics, it appears every bit as 
 
         likely that the epididymitis already existed before the impact, 
 
         perhaps ready to become obvious at any moment, and that the 
 
         jumping impact merely brought the problem to claimant's attention 
 
         sooner than would otherwise be the case.  In any event, it is 
 
         claimant's burden of proof to establish the causal relationship 
 
         between the claimed injury and the claimed disability, and this 
 
         he has not done.  Even when Dr. Kasper was available for a 
 
         deposition, the doctor was never even asked whether a causal 
 
         relationship existed.  There is an absolute dearth of evidence 
 
         that would support such a conclusion.  Therefore, it must be 
 
         ruled that claimant has failed to meet his burden of proof.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              THEREFORE, based on the evidence presented, the following 
 
         ultimate facts are found:
 
         
 
              1.  Claimant established that he suffered a serious impact 
 
         resulting in immediate sharp pain when he jumped four feet down 
 

 
         
 
         
 
         
 
         ZEMBA V. ALUMINUM COMPANY OF AMERICA
 
         PAGE   4
 
         
 
         
 
         to a steel platform on October 15, 1987.
 
         
 
              2.  Claimant has failed to establish any period of inability 
 
         to work resulting from his accident.
 
         
 
              3.  Claimant as failed to establish that his alleged 
 
         accident was related to any period of inability to work or 
 
         medical expenses.
 
         
 
              4.  Claimant has failed to show any causal connection 
 
         between his employment and any injury or resulting disability.
 
         
 
              5.  The record affirmatively shows that claimant has 
 
         suffered no permanent disability.
 
         
 
                                CONCLUSION OF LAW
 
         
 
               WHEREFORE, based on the principles of law previously 
 
         stated, the following conclusions of law are made:
 
         
 
              1.  Claimant has failed to establish any causal connection 
 
         between his alleged injury of October 15, 1987 and any alleged 
 
         disability or medical expenses.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant shall take nothing from this proceeding.
 
         
 
              Costs of this action are assessed against defendant pursuant 
 
         to Division of Industrial Service Rule 343-4.33.
 
         
 
              Signed and filed this 13th day of December, 1988.
 
         
 
         
 
         
 
         
 
                                        DAVID RASEY
 
                                        DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Nicholas G. Zemba
 
         535 3rd Street
 
         Le Claire, Iowa 52753
 
         REGULAR AND CERTIFIED MAIL
 
         
 
         Mr. John Telleen
 
         Attorney at Law
 
         600 Davenport Bank Building
 
         Davenport, Iowa 52801
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             1108. 50
 
                                             Filed December 13, 1988
 
                                             DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         NICHOLAS G. ZEMBA,
 
         
 
              Claimant,
 
                                               File No. 856397
 
         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.
 
         
 
         
 
         1108.50
 
         
 
              Pro se claimant failed to establish through any medical 
 
         evidence that a causal connection existed between sharp impact 
 
         when he jumped down four feet and subsequent attack of 
 
         epididymitis, even though there was close temporal relationship.
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         NEAL FRASER,
 
         
 
              Claimant,                                File No. 856503
 
         
 
         vs.                                        A R B I T R A T I O N
 
         
 
         MID-CONTINENT BOTTLERS,                       D E C I S I O N
 
         
 
              Employer,
 
                                                          F I L E D
 
         and
 
                                                         MAR 09 1990
 
         HARTFORD INSURANCE COMPANIES, 
 
                                                     INDUSTRIAL SERVICES
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Neal Fraser 
 
         against Mid-Continent Bottlers, his former employer, and its 
 
         insurance carrier, Hartford Insurance Companies.  The case was 
 
         heard and fully submitted at Des Moines, Iowa on October 12, 
 
         1989. The record in the proceeding consists of testimony from 
 
         Neal Fraser, testimony from Maureen Walsh, joint exhibits A 
 
         through G and defendants, exhibits 1 through 10.
 
         
 
                                      ISSUES
 
         
 
              Claimant seeks additional compensation for permanent partial 
 
         disability related to an injury which occurred on June 20, 1987. 
 
         Claimant has previously been paid the equivalent of 75 weeks of 
 
         permanent partial disability compensation, of which 22 weeks was 
 
         paid through a partial commutation.  Claimant's permanent partial 
 
         disability entitlement is the only issue identified by the 
 
         parties for determination.
 
         
 
                               SUMMARY OF EVIDENCE
 
         
 
              All the evidence referred to in the Introduction, as well as 
 
         the demeanor of those who testified at hearing, was considered 
 
         when deciding this case.  The lack of a reference to any 
 
         particular part of the record does not indicate that it was 
 
         overlooked.
 
         
 
              Neal Fraser is a 27-year-old married man whose first child 
 
         was born a few days prior to the date of hearing.  Fraser is a 
 
         1981 graduate of Lincoln High School where his grades were mostly 
 
         "B's" and "C's."  He participated in basketball and track.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Following high school Fraser attended Grandview College on a 
 
         full-ride basketball scholarship.  He studied human services and 
 
         stated that his grades were mostly "C's."  Fraser ceased 
 
         attending Grandview College when he was approximately six credit 
 
         hours and an internship program short of obtaining his degree and 
 
         graduating.  At the time of hearing Fraser had returned to school 
 
         on a part-time basis taking one three-hour class.  Fraser stated 
 
         that since leaving college in 1985, two classes have been added 
 
         to the requirements for his degree and that after completing the 
 
         current class, he will still need six hours of class work and 150 
 
         hours of internship in order to receive his degree and graduate. 
 
         Fraser stated that he plans to take a class every semester until 
 
         he finishes.  He expects that the salary range for the positions 
 
         for which he will be qualified when he completes his degree will 
 
         be from $18,000-$22,000 annually.  In June of 1988, Fraser 
 
         obtained approximately $6,000 through a partial commutation for 
 
         the purported purpose of paying college tuition.  He did not 
 
         return to college at that time, but has rather invested the money 
 
         in a home for himself and his wife.  Claimant stated that he had 
 
         always planned to complete his college degree requirements at 
 
         some point, even though he began working in areas which were not 
 
         related to his course of study.
 
         
 
              While in high school, Fraser worked part-time for Hawkeye 
 
         Delivery where he was engaged in moving furniture and appliances. 
 
         He retained that job during college and worked for Hawkeye 
 
         Delivery on a full-time basis from the time he ceased attending 
 
         college in 1985 until he commenced work for Mid-Continent 
 
         Bottlers in March of 1987.
 
         
 
              Fraser worked as a route delivery driver for Mid-Continent 
 
         Bottlers from March until June of 1987.  During the last two or 
 
         three weeks that he worked, claimant began experiencing pain in 
 
         his right leg.  Claimant sought medical treatment for the pain 
 
         and was taken.off work.  When conservative treatment did not 
 
         resolve his complaints, claimant entered into a course of 
 
         treatment with Des Moines orthopaedic surgeon William  R. 
 
         Boulden, M.D.  On July 17, 1987, claimant underwent a diskectomy 
 
         at the L5-S1 level of his spine on the right side with removal of 
 
         free disc fragments. Claimant's recovery from the surgery was 
 
         complicated by a persistent staph infection (exhibit B).  When 
 
         the infection was controlled, claimant was then placed into 
 
         physical rehabilitation at the Sports Medicine Centre (exhibit 
 
         E).
 
         
 
              On December 17, Dr. Boulden reported that the work hardening 
 
         program had aggravated claimant's condition.  He stated that 
 
         claimant could not return to work at Mid-Continent Bottlers.  Dr. 
 
         Boulden imposed a weight limit of 40 pounds and stated that 
 
         claimant should be in a position where he does not have to bend 
 
         or lift with his back (exhibit F, page 25).  On February 15, 
 
         1988, Dr. Boulden reported that claimant still had occasional 
 
         pain in  the right leg.  He stated that claimant's healing had 
 
         ended, that further improvement was not anticipated and assigned 
 
         a 15 percent impairment rating based upon claimant's work injury 
 
         (exhibit F, page 26).  On June 21, 1988, Dr. Boulden increased 
 
         the lifting restriction to permit occasional lifting of up to 50 
 
         pounds (exhibit F, page 27).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              In August of 1987, Cecilia L. O'Brien, a rehabilitation 
 
         specialist with Eischen Rehabilitation Services, Inc., became 
 
         involved in claimant's case.  She followed him through the 
 
         rehabilitation process and, on December 18, 1987, commenced work 
 
         on job placement since Dr. Boulden had advised that claimant 
 
         should not return to his employment at Mid-Continent Bottlers 
 
         (exhibit 9, pages 40 and 41).  Fraser testified that O'Brien told 
 
         him that there was no way that she could find a job which would 
 
         pay as well as the job he had at Mid-Continent.  Claimant was 
 
         sent Job Grams from O'Brien.  He stated that most were seasonal, 
 
         night time or paid minimum wage.  He stated that they paid less 
 
         than one-half of what he had earned at Mid-Continent.  Claimant 
 
         stated that he contacted some, but not all of them.  He also 
 
         sought employment on his own.  In March of 1988, claimant applied 
 
         for work at Iowa Power and Light Company.  When doing so, he 
 
         represented that he had no pain or problems as a result of his 
 
         back condition (exhibit 7).
 
         
 
              Claimant found employment at a facility which cared for 
 
         severely handicapped, mentally impaired children.  Claimant 
 
         worked only a few days. He stated that he was unable to cope with 
 
         the handicapped children and that lifting them aggravated his 
 
         back.
 
         
 
              In late May of 1988, Fraser found a job with Wiring Systems, 
 
         Ltd.  Claimant's work involved wiring switches and outlets, work 
 
         for which he had no prior training.  His employer accommodated 
 
         him to the extent that he was not required to perform heavy 
 
         lifting. In July, 1985, claimant expressed complaints regarding 
 
         numbness in his left leg.  He was referred to Des Moines 
 
         neurosurgeon David J. Boarini, M.D., who felt that the condition 
 
         was a meralgia paresthetica which had resulted from compression 
 
         of the lateral femoral cutaneous nerve.  Claimant stated that Dr. 
 
         Boarini attributed the condition to the way in which he wore his 
 
         tool belt.  Claimant stated that Dr. Boarini advised him to lose 
 
         weight and he did.  The symptoms resolved (exhibit 8).
 
         
 
              Dr. Boarini subsequently evaluated claimant and rated him as 
 
         having a 5-6 percent permanent impairment.  Dr. Boarini agreed, 
 
         however, with the activity restrictions which Dr. Boulden had 
 
         recommended (exhibit 4, pages 7, 8, 16 and 17; exhibit 8).  When 
 
         Dr. Boarini examined claimant on April 20, 1989, he indicated 
 
         that claimant was getting along well working as an electrician by 
 
         avoiding heavy lifting and using a stool (exhibit 4, page 6; 
 
         exhibit 8).
 
         
 
              Rehabilitation consultant Maureen Walsh became involved in 
 
         claimant's case.  In a report dated April 26, 1988, she reported 
 
         that she had found a part-time job for him which paid $4.25 per 
 
         hour (exhibit 9, page 44).  Walsh's last report which is dated 
 
         November 15, 1988 indicates that Fraser had lost interest in 
 
         inquiring into the electrical apprenticeship program which, if he 
 
         completed, could qualify him as a journeyman electrician with a 
 
         wage of approximately $17.00 per hour.  The report indicates that 
 
         Fraser stated that his back occasionally hurt, but that he had 
 
         not lost any time from work due to it.  The rehabilitation 
 
         services were then discontinued (exhibit 9, pages 53 and 54).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant stated that he did not enter the electrician 
 
         apprenticeship program because his employer had informed him that 
 
         not many employers would make allowances for his back.
 
         
 
              Fraser stated that he left Wiring Systems in June of 1989 
 
         because the work was getting heavier and his back was starting to 
 
         hurt more.
 
         
 
              Fraser obtained a job reading gas meters, but stated that it 
 
         required bending and twisting which caused his back to hurt.  He 
 
         left that job after one or two weeks.
 
         
 
              Fraser next worked primarily as a dispatcher for the people 
 
         who had employed him at Hawkeye Delivery.  Claimant reported that 
 
         sitting at the desk hurt his back so he left that job.
 
         
 
              At the time of hearing, Fraser was employed as a maintenance 
 
         person at Crystal Manor Nursing Home.  He reported that he fixes 
 
         anything that breaks, such as wheelchairs, faucets, etc.  
 
         Claimant stated that he can do everything that the job requires.
 
         
 
              Claimant stated that he continues to experience backaches, 
 
         particularly at the site of the surgery.
 
         
 
              When working at Mid-Continent Bottlers, claimant earned 
 
         $6,899.18.  That rate of earnings is equivalent to annual 
 
         earnings of slightly more than $27,500.  Claimant testified that 
 
         drivers at Mid-Continent can earn as much as $35,000 per year.  
 
         He related that he would rather work at Mid-Continent than be 
 
         employed as a social worker.  Claimant related that his job with 
 
         Wiring Systems had paid $7.00 per hour at the time he left.  The 
 
         job reading gas meters paid $6.00 per hour.  The dispatcher 
 
         position paid $7.00 per hour.  His current job pays $7.00 per 
 
         hour.
 
         
 
              Maureen Walsh testified that she sent claimant job notices 
 
         on a weekly basis.  She displayed a sample at hearing which 
 
         contained six potential jobs.  Of the six, only one provided a 
 
         salary and it was approximately $17,000 per year.  She stated 
 
         that she expected most would be in the range of $4.00-$7.00 per 
 
         hour.  Walsh stated that she felt claimant had a potential to 
 
         earn $30,000 per year in the sales field.  Claimant stated that 
 
         he had no interest in performing sales work.
 
         
 
              Walsh stated that she contacted the local electricians' 
 
         union about the apprenticeship program and was advised that the 
 
         requirements for entry into the program were the ability to lift 
 
         40 pounds, a high school degree and one year of high school 
 
         algebra. Walsh reported that the beginning wage for an apprentice 
 
         would be $5.14 per hour and that it then increased throughout the 
 
         five-year program to the current rate of approximately $17.00 per 
 
         hour for a journeyman electrician.  Walsh stated that she had 
 
         inquired about the availability of electrical jobs in the Des 
 
         Moines area and had found an opening through the Des Moines Civil 
 
         Service Commission which paid $13.00 per hour.  Walsh stated that 
 
         union electricians are permitted to work at their own pace.  
 
         Fraser stated that there is no way he could perform regular 
 
         electrician work because it is too heavy and requires too much 
 
         lifting.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Walsh testified that with a degree in human services, 
 
         claimant could expect a starting salary in the range of from 
 
         $18,000 to $25,000 per year.  She stated that human services work 
 
         is very demanding and has a high turnover rate.  She stated that 
 
         those who stay can move into management or administrative 
 
         positions where the salary range is from $25,000 to $35,000 
 
         annually.  Walsh had no knowledge of the frequency of job 
 
         availability in the human services field.  Fraser stated that he 
 
         was not aware of any social services positions with a salary of 
 
         $35,000 per year.  He stated that the highest he was aware of was 
 
         in the $25,000 range.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              As claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W.2d 899, 902 (1935) as follows:  "It is therefore 
 
         plain that the legislature intended the term 'disability' to mean 
 
         'industrial disability, or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Industrial disability or loss of earning capacity is a 
 
         concept that is quite similar to impairment of earning capacity, 
 
         an element of damage in a tort case.  Impairment of physical 
 
         capacity creates an inference of lessened earning capacity.  The 
 
         basis element to be determined, however, is the reduction in 
 
         value of the general earning capacity of the person, rather than 
 
         the loss of wages or earnings in a specific occupation.  
 
         Post-injury earnings create a presumption of earning capacity.  
 
         The earnings are not synonymous with earning capacity and the 
 
         presumption may be rebutted by evidence showing the earnings to 
 
         be an unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
         (Iowa 1973); Holmquist v. Volkswagon of America, Inc.,  261 
 
         N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison 
 
         County, 34th Biennial Report, 218 (1979); 2 Larson Workmen's 
 
         Compensation Law, sections 57.21 and 57.31.
 
         
 
              An impairment rating has little impact upon a person's 
 
         earning capacity.  The earning capacity is, however, greatly 
 
         affected by the activity restrictions which are placed upon an 
 
         individual.  The difference between the impairment ratings made 
 
         by Drs. Boulden and Boarini is largely academic since they agree 
 
         on the applicable activity restrictions.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Neal Fraser has been a very physically active person 
 
         throughout his life.  He paid his way through college by playing 
 
         basketball.  The jobs he had held prior to leaving college were 
 
         primarily in the nature of heavy labor.  After college he 
 
         obtained the job with Mid-Continent which also consisted of a 
 
         great deal of relatively heavy labor.  He sustained the injury 
 
         which is the subject of this proceeding and is physically unable 
 
         to resume that type of work.  The rehabilitation assistance which 
 
         was provided to claimant was largely ineffective.  It was obvious 
 
         that Walsh has no firsthand knowledge or experience of the 
 
         electrician apprenticeship program or of the work demands placed 
 
         upon journeyman electricians.  She had no knowledge of the 
 
         availability of work in the Des Moines area for journeyman 
 
         electricians.  Neal Fraser's ability to be accepted into the 
 
         quite selective electrician apprenticeship program, his ability 
 
         to complete the program and his ability to find and perform work 
 
         as a journeyman electrician in the Des Moines area is quite 
 
         speculative.  It is that kind of speculation which has been 
 
         previously held to be improper.  Stewart v. Crouse Cartage Co., 
 
         file number 738644 (App. Decn. 1987).  On the other hand, Fraser 
 
         has clearly demonstrated the ability to complete his degree in 
 
         human services, even though the actual completion has not yet 
 
         occurred.  Whether he does so or not will depend upon his 
 
         personal motivation, rather than his ability.  The estimates of 
 
         potential earnings as provided by Fraser and Walsh for human 
 
         services work are not greatly divergent.  It would be expected 
 
         that Fraser could obtain employment which paid in the range of, 
 
         or slightly above, $20,000 per year.  Work at the rate of $7.00 
 
         per hour is equivalent to an annual income of approximately 
 
         $15,000.  In view of Fraser's education, it is determined that 
 
         his current earnings understate his actual earning capacity.  
 
         Nevertheless, Fraser has experienced the loss of his prior 
 
         ability to perform the type of heavy physical labor which could 
 
         provide him with the level of earnings he enjoyed at 
 
         Mid-Continent Bottlers.  When all the pertinent factors of 
 
         industrial  disability are considered, it is determined that Neal 
 
         Fraser has sustained a 25 percent loss of earning capacity as a 
 
         result of the June 20, 1987 injury.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  The work Neal Fraser performed for Wiring Systems was 
 
         much lighter and less physically demanding than the work which is 
 
         commonly performed by journeyman electricians.
 
              
 
              2.  The possibility that Fraser could be accepted into the 
 
         electrician apprenticeship program, complete the program and then 
 
         obtain work as a journeyman.electrician is too speculative to be 
 
         given any significant weight when determining Fraser's earning 
 
         capacity.
 
         
 
              3.  Fraser is sufficiently close to completing a college 
 
         degree in human services to render it probable that he can and 
 
         will complete that course of study if he chooses to do so.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              4.  If Fraser completes his degree in human services, he 
 
         will likely be able to obtain employment which pays an annual 
 
         salary in the range of $20,000.
 
         
 
              5.  Fraser is currently underemployed in his position as a 
 
         maintenance man at a nursing home.
 
         
 
              6.  Neal Fraser has experienced a 25 percent reduction in 
 
         his earning capacity as a result of the physical restrictions 
 
         which have been imposed upon him as a result of injuries he 
 
         sustained on June 20, 1987.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
              
 
              2.  Neal Fraser is entitled to recover 125 weeks of 
 
         compensation for permanent partial disability under the 
 
         provisions of Iowa Code section 85.34(2)(u).
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay Neal Fraser one 
 
         hundred twenty-five (125) weeks of compensation for permanent 
 
         partial disability at the stipulated rate of two hundred 
 
         ninety-six and 40/100 dollars ($296.40) per week payable 
 
         commencing February 16, 1988.  Defendants are granted credit for 
 
         the seventy-five (75) weeks of compensation paid prior to hearing 
 
         and shall pay all accrued, past due amounts in a lump sum 
 
         together with interest pursuant to Iowa Code section 85.30 
 
         computed from the date each payment came due until the date of 
 
         actual payment.
 
         
 
              IT IS FURTHER ORDERED that the costs of this proceeding are 
 
         assessed against the defendants pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file claim activity 
 
         reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 9th day of March, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Mr. Harry W. Dahl
 
         Attorney at Law:
 
         974 73rd Street
 
         Suite 16
 
         Des Moines, Iowa  50312
 
         
 
         Mr. Robert C. Landess
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa  50312
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1402.40, 1803
 
                                            Filed March 9, 1990
 
                                            MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         NEAL FRASER,
 
         
 
              Claimant,
 
         
 
         vs.                                          File No. 856503
 
         
 
         MID-CONTINENT BOTTLERS,                   A R B I T R A T I O N
 
         
 
              Employer,                               D E C I S I O N
 
         
 
         and 
 
         
 
         HARTFORD INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1402.40, 1803
 
         
 
              Twenty-seven-year-old man who had undergone single level 
 
         back.surgery was required to leave employment which had paid in 
 
         the range of $27,000 per year and take employment which would pay 
 
         in the range of $20,000 per year.  Claimant awarded 25 percent 
 
         permanent partial disability.
 
         
 
              It was held that work as an electrician for an accommodating 
 
         small employer did not demonstrate the ability to be accepted 
 
         into the electrician apprenticeship program, to complete that 
 
         five-year program and then obtain work as a journeyman 
 
         electrician at a favorable hourly rate of pay.  Such was held to 
 
         be too speculative.  Where claimant was only 12 credit hours 
 
         short of obtaining a college degree, it was held probable that he 
 
         could complete his degree requirements if he were properly 
 
         motivated and his earning capacity was evaluated based upon his 
 
         expected earnings with a degree in his current field of study.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         MAUREEN D. JONES,             :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :         File No. 856636
 
         DEPARTMENT OF HUMAN SERVICES, :
 
         MENTAL HEALTH INSTITUTE,      :      A R B I T R A T I O N
 
                                       :
 
              Employer,                :         D E C I S I O N
 
                                       :
 
         and                           :
 
                                       :
 
         STATE OF IOWA,                :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendant.               :
 
         ___________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Maureen D. 
 
         Jones, claimant, against State of Iowa, Department of Human 
 
         Services, Mental Health Institute, self-insured employer, to 
 
         recover benefits under the Iowa Workers' Compensation Act as a 
 
         result of an injury sustained on March 31, 1987.  This matter 
 
         came on for hearing before the undersigned deputy industrial com
 
         missioner on September 11, 199l in Storm Lake, Iowa.  The record 
 
         was considered fully submitted at the close of the hearing.  The 
 
         record, in this case, consists of claimant's exhibit 1, pages 
 
         1-12, defendant's exhibits A-D, claimant's testimony and 
 
         testimony from Dana File.
 
         
 
                                      issues
 
         
 
              Pursuant to the prehearing report and order dated September 
 
         11, 1991, the parties have submitted the following issues for 
 
         resolution:
 
         
 
              1.  Whether claimant's injury on March 31, 1987, is a cause 
 
         of permanent disability;
 
         
 
              2.  The extent of entitlement to weekly compensation for 
 
         permanent disability, if defendant is liable for the injury; and,
 
         
 
              3.  The commencement date for permanent partial disability, 
 
         in the event such benefits are awarded.
 
         
 
                                 findings of fact
 
         
 
              The undersigned has carefully considered all the testimony 
 
         given at the hearing, the arguments made, the evidence contained 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         in the exhibits herein, and makes the following findings:
 
         
 
              Claimant is 57 years old and a high school graduate.  She 
 
         has worked at Cherokee Mental Health Institute for more than 25 
 
         years.  Claimant is a certified medical aide.  In this capacity, 
 
         she worked with children, adolescents and elderly patients.  On 
 
         March 31, 1987, while working on the children's unit, a 12 year 
 
         old male child, weighing between 145-150 pounds, hit her in the 
 
         left knee cap with his fist.  Claimant testified that she was off 
 
         work from June 1987 through October 15, 1987.  She returned to 
 
         work at the institute on October 16, 1987.  She testified she 
 
         cannot perform many facets of her job because of physical limita
 
         tions in bending, walking, lifting, carrying and climbing.  She 
 
         alleged constant knee pain exacerbated by walking, lifting and 
 
         climbing.
 
         
 
              Dana File, a colleague and certified medical aide, also tes
 
         tified at the hearing.  She corroborated claimant's testimony as 
 
         to her inability to perform all the components of her job and 
 
         stated that she has observed claimant in pain.
 
         
 
              The medical evidence reveals that claimant was seen at the 
 
         Mayo Clinic by Paul C. Carpenter, M.D., on June 18, 1987, for 
 
         evaluation of her Paget's disease.  During the course of evalua
 
         tion, claimant presented with left knee discomfort.  She was 
 
         referred to Thomas Bunch, M.D., rheumatologist, who thought she 
 
         might have a meniscus tear and recommended an arthroscopy.  She 
 
         was seen on June 27, 1987, by J. E. Larson with P. A. Swenson, 
 
         orthopedists, who reviewed her problem and performed an arthro
 
         gram.  There was no evidence of meniscal or ligamentous tear.  A 
 
         patellofemoral syndrome was diagnosed and she received a corti
 
         sone injection into the left knee joint space.  At this time, she 
 
         was put on crutches for ambulation and advised against any stair 
 
         climbing or other power moves using her left knee (Exhibit D, 
 
         pages 3-4).
 
         
 
              Claimant was reevaluated at the Mayo Clinic on July 27, 
 
         1987, by Arlen D. Hanssen, M.D.  At this time, she had consider
 
         able pain under the lateral facet of her patella and was put on 
 
         Naprosyn.  She was told to continue her exercises and wean from 
 
         her crutches.  She was reevaluated on September 1, 1987, and was 
 
         doing better on flat surfaces but still had persistent pain of 
 
         the patella and difficulty with kneeling, squatting and climbing.  
 
         She had the same symptoms when seen on October 12, 1987, and was 
 
         noted to have an inferior pole patellar synovitis but no insta
 
         bility or evidence of meniscal tear or effusion.  It was Dr. 
 
         Hanssen's impression that she has patellofemoral arthritis aggra
 
         vated by the blow.  He felt that this was resolving and released 
 
         her to return to work with restrictions against squatting, kneel
 
         ing, stair climbing or lifting over 30 pounds (Ex. D, p. 6).
 
         
 
              On October 29, 1987, Dr. Hanssen increased claimant's stair 
 
         climbing to a maximum of 10 steps, three times daily (Ex. D, 
 
         p. 7).  On July 12, 1988, he increased her stair climbing to 30 
 
         steps per day at work and an additional 20 steps while off work.  
 
         An examination revealed no effusion but significant retropatellar 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         crepitation.  Yearly medical visits were set-up thereafter 
 
         (Ex. C, p. 8).
 
         
 
              Dr. Carpenter saw claimant for follow-up evaluation on July 
 
         11, 1988.  He reported that her condition was stable.  On exami
 
         nation she had a small effusion of the left knee and some crepi
 
         tus with movement.  Knee x-rays were normal (Ex. D, pp. 9-10).
 
         
 
              On February 10, 1989, Dr. Hanssen saw claimant for follow-up 
 
         evaluation.  On examination, he observed no quadriceps atrophy 
 
         and no effusion.  She did have a 3+ patellofemoral crepitation.  
 
         Dr. Hanssen told her to avoid stairs and any activity that aggra
 
         vates her pain.  He advised that she continue anti-inflammatory 
 
         medication and isometric exercises.  He indicated she could per
 
         form her duties at work (Ex. D, p. 11).
 
         
 
              One year later claimant saw Dr. Hanssen for follow-up evalu
 
         ation.  Her complaints on March 26, 1990, were referable to symp
 
         toms in the lateral inferior aspect of her left patella.  On 
 
         examination, Dr. Hanssen reported a normal gait and motion from 
 
         0-135 degrees.  Her left knee showed mild patellofemoral crepita
 
         tion, but no effusion, synovitis or instability (Ex. D, p. 14).
 
         
 
              On August 7, 1990, Dr. Carpenter saw claimant for examina
 
         tion and evaluation of her Paget's disease.  He noted some 
 
         decreased range of motion of the left knee and an inability to 
 
         flex or support weight on that knee.  A small effusion was also 
 
         noted (Ex. 1, p. 110).
 
         
 
              On March 11, 1991, claimant saw Dr. Hanssen for a follow-up 
 
         evaluation.  He reported as follows:
 
         
 
                 On examination her left knee has motion from 0 to 
 
              135 degrees.  There is no effusion, or instability, and 
 
              she has a negative McMurray's examination.  She has 
 
              moderate patellofemoral crepitation and negative appre
 
              hension sign.  Her radiographs show no evidence of 
 
              degenerative arthritis.
 
         
 
         (Ex. 1, p. 12)
 
         
 
              It was Dr. Hanssen's impression that claimant had now 
 
         reached maximum medical improvement.  He did not recommend surgi
 
         cal intervention.  He opined:  "Because of the patient's full 
 
         motion and negative radiographs, her impairment rating would be 
 
         zero percent."  He advised her to maintain her present activity 
 
         level restrictions and to continue her exercise and anti-inflam
 
         matories (Ex. 1, p. 12).
 
         
 
                                conclusions of law
 
         
 
              The parties do not dispute that claimant sustained an injury 
 
         on March 31, 1987, which arose out of and in the course of 
 
         employment with employer and that such injury is a cause of tem
 
         porary disability.  Defendant has paid claimant 16 weeks and 2 
 
         days of temporary disability benefits at the rate of $227.40 per 
 
         week.
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              The issue to be determined is whether there is a causal 
 
         relationship between claimant's work injury and the disability on 
 
         which she now bases her claim.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of March 31, 1987, is causally 
 
         related to the disability on which she now bases her claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              Claimant sustained an injury on March 31, 1987.  Claimant's 
 
         injury was to her left knee.  Iowa Code section 85.34(2)(o) 
 
         provides:  The loss of two-thirds of that part of a leg between 
 
         the hip joint and the knee joint shall equal the loss of a leg, 
 
         and the compensation therefor shall be weekly compensation during 
 
         two hundred twenty weeks."
 
         
 
              Claimant alleges that her left knee injury has caused her 
 
         permanent disability.  However, claimant's treating orthopedist, 
 
         Dr. Arlen D. Hanssen, gave her a zero percent permanent impair
 
         ment rating.  Nevertheless, claimant urges that the undersigned 
 
         assign her an impairment rating based on her testimony and the 
 
         physical activity restrictions imposed by Dr. Hanssen.
 
         
 
              A careful review of Dr. Hanssen's progress notes indicate 
 
         that claimant has consistently had full range of motion in her 
 
         left knee, no effusion or instability and a negative McMurray's 
 
         examination.  X-rays reveal no evidence of degenerative arthritis 
 
         and have consistently been within normal limits.  She has moder
 
         ate patellofemoral crepitation and subjective complaints of pain.  
 
         Based on her complaints of pain, Dr. Hanssen prescribed isometric 
 
         exercises and anti-inflammatory medication.
 
         
 
              The burden of proof is on claimant to show by a preponder
 
         ance of the evidence that her work injury is causally related to 
 
         the disability on which she now bases her claim.  The question of 
 
         causal connection is essentially within the domain of expert tes
 
         timony.  Claimant's treating physician did not assign her a per
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         manent impairment rating.  In the absence of expert opinion in 
 
         that regard, it would be speculative for the undersigned to 
 
         assign claimant a permanent impairment rating.
 
         
 
              A deputy may not on his or her own consult the AMA Guides 
 
         and assign a rating of impairment.  Shank v. Mercy Hospital 
 
         Medical Center, File No. 719627, Appeal Decision filed August 28, 
 
         1989.  Claimant presented no other medical opinion for the 
 
         purpose of establishing degree of permanent impairment.  Rule 343 
 
         IAC 2.4 does not contemplate the independent use of the Guides 
 
         when the record does not contain medical testimony utilizing the 
 
         Guides.
 
         
 
              Accordingly, claimant has not met her burden of proof.  She 
 
         has failed to show by a preponderance of the evidence that her 
 
         alleged injury is a cause of permanent disability.  Therefore, 
 
         claimant is not entitled to weekly compensation benefits for per
 
         manent disability.
 
         
 
              Claimant takes nothing from this proceeding.
 
         
 
                              
 
         
 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         order
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant takes nothing from this proceeding.
 
         
 
              The parties shall pay their own costs pursuant to rule 343 
 
         IAC 4.33.
 
         
 
         
 
         
 
         
 
         
 
              Signed and filed this ____ day of September, 1991.
 
         
 
         
 
         
 
         
 
         
 
                                       ______________________________               
 
         JEAN M. INGRASSIA
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Phil Redenbaugh
 
         Attorney at Law
 
         111 W Sixth St
 
         Storm Lake  IA  50588
 
         
 
         Ms. Joanne Moeller
 
         Assistant Attorney General
 
         Hoover State Office Bldg
 
         Des Moines  IA  50319
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1803
 
                           September 20, 1991
 
                           JEAN M. INGRASSIA
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MAUREEN D. JONES,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 856636
 
            DEPARTMENT OF HUMAN SERVICES, :
 
            MENTAL HEALTH INSTITUTE,      :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            1803
 
            Claimant failed to prove by a preponderance of the evidence 
 
            that her left knee work injury caused permanent disability.  
 
            Claimant's treating orthopedist gave her a zero percent 
 
            impairment rating.  A deputy can only use AMA Guides if 
 
            there is medical testimony in the record relying on the 
 
            Guides.  A deputy may not on his or her own consult the 
 
            Guides and assign a rating of impairment.  Shank v. Mercy 
 
            Hospital Medical Center, File No. 719627, Appeal Decision 
 
            filed August 28, 1989.  Claimant presented no other medical 
 
            opinion for the purpose of establishing degree of permanent 
 
            impairment.  rule 343 IAC 2.4 does not contemplate the 
 
            independent use of the Guides when the record does not 
 
            contain medical testimony utilizing the Guides.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DEBBIE FERNANDEZ,
 
         
 
              Claimant,                               File No. 856640
 
         
 
         vs.                                       A R B I T R A T I O N
 
         
 
         GOOD SAMARITAN NURSING CENTER,               D E C I S I O N
 
         
 
              Employer,
 
                                                         F I L E D
 
         and
 
                                                        FEB 27 1990
 
         LIBERTY MUTUAL,
 
                                                    INDUSTRIAL SERVICES
 
              Insurance carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Debbie 
 
         Fernandez, claimant, against Good Samaritan Nursing Center, 
 
         employer, and Liberty Mutual Insurance Company, insurance 
 
         carrier, defendants, for benefits as the result of an alleged 
 
         injury to claimant which occurred on June 17, 1987.  A hearing 
 
         was held in Des Moines, Iowa, on January 13, 1989, and the case 
 
         was fully submitted at the close of the hearing.  Claimant was 
 
         represented by Harry W. Dahl, III.  Defendants were represented 
 
         by William C. Hoffmann.  The record consists of the testimony of 
 
         Steven Fernandez, claimant's husband; Debbie Fernandez, claimant; 
 
         Lanny Ward, employer's administrator; Margaret Dooly, director of 
 
         nursing services; joint exhibits A through K; and employer's 
 
         exhibit 1. Defendants ordered a copy of the transcript and 
 
         provided a copy of it for the industrial commissioner's file.  
 
         Both attorneys submitted excellent briefs.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters at the time 
 
         of the hearing:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the injury.
 
         
 
              That claimant sustained an injury on June 17, 1987, which 
 
         arose out of and in the course of employment with employer.
 
         
 
              That the injury was the cause of temporary disability to the 
 
         right arm, but it is disputed whether the injury was the cause of 
 
         temporary disability to the neck and back.
 
         
 
              That the injury was the cause of permanent disability to the 
 
         right arm, but it is disputed whether the injury was the cause of 
 
         permanent disability to the neck and back.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That claimant's entitlement to temporary disability benefits 
 
         is disputed, but the parties will attempt to stipulate to 
 
         claimant's entitlement to temporary disability benefits, insofar 
 
         as possible in their posthearing briefs.
 
         
 
              That claimant is entitled to 12.5 weeks of permanent partial 
 
         disability benefits due to a 5 percent permanent functional 
 
         impairment to the right arm, but whether claimant is entitled to 
 
         industrial disability benefits for the alleged injury to her neck 
 
         and back is a disputed matter.
 
         
 
              That the rate of compensation, in the event of an award of 
 
         benefits, is $78.80 per week.
 
         
 
              That claimant's entitlement to medical benefits is in 
 
         dispute, but it is limited to a physical therapy bill from Iowa 
 
         Therapeutic Services in the amount of $696.
 
         
 
              That the provider of medical services or supplies would 
 
         testify that the amounts charged are fair and reasonable and that 
 
         defendants are not offering contrary evidence.
 
         
 
              That defendants make no claim for credit for employee 
 
         nonoccupational group health plan benefits paid to claimant prior 
 
         to hearing.
 
         
 
              That defendants paid to claimant 10.714 weeks of workers' 
 
         compensation benefits at the rate of $78.80 per week prior to 
 
         hearing in the total amount of $844.26.
 
         
 
              That whether claimant was entitled to penalty benefits 
 
         pursuant to Iowa Code section 86.13(4) was designated as an issue 
 
         on the hearing assignment order.  However, at the beginning of 
 
         the hearing, claimant withdrew this issue based upon the 
 
         assurance of defendants' counsel that a check had been issued for 
 
         the 12.5 weeks of permanent partial disability benefits for the 5 
 
         percent permanent functional impairment to the right arm.  
 
         (Transcript page 6).
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether the alleged injury was the cause of temporary 
 
         disability to the neck and back.
 
         
 
              Whether the alleged injury was the cause of permanent 
 
         disability to the neck and back.
 
         
 
              Whether claimant is entitled to temporary disability 
 
         benefits for either the right arm, neck or back, and if so, the 
 
         nature and extent of benefits to which claimant is entitled.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Whether claimant is entitled to permanent disability 
 
         benefits for the neck and back, and if so, the nature and extent 
 
         of benefits to which claimant is entitled.
 
         
 
              Whether claimant is entitled to medical benefits, more 
 
         specifically, $696, in physical therapy expenses.
 
         
 
                               PRELIMINARY MATTERS
 
         
 
              In defendants' posthearing brief, at page 14, defendants' 
 
         counsel stated, "In line with the Pre-Hearing Stipulations, the 
 
         employer and insurance carrier would agree that the claimant was 
 
         entitled to benefits from the date of injury to the date of her 
 
         release to light duty on or about September 25, 1987, the date of 
 
         her release to light duty by Dr. Gaumer."  Actually, Ben F. 
 
         Gaumer, D.O., released claimant to return to work light duty on 
 
         September 28, 1987 (exhibit A, page 11).  Therefore, the only 
 
         remaining issue with respect to temporary disability is whether 
 
         the injury was the cause of temporary disability after September 
 
         28, 1987, and if so, the extent of temporary disability benefits 
 
         to which claimant is entitled.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Claimant, born September 15, 1958, was 28 years old at the 
 
         time of the injury and 30 years old at the time of the hearing. 
 
         She completed the eleventh grade and obtained a GED at the Des 
 
         Moines Area Community College in approximately 1981.  She also 
 
         began a secretarial training course, but did not complete the 
 
         course.  Past employments include ride attendant at Adventureland 
 
         Park, short-order cook at a gas station, telephone solicitor for 
 
         an aluminum siding company.  She started to work for employer on 
 
         the first occasion in 1985.  She completed a course of training 
 
         for becoming a nurse's aide at employer's place of business and 
 
         at the same time worked as a nurse's aide for employer.  She then 
 
         worked at a number of other nursing homes changing jobs each time 
 
         for better employment from her point of view.  She then performed 
 
         in-home nurse's aide work for Medical Personnel Pool.  She then 
 
         started to work on a second occasion for employer on March 3, 
 
         1987.  At that time, she took and passed a preemployment physical 
 
         examination which included an examination of her neck, back and 
 
         arms.  She described nurse's aide work as feeding, bathing, 
 
         lifting and generally caring for patients.  Claimant testified 
 
         that she was 5 feet 3 inches tall and weighed approximately 130 
 
         pounds at the time of her reemployment with employer.  She 
 
         testified that she is right handed (tr. pp. 28-41).
 
         
 
              Claimant described that on June 17, 1987, while working the 
 
         2:30 p.m. to 11 p.m. shift, she was injured at approximately 
 
         10:30 p.m. while trying to turn and position a patient who 
 
         weighed approximately 300 pounds (tr. p. 42).  It was later 
 
         established that the patient actually only weighed 178 pounds 
 
         (tr. p. 93).  In order to turn this patient, she literally got up 
 
         on the bed with him and put her left arm underneath and around 
 
         his shoulders and her right arm up underneath his knees and 
 
         pulled him toward her to turn him over in the bed.  When she did 
 
         this, it sounded like everything in her back and down her right 
 
         arm just let go.  She reported the injury immediately to the 
 
         charge nurse.  Claimant contended that she injured her right arm 
 
         from the wrist to the inside of the elbow, her neck and her lower 
 
         back (tr. p. 44). Claimant testified that she worked the 
 
         following day, June 18, 1987, but continued to have pain in her 
 
         right arm, neck and lower back.  Employer sent claimant to see 
 
         Ben F. Gaumer, M.D., on June 19, 1987.  Claimant then went on 
 
         vacation with her family, which had already been prearranged 
 
         prior to the injury, from June 20, 1987 to June 29, 1987.  She 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         contended that she was unable to do anything but sit around 
 
         during her vacation and her physical condition became worse.  
 
         Claimant saw Dr. Gaumer again on June 29, 1987 and he prescribed 
 
         light-duty work.  The light duty consisted of feeding patients, 
 
         passing bibs, gowns and wash cloths and pushing people from their 
 
         rooms to the dining room and back again in wheelchairs.  The 
 
         light-duty hours were from 4:00 p.m. to 9:00 p.m. (tr. pp. 4452).  
 
         Dr. Gaumer sent claimant to see Robert F. Breedlove, M.D., an 
 
         orthopedic surgeon, for her right arm.  He also sent her to see 
 
         S. Randy Winston, M.D., a neurosurgeon, for her neck and to see 
 
         William R. Boulden, M.D., an orthopedic surgeon, for her low back 
 
         pain (tr. pp. 55 & 56).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Gaumer's records show that he first saw claimant on June 
 
         19, 1987 for pain in the neck, shoulder and arm when she hurt her 
 
         back while turning a patient at work (ex. A, p. 5).  Dr. Gaumer 
 
         records an office visit on June 29, 1987, at which time her back 
 
         was better, but her right wrist continued to be tender (ex. A, p. 
 
         5).  On July 6, 1987, he restricted claimant from any heavy 
 
         lifting due to her right wrist.  Claimant reported back spasms to 
 
         Dr. Gaumer again on July 9, 1987 (ex. A, p. 6).  He took claimant 
 
         off work on July 14, 1987.  Dr. Gaumer noted tendonitis of the 
 
         right wrist on July 14, 1987 and muscular low back pain on July 
 
         20, 1987 (ex. A, p. 8).  Dr. Gaumer continued claimant off work 
 
         on July 24, 1987.  He noted back spasm and neck spasm on August 
 
         6, 1987 and back spasm and tendonitis of the right wrist on 
 
         August 13, 1987.  He referred claimant to Dr. Winston on August 
 
         13, 1987 (ex. A, pp. 9 & 10).  He released claimant back to work, 
 
         light duty, on September 28, 1987 to feed patients only (ex. A, 
 
         p. 11).
 
         
 
              Dr. Breedlove saw claimant on August 4, 1987, and recorded 
 
         that she injured her right arm on June 17, 1987, while moving a 
 
         patient.  An EMG disclosed mild early C7 radiculopathy only.  His 
 
         impression was acute and chronic right arm strain.  He prescribed 
 
         physical therapy.  Claimant was reevaluated on September 9, 1987. 
 
         Her wrist was improved and he recorded, "Resolving right wrist 
 
         strain.", and planned to return her to work in two weeks.  On 
 
         September 23, 1987, she was no worse, but she was no better.  His 
 
         diagnosis was, "Chronic wrist strain.", and he said that she is, 
 
         "probably able to return to work as long as she is on light duty 
 
         and not required to lift or transfer patients."
 
         
 
              Claimant saw Dr. Breedlove again on October 13, 1987 with 
 
         continued right wrist pain in a different part of her wrist which 
 
         occurred when she picked up a doll and felt a sharp pain in her 
 
         thumb and dropped it.  He felt her former symptoms were 
 
         resolving. He had nothing further to offer her at this point with 
 
         regard to therapy.  He added, "I do feel at this point the 
 
         patient is able to do the work that she is required to do at the 
 
         nursing home." She was the same on November 25, 1987 and was 
 
         allowed to return on a prn basis.  On January 29, 1988, Dr. 
 
         Breedlove wrote to claimant's attorney at follows:
 
         
 
              I believe that Mrs. Fernandez's right arm injury is a direct 
 
              result of the accident that happened while working at Good 
 
              Samaritan Nursing Home in Indianola on June 17, 1987.  I 
 
              would rate Mrs. Fernandez has [sic] having a permanent 
 
              partial impairment of 5% for the tenderness and pain that 
 
              she experiences in her right wrist."
 
         
 
         (ex. C)
 
         
 
              Dr. Boulden reported on September 15, 1987, that claimant 
 
         injured her back on June 17, 1987, at the Indianola Good 
 
         Samaritan Nursing Home when she was trying to move a 300 pound 
 
         patient.  She felt kind of a popping sensation to her upper back 
 
         to her lower back.  "Examination of the lower back revealed the 
 
         patient to be tender in the lumbosacral junction and the midline.  
 
         She had kind of a swayed back deformity.  She is slightly 
 
         overweight."  His physical examination was essentially normal.  
 
         Dr. Boulden concluded, "At this point in time I feel she has 
 
         basically myofascial type of problem with residual tightness and 
 
         stiffness. I have recommended extensive mobilization therapy and 
 
         range of motion exercises for the upper and lower back."  He 
 
         ordered a CAT scan and initiated physical therapy.  He 
 
         anticipated releasing her back to light duty in one week from 
 
         September 15, 1987, which would be September 22, 1987.  Dr. 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Boulden did not place any permanent restrictions on claimant and 
 
         did not award a permanent functional impairment rating (ex. E).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              On August 26, 1987, Dr. Winston recorded that claimant was 
 
         turning a 300 pound patient in bed on June 17, 1987 and strained 
 
         her whole back.  He diagnosed tendonitis and degenerative disc 
 
         disease of the cervical spine and at L-5.  He prescribed physical 
 
         therapy and medication (ex. D, pp. 2-4).
 
         
 
              Claimant testified that she did not return to work on 
 
         September 28, 1987, because she was not scheduled to work on that 
 
         day (tr. pp. 68 & 69).  Claimant further testified that she did 
 
         not return to work on September 29, 1987, because she was sick 
 
         and still hurt.  Claimant said that she reported in sick on 
 
         September 29, 1987 (tr. p. 70).  On September 30, 1987, she went 
 
         to her physical therapist, Bill Blount, in the morning.  She hurt 
 
         so bad she could hardly stand or walk.  Claimant alleged that he 
 
         told her that after the therapy that she was not to go back to 
 
         work (tr. p. 71).  She reported this to Lanny Ward, the 
 
         administrator of the nursing home.  He told her she was making 
 
         her own decision and hung up on her (tr. p. 72).
 
         
 
              Claimant testified that she called Dr. Gaumer's office, but 
 
         he was not in.  She next contacted Patricia C. Simms, D.O., Dr. 
 
         Gaumer's associate on October 5, 1987.  Claimant testified and 
 
         the notes of Dr. Simms verify that she gave claimant a note on 
 
         October 5, 1987, that claimant was not to work until she saw Dr. 
 
         Winston again in just a few days.  Claimant admitted that Dr. 
 
         Simms did not physically examine her, but Dr. Simms did tell 
 
         claimant that she would look at Dr. Gaumer's records and after 
 
         doing so told claimant there would be a note at the front desk on 
 
         October 5, 1987 taking claimant off work until she could be seen 
 
         by Dr. Winston again (tr. pp. 73 & 74; ex. A, p. 12; ex. B, p. 
 
         1).
 
         
 
              Claimant testified that Mag Dooly, director of nursing 
 
         services, rejected the note because Dr. Simms had not physically 
 
         examined her.  Claimant returned to Dr. Simms, the following day, 
 
         on October 6, 1987 and was physically examined by Dr. Simms and 
 
         given a new note bearing that date taking her off work until she 
 
         could be seen by Dr. Winston in a few days (tr. pp. 74 & 75; ex. 
 
         A, p. 12; ex. B, p. 2).  Claimant delivered the note taking her 
 
         off work as of October 6, 1987, to the secretary at work.  When 
 
         she returned home she found a letter from employer dated October 
 
         6, 1987, which stated as follows:
 
         
 
              Your employment at Indianola Good Samaritan Center has been 
 
              terminated.  You were scheduled to work on Thursday, October 
 
              1, Saturday, October 3, and Sunday, October 4.  Your failure 
 
              to work or call your supervisor, results in your 
 
              termination.
 
         
 
              According to our Employee Handbook, page 16 Group III 
 
              offenses:  (1).  Absence for two or more consecutive days 
 
              without notifying the Supervisor.
 
         
 
         (employer's ex. 1)
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant testified that she applied for unemployment 
 
         compensation and did certify that she was ready, willing and able 
 
         to work, but did notify the agency and gave them a slip of paper 
 
         signed by Dr. Gaumer that she was not to lift over 35 pounds. 
 
         Employer disputed the benefits, but claimant was awarded benefits 
 
         (tr. pp. 76-78).
 
         
 
              Claimant testified that she received physical therapy in 
 
         March of 1988, but did not state who prescribed it (tr. p. 84). 
 
         Iowa Therapeutic Services, Inc. shows a physical therapy bill in 
 
         the amount of $2,236, on which Liberty Mutual had paid $1,540 
 
         leaving a balance of $696, for the period from March 1, 1988 
 
         through April 15, 1988 (ex. I).
 
         
 
              Claimant was examined by Jerome G. Bashara, M.D., an 
 
         orthopedic surgeon, pursuant to an Iowa Code section 85.39 
 
         independent medical examination, on March 29, 1988 (ex. F).  Dr. 
 
         Bashara also examined the medical records of Dr. Gaumer, Dr. 
 
         Boulden, Dr. Breedlove, Dr. Winston, and medical records from 
 
         Mercy Hospital and Lutheran Hospital.  He proceeded on the 
 
         history that claimant was attempting to lift and turn a patient 
 
         weighing 300 pounds when she heard a pop in her entire spine and 
 
         felt immediate pain in her neck, right shoulder and lower back.  
 
         Dr. Bashara traced the course of claimant's medical treatment, he 
 
         noted that the CT scan performed by Dr. Boulden at Iowa Lutheran 
 
         Hospital on September 21, 1987 was interpreted as normal.  The 
 
         EMG and nerve conduction velocity test ordered by Dr. Winston, on 
 
         October 9, 1987, was interpreted as normal.  A CT scan performed 
 
         on the cervical spine on October 10, 1987 was interpreted as 
 
         normal.  Claimant continued to complain of neck and right arm 
 
         pain.  Her back pain had subsided except for muscle spasms.  Dr. 
 
         Bashara diagnosed:
 
         
 
              (1)  Musculoligamentous strain, of the neck with referred 
 
              right upper extremity pain, directly related to the accident 
 
              dated 6-17-87.
 
         
 
              I would recommend no lifting over 50 lbs, no excessive or 
 
              repetitive use of the head or neck.  I would give the 
 
              patient a 10% permanent partial physical impairment of her 
 
              body as a whole related to this neck and right upper 
 
              extremity injury.
 
         
 
              (2)  Musculoligamentous strain, lumbar spine, healed, with 
 
              no residual permanency,
 
         
 
              No restrictions are made with regard to the lumbar spine.
 
         
 
         (ex. F. pp. 3 & 4).
 
         
 
              Iowa Therapeutic Services' records show that physical 
 
         therapy was prescribed by Dr. Breedlove from August of 1987 
 
         through December of 1987 (ex. G, pp. 4 & 16).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant last saw Dr. Gaumer on January 12, 1988, at which 
 
         time he diagnosed chronic neck spasm without obvious nerve 
 
         injury. The only significant limitation was 60 degrees of 
 
         rotation on the left.  Dr. Gaumer concluded:
 
         
 
                   It appears that her condition is more than likely 
 
              secondary to lifting residents at Good Samaritan in June 
 
              1987.
 
         
 
                   Therapy that I would recommend includes physical 
 
              therapy consisting of hot packs and ultrasound therapy which 
 
              she has been receiving from Mr. Bill Blunt at Iowa 
 
              Therapeutic Services.  I feel that she should probably 
 
              continue to receive physical therapy.
 
         
 
                   I feel that Deb probably has reached a point where 
 
              further improvement will be slow.  I do not feel that she 
 
              has significant permanent impairment to her neck.  I feel 
 
              that the spasm will eventually diminish, however, this may 
 
              be a quite prolonged period of time.
 
         
 
         (ex. A, pp. 1 & 2)
 
         
 
              On March 3, 1988, Dr. Gaumer changed his opinion to state:
 
         
 
                   First:  I feel that Ms. Fernandez's permanent 
 
              impairment resulting from the injury on her neck is more 
 
              than likely minimal in the range of approximately five 
 
              percent if unable to receive necessary physical therapy 
 
              treatment on her neck.
 
         
 
                   Second:  I feel that Ms. Fernandez probably should 
 
              undergo further physical therapy treatments initially on a 
 
              frequent basis approximately biweekly to weekly and later 
 
              monthly, probably not needed from more than a period of 
 
              approximately six months.  This will more than likely 
 
              improve the spasm she suffers in her neck and hopefully will 
 
              improve her work related condition.
 
         
 
         (ex. A. p. 3).
 
         
 
              Dr. Gaumer changed his opinion on December 27, 1988 and 
 
         wrote as follows:
 
         
 
                   Thank you so much for your letter of December 15.  In 
 
              answer to your question regarding Debbie's condition, I do 
 
              feel that signs and symptoms of muscle spasm in her neck are 
 
              related to her original injury and are in keeping with the 
 
              5% permanent impairment rating.
 
         
 
         (ex. A, p. 4)
 
         
 
              Claimant testified that her back cleared up for the most 
 
         part in 1988 except for occasional flare-ups.  During 1988, she 
 
         continued to have problems with her neck and right arm related to 
 
         activity and use of the right arm.  She saw Dr. Gaumer for her 
 
         neck complaints (tr. pp. 85 & 86).  Prior to this injury, she 
 
         could run the vacuum, cook meals, do laundry and care for the 
 
         children.  There are times now when she can't do them.  Sometimes 
 
         these flare-ups occur spontaneously without activity (tr. p. 88).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant was examined for defendants by David J. Boarini, 
 
         M.D., an orthopedic surgeon, on November 3, 1988.  Claimant 
 
         reported continuing neck and left arm complaints caused by trying 
 
         to roll a patient over as a nurse's aide when she felt or heard a 
 
         pop in her lower neck and had onset of pain in her neck and 
 
         shoulder.  She was not taking medications at that time.  Dr. 
 
         Boarini concluded:
 
         
 
              I think this patient has an entirely normal exam.  She does 
 
              complain of some chronic myofascial neck pain following a 
 
              fairly minor incident.  I can find no abnormality in either 
 
              the neurological exam or the range of motion and in fact 
 
              totally normal function.  I don't feel that there is any 
 
              abnormality significant enough to give a permanent 
 
              impairment rating to.
 
         
 
         (ex. K)
 
         
 
              Dr. Boarini ended by saying, "I would allow her to return to 
 
         work without other limitations."  (ex. K).
 
         
 
              Claimant testified that she still experiences neck and right 
 
         arm pain.  She said that she cannot lift and therefore, she 
 
         cannot be a nurse's aide.  She said she cannot be a secretary 
 
         because she cannot do the back and forth motion with her neck.  
 
         If she writes with her right hand it makes her arm hurt (tr. p. 
 
         91).
 
         
 
              Claimant agreed that when a physician wanted her to see a 
 
         physical therapist, they either gave her a prescription or called 
 
         a prescription to the physical therapist (tr. pp- 102 & 103).  
 
         Claimant agreed that work schedules were published on the 
 
         bulletin boards at work (tr. pp. 93 & 117).
 
         
 
              Steven Fernandez, claimant's husband, testified that 
 
         claimant's health prior to this injury was very good and she did 
 
         not complain about her back, neck or extremities.  After the 
 
         injury her neck, back and shoulders, she hurt so bad she would 
 
         cry and he would rub her neck and shoulders.  It was necessary 
 
         for him to fix supper, do the dishes and bathe the kids.  He said 
 
         claimant had a relapse around Thanksgiving in November of 1988.  
 
         She woke up on a Monday morning and couldn't move her neck.  He 
 
         testified that when he massaged her muscles they were as hard as 
 
         a rock (tr. pp. 13-28).
 
         
 
              Lanny Ward, employer's administrator, testified that every 
 
         employee is required to have a personnel policy booklet and they 
 
         sign that they have received one.  The policy is very specific.  
 
         If you are scheduled for work you are expected to be there unless 
 
         there is an emergency or sickness.  In that event they expect to 
 
         be notified in order to find a replacement in order to provide 
 
         adequate care for the patients.  The policy book provides that if 
 
         you fail to call in, or if you are a no show and no call for two 
 
         consecutive days, it is grounds for termination of your 
 
         employment.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Ward testified that they had a release to return to work for 
 
         claimant from Dr. Gaumer effective September 28, 1987 from Dr. 
 
         Breedlove effective September 23, 1987 and from Dr. Boulden 
 
         effective September 22, 1987.  All three doctors had released her 
 
         to return to work light duty.  Therefore, a schedule was prepared 
 
         where claimant would begin light duty on September 29, 30 and 
 
         October 1, 3 and 4.  He testified that claimant called in sick 
 
         with a nonwork-related illness on September 29 and September 30. 
 
         On October 1, 3 and 4, she did not show up for work and she did 
 
         not call to say that she was not coming nor did she have any 
 
         excuse from a physician that she could not work on those days. 
 
         She violated the personnel policy.  She was terminated.  He sent 
 
         her the letter of termination dated October 6, 1987 (ex. 1).
 
         
 
              Earlier, claimant testified that Dr. Gaumer told her not to 
 
         lift more than 35 pounds even though there was no written proof 
 
         of this restriction.  Ward testified that he would not hire 
 
         someone for a nurse's aide job initially who had a 35 pound 
 
         weight restriction (tr. pp. 141-162).
 
         
 
              Margaret Dooly, R.N., testified that she is the director of 
 
         nursing services for employer.  Dooly testified that she had 
 
         difficulty finding out from claimant whether she was going to 
 
         work or not in July because she did not call in and keep her 
 
         informed. When there was communication, it was necessary for her 
 
         to call claimant.  She testified that light duty was arranged for 
 
         claimant when the doctor or doctors prescribed it.
 
         
 
              On September 30, claimant called in and said a physical 
 
         therapist said that she was not to come to work.  Dooly told 
 
         claimant that she needed a doctor's excuse and that the physical 
 
         therapist excuse would not work.  It was Dooly's practice to 
 
         require a written doctor's excuse and not to accept a telephone 
 
         report. claimant did not have a written excuse on September 30, 
 
         1987.  Dooly testified that on October 1, claimant was a no call 
 
         no show.  Claimant was scheduled to be off on October 2.  On 
 
         October 3, claimant was a no call no show.  On October 4, 
 
         claimant was a no call no show.  The witness stated that the work 
 
         schedule is posted on a bulletin board and that she also gave a 
 
         copy of the schedule to claimant personally.
 
         
 
              Dooly testified that claimant never did return to work in 
 
         September after all of the three physicians had released her by 
 
         September 28, 1987.  On September 29, claimant said she had a 
 
         headache.  On September 30, claimant said the physical therapist 
 
         told her not to work.  She did not hear from claimant again until 
 
         October 6, 1987, when she brought in the note from Dr. Simms, 
 
         which claimant obtained as a result of a telephone call.  Dooly 
 
         said she insisted that the doctor examine claimant before 
 
         accepting a note before taking her off work.  However, in that 
 
         point in time, October 6, 1987, claimant was terminated.  Both 
 
         Dooly and Ward testified that it is essential to the proper care 
 
         of the residents in a nursing home to know that there are 
 
         sufficient employees to operate the facility.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of June 17, 1987 is causally related 
 
         to the disability on which she now bases her claim.  Bodish 
 
         v.Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility 
 
         is insufficient; a probability is necessary.  Burt v.,John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id., at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 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."
 
         
 
              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).
 
         
 
              Since defendants have agreed to pay temporary disability 
 
         benefits from the date of injury to September 28, 1987, then the 
 
         first issue is whether the injury of June 17, 1987 was the cause 
 
         of any additional temporary disability.
 
         
 
              Dr. Boulden,,who saw claimant primarily for her back; and 
 
         Dr. Breedlove, who primarily saw claimant for her right arm; and 
 
         Dr. Gaumer, who primarily saw claimant for her neck, had all 
 
         released claimant to return to work on or before September 28, 
 
         1987.  The last release was delivered on September 28, 1987.  
 
         Dooly scheduled claimant to come in on September 29, just to feed 
 
         residents only (tr. p. 169).  However, claimant called in sick 
 
         with a headache. On September 30, 1987, claimant called in and 
 
         said the physical therapist told her not to work.  Dooly was 
 
         justified in rejecting the hearsay statement of the physical 
 
         therapist.  Dooly was justified in requiring that a physician 
 
         make the determination that claimant was unable to work.  Dooly 
 
         was not justified in rejecting the prescription form dated 
 
         October 5, 1987, signed by Dr. Simms, based on a review of 
 
         claimant's medical records with her associate Dr. Gaumer and 
 
         based on a personal conversation with claimant.  However, by that 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         time claimant was terminated from her employment with employer.  
 
         Defendants cite no authority that a doctor must perform a 
 
         physical examination of a claimant before being entitled to take 
 
         a claimant off work due to an injury.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              This decision does not purport to adjudicate the rights and 
 
         liabilities of the parties concerning the termination of 
 
         employment or the unemployment compensation benefits matter.
 
         
 
              It is determined that claimant was unable to work from the 
 
         date Dr. Simms wrote that on a prescription form based on a 
 
         telephone interview of claimant and an examination of claimant's 
 
         medical record with Dr. Gaumer.  Dr. Simms said that claimant was 
 
         entitled to be off work until the second examination by Dr. 
 
         Winston, which took place on October 14, 1987.  After that date, 
 
         neither Dr. Simms nor Dr. Winston continued to keep claimant off 
 
         work, not did any other doctor continue to keep claimant off work 
 
         after October 14, 1987.  Therefore, based on the foregoing 
 
         factors, it is determined that the injury of June 17, 1987, was 
 
         the cause of additional temporary disability from October 5, 1987 
 
         through October 14, 1987, and that claimant is entitled to 
 
         additional temporary disability benefits for that period of time.
 
         
 
              The next issue is whether the injury of June 17, 1987 was 
 
         the cause of permanent disability, and if so, whether claimant is 
 
         entitled to permanent disability benefits.
 
         
 
              Defendants did not dispute Dr. Breedlove's permanent 
 
         functional impairment rating of 5 percent for the tenderness and 
 
         pain that she experiences in her right wrist (ex. C, p. 1).  Even 
 
         though Dr. Breedlove stated the wrist in his report, defendants 
 
         have apparently construed it to mean the right arm because they 
 
         agreed to 12 1/2 weeks of permanent partial disability benefits.  
 
         A 5 percent permanent impairment rating to the right upper 
 
         extremity converts to a 3 percent impairment of the whole person.  
 
         Guides to the Evaluation of Permanent Impairment, third edition, 
 
         table 3, page 20.
 
         
 
              On January 27, 1988, Dr. Gaumer said that his diagnosis was 
 
         that of chronic neck spasm without obvious nerve injury.  He 
 
         determined that her condition is more than likely secondary to 
 
         lifting residents at Good Samaritan in June 1987 (ex. A, p. 1).
 
         
 
              On March 3, 1988, Dr. Gaumer stated that the permanent 
 
         impairment from the injury to her neck is more than likely 
 
         minimal in the range of approximately 5 percent if unable to 
 
         receive necessary physical therapy treatment on her neck.  Dr. 
 
         Gaumer then stated claimant should probably undergo further 
 
         physical therapy treatments initially on a frequent basis 
 
         approximately biweekly to weekly and later monthly for 
 
         approximately six months (ex. A, p. 3).
 
         
 
              On December 27, 1988, Dr. Gaumer gave an unqualified 
 
         physical impairment rating.  He stated, "I do feel that signs and 
 
         symptoms of muscle spasm in her neck are related to her original 
 
         injury and are in keeping with the 5% permanent impairment 
 
         rating."  (ex. A, p. 4).  On March 29, 1988, claimant's 
 
         independent medical evaluator, Dr. Bashara, found:
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              (1)  Musculoligamentous strain, of the neck with referred 
 
              right upper extremity pain, directly related to the accident 
 
              dated 6-17-87.
 
         
 
              I would recommend no lifting over 50 lbs, no excessive or 
 
              repetitive use of the head or neck.  I would give the 
 
              patient a 10% permanent partial physical impairment of her 
 
              body as a whole related to this neck and right upper 
 
              extremity injury.
 
         
 
         (ex. F, p. 3)
 
         
 
              Therefore, claimant has established that the injury of June 
 
         17, 1987, was the cause of permanent disability to both her right 
 
         arm and neck.  Since the neck is involved, claimant is entitled 
 
         to industrial disability to the body as a whole.  It is not 
 
         significant that Dr. Boulden did not give a permanent impairment 
 
         rating because claimant's back injury was not serious according 
 
         to her own testimony and according to Dr. Boulden's report.  It 
 
         is not significant that Dr. Winston did not find any permanent 
 
         impairment because there was no evidence that he was asked to do 
 
         so.  His role was to serve as a consultant for Dr. Gaumer and his 
 
         letter is addressed to Dr. Gaumer (ex. D, p. 1).
 
         
 
              Dr. Gaumer and Dr. Breedlove were treating physicians.  
 
         Their impairment ratings are supported and practically the same 
 
         as Dr. Bashara when Dr. Gaumer's rating on the neck is combined 
 
         with Dr. Breedlove's rating on the right arm.  The opinion of Dr. 
 
         Gaumer, Dr. Breedlove and Dr. Bashara are preferred over the 
 
         opinion of Dr. Boarini.  Rockwell Graphics Systems, Inc. v. 
 
         Prince, 366 N.W.2d 187, 192 (Iowa 1985).
 
         
 
              Claimant was 28 years old at the time of the injury and 30 
 
         years old at the time of the hearing.  Due to her young age, her 
 
         industrial disability is not as serious as it would be for an 
 
         older employee.  Becke v. Turner-Busch, Inc., Thirty-fourth 
 
         Biennial Report of the Industrial Commissioner 34 (Appeal 
 
         Decision 1979); Walton v. B & H Tank Corp., II Iowa Industrial 
 
         Commissioner Report 426 (1981); McCoy v. Donaldson Company, Inc., 
 
         file numbers 782670 & 805200 (Appeal Decision April 28, 1989).
 
         
 
              Claimant has an eleventh grade education and subsequently 
 
         obtained a GED at Des Moines Area Community College in 
 
         approximately 1981.  Therefore, she has the equivalent of a high 
 
         school education.  A high school education is the common 
 
         denominator in the competitive employment market and claimant 
 
         should be placed at no disadvantage due to her high school 
 
         equivalent education.
 
         
 
              There is no evidence that claimant could not return to work 
 
         as a nurse's aide.  Although claimant testified that Dr. Gaumer 
 
         issued a 35 pound weight restriction during the period of her 
 
         recovery, there is no evidence of that restriction other than 
 
         claimant's testimony or that he continued any kind of a permanent 
 
         restriction at the time of his rating of 5 percent permanent 
 
         physical disability to her neck.  Dr. Bashara's imposition of a 
 
         50 pound weight restriction is only a recommendation and is not 
 
         supported by any other medical evidence.  In particular, it is 
 
         not supported by the treating physician, Dr. Gaumer.  It is not 
 
         supported by his consultant, Dr. Winston, who examined claimant's 
 
         neck.  It is not supported by Dr. Boulden, the orthopedic 
 
         surgeon, who examined claimant's back.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant's subjective complaints of pain are not supported 
 
         by the medical evidence.  Pain that is not supported by clinical 
 
         findings is not a substitute for impairment.  Waller v. 
 
         Chamberlain Manufacturing, II Iowa Industrial Commissioner Report 
 
         419, 425 (1981).
 
         
 
              Claimant did not testify to a diligent search for employment 
 
         other than a department store and a convenience store during a 
 
         period of time that she was applying for unemployment 
 
         compensation benefits.  It is difficult to determine claimant's 
 
         potential for the labor market since she has not seriously tried 
 
         to work since her injury.  Schofield v. Iowa Beef Processors, 
 
         Inc., II Iowa Industrial Commissioner Report 334, 336 (1981).  
 
         Claimant appears to be supported by her husband, whose work 
 
         provides for her and her two children.
 
         
 
              Industrial disability can be the same as, less than or more 
 
         than functional impairment.  Birmingham v. Firestone Tire and 
 
         Rubber Co., II Iowa Industrial Commissioner Report 39, Appeal 
 
         Decision 1981).
 
         
 
              The most significant element of industrial disability in 
 
         this case appears to be the impairment ratings.  If 3 percent on 
 
         the arm is combined with 5 percent on the neck, the combined 
 
         value is 8 percent to the body as a whole, Guides, third edition, 
 
         combined values chart, page 246.  Dr. Bashara arrived at a 10 
 
         percent permanent physical impairment to the body as a whole for 
 
         both the neck and the arm.
 
         
 
              Consideration is also given to the fact that employer tried 
 
         to provide employment for claimant within the doctors' 
 
         restrictions on each occasion when claimant was released to 
 
         return to work on light duty.
 
         
 
              Wherefore, based upon:  (1) all of the evidence presented; 
 
         (2) the considerations discussed above; (3) all of the 
 
         considerations used to determine industrial disability, Olson, 
 
         255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963); Peterson v. 
 
         Truck Haven Cafe, Inc., Vol. 1 no. 3, State of Iowa Industrial 
 
         Commissioner Decisions 654, 658 (Appeal Decision February 28, 
 
         1985; and (4) employing agency expertise [Iowa Administrative 
 
         Procedure Act 17A.14(5)], it is determined that claimant has 
 
         sustained an industrial disability of 10 percent to the body as a 
 
         whole.
 
         
 
              The next issue is whether claimant is entitled to the 
 
         payment of $696 in physical therapy treatments that do not appear 
 
         to be specifically prescribed by a physician at the time they 
 
         were received.
 
         
 
              Iowa Code section 85.27 provides that employer shall provide 
 
         "reasonable" medical care and have the "right to choose the 
 
         medical care."  The long-standing precedent of this agency is 
 
         that defendants cannot dispute liability for an injury and at the 
 
         same time be entitled to choose the medical care.  Barnhart v. 
 
         MAQ, Inc., I Iowa Industrial Commissioner Report 16 (Appeal 
 
         Decision 1981); Kindhart v. Fort Des Moines Hotel, Vol 1, no. 3, 
 
         State of Iowa Industrial Commissioner Decisions 611 (Appeal 
 
         Decision 1985); Hameister v. Park View Manor, file no. 721585 
 
         (Appeal Decision October 31, 1986); Mason v. Thermogas, file nos. 
 
         819978 & 816116 (Appeal Decision July 28, 1989).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Defendants denied liability for the injury in the answer 
 
         filed on January 19, 1988.  The fact that defendants paid 
 
         voluntary payments of workers' compensation benefits is not an 
 
         admission of liability.  Iowa Code section 86.13.
 
         
 
              By long-standing unwritten precedent of this agency, the 
 
         voluntary payment of medical benefits has not been construed to 
 
         be an admission of liability.  The voluntary authorization of 
 
         medical care does not entitle defendants to choose the care.  
 
         Hartzer v. Swift Independent Packing Co., file no. 786164 filed 
 
         January 31, 1990; Wright v. Super 8 Lodge Des Moines, file no. 
 
         858615 (February 20, 1990).
 
         
 
              The first indication that defendants were admitting 
 
         liability was on the hearing assignment order dated November 21, 
 
         1988, where is says that the parties will attempt to stipulate 
 
         that claimant sustained an injury arising out of and in the 
 
         course of employment with employer.  When the hearing began, 
 
         defendants were only willing to stipulate that the injury caused 
 
         disability to the right arm and disputed that the injury caused 
 
         disability to the neck or back.
 
         
 
              Furthermore, even though Dr. Breedlove had awarded a 5 
 
         percent permanent impairment rating on January 29, 1988, no 
 
         permanent disability benefits had been paid to claimant as of the 
 
         time of hearing.  Claimant withdrew the issue of penalty benefits 
 
         under Iowa Code section 86.13(4) only when defendants' counsel 
 
         agreed to issue the check for permanent partial disability 
 
         benefits on the arm as of the date of hearing, on January 3, 
 
         1989.
 
         
 
              On March 3, 1988, Dr. Gaumer (the primary treating physician 
 
         selected by employer instead of claimant's personal physician 
 
         back on June 17, 1987, who they rejected) clearly recommended 
 
         further physical therapy treatments initially on a frequent basis 
 
         approximately biweekly to weekly and later monthly for 
 
         approximately six months (ex. A, p. 3).  In light of this 
 
         statement by Dr. Gaumer, it cannot be said that it was 
 
         unreasonable for claimant to receive physical therapy from March 
 
         31, 1988 to April 15, 1988, from Iowa Therapeutic services, Inc. 
 
         and Mr. Bill Blount, which is the same therapist that Dr. Gaumer 
 
         and Dr. Breedlove had used previously.  Both claimant and her 
 
         husband testified that when the physical therapy was stopped 
 
         because claimant could not afford to pay for the treatments 
 
         herself that her condition became increasingly worse.  Even if 
 
         defendants had admitted liability and were entitled to choose the 
 
         care, this gives them the right to choose the treating physician. 
 
         It does not give defendants the right to interfere with the 
 
         professional judgment of the treating physician on what care is 
 
         reasonably needed or appropriate to treat claimant's condition. 
 
         Pote v. Mickow Corporation, file no. 694639, filed June 27, 1986. 
 
         Dr. Gaumer clearly recommended the physical therapy even though 
 
         he may not have written a prescription for it (ex. A, p. 3). 
 
         Therefore, it is determined that claimant is entitled to $696 for 
 
         these physical therapy treatments (ex. I).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented, the following 
 
         findings of fact are made:
 
         
 
              That claimant sustained an injury on July 17, 1987, to her 
 
         right arm, neck and back, while turning a heavy patient in the 
 
         course of her work for employer.
 
         
 
              That Dr. Gaumer and Dr. Bashara both indicated that injury 
 
         was the cause of her temporary and permanent disability.
 
         
 
              That Dr. Simms took claimant off work from October 5, 1987 
 
         to October 14, 1987, in order to see Dr. Winston again.
 
         
 
              That Dr. Breedlove awarded a 5 percent permanent functional 
 
         impairment for the injury to the right arm, which converts to 3 
 
         percent of the body as a whole.
 
         
 
              That Dr. Gaumer determined that claimant sustained a 5 
 
         percent permanent functional impairment for the injury to her 
 
         neck.
 
         
 
              That Dr. Bashara found that claimant sustained a 10 percent 
 
         permanent functional impairment to the body as a whole for the 
 
         injury to both her neck and right arm.
 
         
 
              That claimant was 28 years old at the time of the injury and 
 
         30 years old at the time of the hearing.
 
         
 
              That claimant completed 11 years of education and later 
 
         obtained a GED from the Des Moines Area Community College in 
 
         approximately 1981.
 
         
 
              That claimant has not seriously sought active employment 
 
         since the date of the injury.
 
         
 
              That claimant's subjective complaints of pain and inability 
 
         to work are not supported by the medical evidence in the record.
 
         
 
              That claimant's husband is employed and supports her and 
 
         their two daughters with his employment.
 
         
 
              That there is no substantial medical evidence that claimant 
 
         could not return to her former employment of being a nurse's aide 
 
         if she chose to work and do so.
 
         
 
              That employer provided light duty for claimant and tried to 
 
         make the necessary accommodations for her each time that Dr. 
 
         Gaumer attempted to return her to work.
 
         
 
              That claimant has sustained an industrial disability of 10 
 
         percent to the body as a whole.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              That Dr. Gaumer recommended further intensive physical 
 
         therapy in March of 1988.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the evidence presented and the foregoing 
 
         principles of law, the following conclusions of law are made:
 
         
 
              That the injury of June 17, 1987, was the cause of both 
 
         temporary and permanent disability.
 
         
 
              That claimant is entitled to healing period benefits from 
 
         the date of the injury, June 17, 1987, to September 28, 1987, as 
 
         agreed to by defendants in their posthearing brief.
 
         
 
              That claimant is entitled to an additional period of healing 
 
         period benefits from October 5, 1987 through October 14, 1987, 
 
         for the period that Dr. Simms took her off work until she could 
 
         see Dr. Winston the second time.
 
         
 
              That claimant is entitled to 14.714 weeks of healing period 
 
         benefits for the period from June 17, 1987 to September 28, 1987 
 
         and that claimant is entitled to another 1.429 weeks of healing 
 
         period benefits for the period from October 5, 1987 through 
 
         October 14, 1987, when Dr. Simms took claimant off work a second 
 
         time.
 
         
 
              That claimant is entitled to a 10 percent industrial 
 
         disability to the body as a whole.
 
         
 
              That claimant is entitled to 50 weeks of permanent partial 
 
         disability benefits.
 
         
 
              That claimant is entitled to $696 in medical benefits.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant sixteen point one four three 
 
         (16.143) weeks of healing period benefits at the rate of 
 
         Seventy-eight and 80/100 Dollars ($78.80) per week in the total 
 
         amount of one Thousand Two Hundred Seventy-two and 07/100 Dollars 
 
         ($1,272.07)
 
         
 
              That defendants pay to claimant fifty (50) weeks of 
 
         permanent partial disability benefits at the rate of 
 
         Seventy-eight and 80/100 Dollars ($78.80) per week in the total 
 
         amount of Three Thousand Nine Hundred Forty Dollars ($3,940) 
 
         commencing on September 28, 1987 and interrupted by the second 
 
         period of healing from October 5, 1987 through October 14, 1987.
 
         
 
              That defendants are entitled to a credit for ten point seven 
 
         one four (10.714) weeks of workers' compensation benefits paid 
 
         prior to hearing at the rate of Seventy-eight and 80/100 Dollars 
 
         ($78.80) per week in the total amount of Eight Hundred Forty-four 
 
         and 26/100 Dollars ($844.26).  Defendants are also entitled to a 
 
         credit for twelve point five (12.5) weeks of workers, 
 
         compensation benefits at the rate of Seventy-eight and 80/100 
 
         Dollars ($78.80) per week in the total amount of Nine Hundred and 
 
         Eighty-five Dollars ($985) which defendants agreed to pay at the 
 
         commencement at the hearing for a five (5) percent impairment of 
 
         the right arm provided defendants have in fact paid this benefit 
 
         as they agreed to do.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That all of these benefits are to be paid in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That the costs of this action are charged to defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33. 
 
         Claimant is not entitled to recover the cost for a copy of the 
 
         transcript ordered by claimant after the hearing.
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 27th day of February, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                        
 
                                            WALTER R. McMANUS, JR
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies.To:
 
         
 
         Mr. Harry Dahl, III
 
         Attorney at Law
 
         974 - 73rd St. STE 16
 
         Des Moines, Iowa  50312
 
         
 
         Mr. W.C. Hoffmann
 
         Attorney at Law
 
         500 Liberty Bldg
 
         418 6th Ave.
 
         Des Moines, Iowa  50309
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                       
 
 
 
 
 
 
 
 
 
 
 
                                       51401; 51402.40; 51402.60;
 
                                       51403.10; 51403.20; 1803.10;
 
                                       2501; 2505; 2601.10; 2602; 51802; 
 
                                       1803; 2907
 
                                       Filed February 27, 1990
 
                                       Walter R. McManus, Jr.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DEBBIE FERNANDEZ,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                    File No. 856640
 
         GOOD SAMARITAN NURSING CENTER,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         LIBERTY MUTUAL,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         51401; 51402.40; 51402.60; 51403.10; 51403.20; 1803.10
 
         
 
              Claimant proved she received an injury to her neck as well 
 
         as her arm and was entitled to body as a whole benefits.  
 
         Claimant established an additional period of temporary disability 
 
         and that she was entitled to medical benefits both previously 
 
         denied by employer.
 
         
 
         2501; 2505; 2601.10; 2602
 
         
 
              It was held that it was not necessary for a doctor to 
 
         physically examine claimant in order to validly take claimant off 
 
         work when the doctor had talked to claimant on the telephone and 
 
         had examined the medical records of an associate in the same 
 
         medical practice.
 
         
 
         51802
 
         
 
              Claimant allowed nine more days healing period for a 
 
         subsequent period she was taken off work.
 
         
 
         1803
 
         
 
              Treating physician awarded 5 percent of the arm which 
 
         converted to 3 percent of the body as a whole.  Another treating 
 
         physician awarded 5 percent of the neck.  These combine to 8 
 
         percent of the body as a whole.  Claimant's evaluator awarded 10 
 
         percent for both arm and neck to the body as whole.  Claimant 
 
         awarded 10 percent industrial disability.  Subjective complaints 
 
         far exceed medical findings.  Claimant not motivated to work and 
 
         sought no work seriously.  Claimant not cooperative with 
 
         employer's attempts to return her to work light duty.
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         2907
 
         
 
              Claimant denied allowance of cost for a copy of the 
 
         transcript of hearing.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
         Page   1
 
         
 
         
 
         
 
                   51401; 51402.40; 51402.60;                   
 
         51403.10; 51403.20; 1803.10;
 
                   2501; 2505; 2601.10; 2602; 51802;            
 
         1803; 2907
 
                   Filed February 27, 1990
 
                   Walter R. McManus, Jr.
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         DEBBIE FERNANDEZ,             :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :      File No.  856640
 
         GOOD SAMARITAN NURSING CENTER,:
 
                                       :  A R B I T R A T I O N
 
              Employer,                :
 
                                       :      D E C I S I O N
 
         and                           :
 
                                       :
 
         LIBERTY MUTUAL,               :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         51401; 51402.40; 51402.60; 51403.10; 51403.20; 1803.10
 
         
 
              Claimant proved she received an injury to her neck as well 
 
         as her arm and was entitled to body as a whole benefits.  
 
         Claimant established an additional period of temporary disability 
 
         and that she was entitled to medical benefits both previously 
 
         denied by employer.
 
         
 
         2501; 2505; 2601.10; 2602
 
         
 
              It was held that it was not necessary for a doctor to 
 
         physically examine claimant in order to validly take claimant off 
 
         work when the doctor had talked to claimant on the telephone and 
 
         had examined the medical records of an associate in the same 
 
         medical practice.
 
         
 
         51802
 
         
 
              Claimant allowed nine more days healing period for a 
 
         subsequent period she was taken off work.
 
         
 
         1803
 
         
 
              Treating physician awarded 5 percent of the arm which 
 
         converted to 3 percent of the body as a whole.  Another treating 
 
         physician awarded 5 percent of the neck.  These combine to 8 
 
         percent of the body as a whole.  Claimant's evaluator awarded 10 
 
         
 
              
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         percent for both arm and neck to the body as whole.  Claimant 
 
         awarded 10 percent industrial disability.  Subjective complaints 
 
         far exceed medical findings.  Claimant not motivated to work and 
 
         sought no work seriously.  Claimant not cooperative with 
 
         employer's attempts to return her to work light duty.
 
         
 
         2907
 
         
 
              Claimant denied allowance of cost for a copy of the 
 
         transcript of hearing.
 
         
 
 
            
 
            
 
            
 
            
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            CONNIE USHER,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 856717
 
            vs.                           :
 
                                          :
 
            K-MART CORPORATION,           :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                 Self-Insured,            :
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on October 30, 1990, in 
 
            Cedar Rapids, Iowa.  This is a proceeding in arbitration 
 
            wherein the claimant seeks permanent disability benefits as 
 
            a result of an alleged injury on June 20, 1987.  The record 
 
            consists of the testimony of the claimant, claimant's 
 
            husband, John Usher, and Shirley Graham; claimant's exhibits 
 
            1 through 8; and defendant's exhibits 1 through 8.
 
            
 
                                      ISSUES
 
            
 
                 The issues in this proceeding are:
 
            
 
                 1.  Whether claimant's permanent disability is causally 
 
            connected to her June 20, 1987 work injury;
 
            
 
                 2.  The extent of claimant's permanent disability and 
 
            entitlement to disability benefits; and,
 
            
 
                 3.  Whether defendant is liable for a $113 lab bill.
 
            
 
                                 FINDINGS OF FACTS
 
            
 
                 The undersigned deputy having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 55-year-old high school graduate.  She 
 
            has no other formal education except for an approximate six 
 
            month course at Kirkwood Community College eight years ago 
 
            in shorthand and clerical and secretarial work.   Claimant's 
 
            work history up to her beginning employment with defendant 
 
            employer in 1985 involved approximately fourteen years 
 
            interspersed with raising her children.  There was a 21 year 
 
            period up to 1983 in which claimant was solely at home 
 
            raising her children.  Claimant's pre-1985 work involved 
 
            typing, manufacturing - welding parts, and clerical work in 
 
            an adoption agency.
 
            
 
                 Claimant said she had no physical problems prior to 
 
            working for K-Mart in 1985.  Claimant's duties at K-Mart at 
 
            the time of her injury involved cashiering, working in the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            men's wearing and apparel department, working the early 
 
            morning shift.  This apparel department job involves 
 
            straightening things on the racks and re-supplying the 
 
            racks, lifting boxes (like twelve pairs of blue jeans), 
 
            climbing a ladder and standing on a railing to get boxes of 
 
            supplies which were stacked to the store ceiling.  Claimant 
 
            emphasized she had no problems doing this and missed no work 
 
            prior to her June 20, 1987 injury except she acknowledged 
 
            her low and upper back would be stiff and sore at night and 
 
            she has gone to a chiropractor.  Claimant's hours were 
 
            usually 7:00 to 11:00 a.m. Monday through Friday and she 
 
            averaged 20 to 26 hours per week.
 
            
 
                 On Saturday, June 20, 1987, near closing time, claimant 
 
            was talking to the apparel manager, Mr. Boekhout, in the 
 
            stockroom when she bent down to get a clipboard and hit her 
 
            head on a metal pole.  Although not knocked out, she felt 
 
            nauseated and was helped and eventually taken to the 
 
            hospital.  Claimant went to a chiropractor the following 
 
            Monday and went to work that day.  Claimant worked 
 
            approximately three weeks but her condition continued to 
 
            worsen, resulting in finger numbness and right shoulder 
 
            pain.  On July 6, 1987, claimant took off work and was off 
 
            work to and including November 29, 1987.  During this 
 
            period, she was treated first by her family doctor, Carlton 
 
            Lake, M.D., and then beginning August 19, 1987, she began 
 
            treatment with James R. LaMorgese, M.D., a neurosurgeon, to 
 
            whom she was referred by Dr. Lake.  Claimant's treatment 
 
            involved a neck brace, therapy, myelogram, medication and 
 
            acupuncture.
 
            
 
                 Claimant returned to work on November 30, 1987 in the 
 
            same apparel department.  After working two hours on that 
 
            day, claimant was in pain and was told to go home, but she 
 
            did not and kept on working.  She was then put on a three 
 
            day a week regimen instead of five days a week to see how 
 
            she got along.  Claimant still had problems lifting and 
 
            doing things over her head.  This three day regimen ended at 
 
            the end of March 1988 and she tried to work her former five 
 
            day week.  Claimant continued to have problems doing this 
 
            apparel department job as it was a heavy type work and 
 
            involved lifting.  Claimant was off work from September 8, 
 
            1988 through September 15, 1988, during which time she had 
 
            another myelogram.  In October 1988, claimant transferred to 
 
            the jewelry department where she was able to do the work 
 
            within her physical restrictions and condition.  Defendant 
 
            tried to get claimant into the home center department but 
 
            the work was too heavy for claimant.
 
            
 
                 Claimant indicated that as of yesterday the jewelry 
 
            department would become part of the apparel department and 
 
            won't be in the home center.
 
            
 
                 Claimant contends she cannot do vacuuming, paint, or 
 
            raise her arms above her head without problems and pain.  
 
            She said she feels constant pressure in the right side of 
 
            her neck and it sometimes goes down her arm and affects her 
 
            fingers which then get numb.  Her right arm gets cold and 
 
            she rubs it a lot.  Claimant takes Voltaren twice a day.  
 
            She said she used to walk five miles a day with her husband 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            but now she can't.  Claimant said Dr. LaMorgese put a 25 
 
            pound weight limit on her.  She is working more now (32 to 
 
            36 hours per week) than she was at the time of her injury 
 
            (20 to 26 hours per week).  She emphasized she would like to 
 
            work full time.  Claimant said she was told surgery would be 
 
            a 50-50 chance of bettering her condition.  She does not 
 
            plan to have surgery.
 
            
 
                 There is a dispute as to a $113 medical bill for two 
 
            blood workups.  Claimant said these were the result of the 
 
            side effects her Voltaren medicine has on her liver and 
 
            these workups were to monitor and prevent liver damage.  She 
 
            testified that defendant is honoring her 25 pound weight 
 
            lifting restriction and is accommodating her.  Claimant 
 
            questioned whether the weight limit would be violated if she 
 
            worked in the apparel department as she is being crossed 
 
            trained now for the apparel department since the jewelry 
 
            department will be a part of that department.  Claimant 
 
            acknowledged that prior to her June 20, 1987 injury, she had 
 
            arthritis.  She also said she had a low back laminectomy 15 
 
            years ago.  Claimant agreed she hasn't missed any raises or 
 
            reviews since or because of her injury of June 20, 1987.  
 
            Claimant emphasized she likes the jewelry department job 
 
            over the apparel job but has been asked twice to go back to 
 
            the apparel department.  Claimant said she could not do the 
 
            apparel work now.  She acknowledged that it was defendant 
 
            employer who suggested she switch to the jewelry department 
 
            from the apparel department originally.  Claimant agreed 
 
            that K-Mart has been a very good employer to her.  Claimant 
 
            acknowledged that on April 28, 1987, two months before her 
 
            June 20, 1987 injury, she was given results of a study 
 
            indicating she had degenerative arthritis in her neck.
 
            
 
                 Claimant's husband related things she can't do now that 
 
            she did prior to June 20, 1987.  His testimony in this area 
 
            was basically cumulative to the testimony of claimant.  He 
 
            acknowledged claimant went to the chiropractor to treat her 
 
            neck prior to her June 20, 1987 injury.
 
            
 
                 Shirley Graham, defendant employer's personnel training 
 
            manager for the last 20 years, was familiar with claimant.  
 
            She said claimant started at Level 1 and was promoted to 
 
            Level 2 when she was transferred to the jewelry department.  
 
            This resulted in a $.25  per hour increase in wages.  She 
 
            emphasized they are honoring a 25 pound work restriction 
 
            even though she said nothing is in claimant's file 
 
            indicating that there is a medical weight restriction.  Ms. 
 
            Graham indicated that no one with less qualifications than 
 
            claimant has been promoted over the claimant since 1986.  
 
            She acknowledged the jewelry department as of January or 
 
            February 1991 will be a part of the apparel department and 
 
            they are cross-training people, including the jewelry 
 
            department, so that the various sections of the department 
 
            can help if there is need in the apparel department.  She 
 
            emphasized this does not mean claimant will be doing work 
 
            that violates her work lifting restrictions.  She said she 
 
            doubts that claimant will be doing anything in the apparel 
 
            department.  Ms. Graham said claimant is a good employee and 
 
            if she needs help to do something because she feels it is 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            contrary to her lifting restrictions, she need only ask for 
 
            help and it will be provided.  She said defendant employer 
 
            does not have a seniority system and they put only the best 
 
            qualified people in the proper positions.  She agreed 
 
            claimant is in line for a full-time job if such a position 
 
            is open.
 
            
 
                 Dr. Lake's records reflect claimant complained on April 
 
            17, 1987 of a lump in her neck just right of the midline and 
 
            her back was hurting all over.  On April 28, 1987, the 
 
            doctor called claimant and told her everything looked fairly 
 
            good but she does have degenerative arthritis (Def. Ex. 2).
 
            
 
                 Claimant's medical records with Biogenic Therapy and 
 
            Pain Management Center (Def. Ex. 3) on July 8, 1988 reflect 
 
            that she stepped off a ladder at work on July 7, 1988 when 
 
            taking down a box of jeans, reinjuring her neck.
 
            
 
                 Taking the medical record as a whole, considering her 
 
            medical status at this time and the doctor's subsequent 
 
            treatment, it appears and the undersigned so finds that this 
 
            July 7, 1988 incident was not a new injury and had no 
 
            appreciable effect on her medical care and treatment as a 
 
            result of her June 20, 1987 injury.  If anything is 
 
            attributable at all to this July incident, the undersigned 
 
            finds that her medical condition from her June 20, 1987 
 
            injury was a contributing factor to her July 7, 1988 fall.  
 
            Claimant's treating doctors didn't even refer to this July 
 
            1988 event nor did she treat with them for it.
 
            
 
                 On December 11, 1987 (Cl. Ex. 6), and January 21, 1988 
 
            (Def. Ex. 5), Dr. LaMorgese wrote defendant employer 
 
            indicating claimant had a 25 pound weight limit restriction.  
 
            It is surprising that defendant employer, as testified to by 
 
            Ms. Graham, did not have a copy of this in their file.  Ms. 
 
            Graham did, of course, acknowledged that they are following 
 
            a 25 pound weight limit on behalf of claimant.
 
            
 
                 Dr. LaMorgese, on January 24, 1989, indicated claimant 
 
            has "probably reached maximal improvement at this time." 
 
            (Def. Ex. 5; Cl. Ex. 6)  At this time, Dr. LaMorgese had 
 
            been treating claimant for one and one-half years.  He also 
 
            opined a 5 percent permanent partial impairment to 
 
            claimant's body as a whole (Def. Ex. 5; Cl. Ex. 6)
 
            
 
                 Dr. LaMorgese encouraged claimant to bid for the job in 
 
            the jewelry department of K-Mart because of her condition 
 
            and because it would entail less lifting, pulling, pushing, 
 
            stretching, etc. (Cl. Ex. 6).
 
            
 
                 Claimant's exhibit 7 shows claimant is doing a very 
 
            good job with defendant employer and her most recent score 
 
            was 125 points out of a satisfactory range of 90 to 130.
 
            
 
                 The main issue in this case is the extent of claimant's 
 
            permanent disability and whether this extent is causally 
 
            connected to her June 20, 1987 injury.  There is no question 
 
            of a work injury occurring and claimant was paid healing 
 
            period and temporary partial disability payments concerning 
 
            which there is no dispute.  Taking the evidence as a whole, 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            there is no question that defendant can see that claimant 
 
            has a 5 percent impairment as opined by defendant's 
 
            authorized specialist, Dr. LaMorgese, and paid 25 weeks of 
 
            permanent partial disability benefits (5 x 500 = 25 weeks).  
 
            Voluntary payments are not an admission of liability, but it 
 
            obvious defendant feels they owe this.  It also appears that 
 
            a criteria often used, but not a proper or conclusive guide, 
 
            was used, namely, 5 percent impairment equals 5 percent 
 
            permanent partial disability, or actually 5 percent 
 
            industrial disability.  Impairment is but one of several 
 
            criteria used in determining industrial disability.  One can 
 
            have a low functional impairment and a resulting higher 
 
            industrial disability or vice versa.
 
            
 
                 Claimant has no loss of income resulting from her June 
 
            1987 injury.  She had several months of healing period and 
 
            temporary partial disability which defendant paid.  Claimant 
 
            obviously has degenerative arthritis and was bothered by it 
 
            prior to her injury but was working basically without 
 
            problems affecting her work in the wearing apparel 
 
            department, which required climbing a ladder, standing on a 
 
            railing and lifting boxes.  It seems undisputed that this 
 
            apparel department violates claimant's 25 pound weight 
 
            restriction.  All parties agreed, and the doctor 
 
            recommended, claimant transfer to defendant employer's 
 
            jewelry department where lifting, climbing, etc. was not a 
 
            problem.  Defendant is still honoring this restriction and 
 
            intends to do so.  The undersigned finds that claimant's 
 
            June 20, 1987 injury also materially and substantially 
 
            worsened, lightened, and accelerated claimant's preexisting 
 
            degenerative arthritis.
 
            
 
                 Defendant rates claimant very highly as an employee.  
 
            Although claimant has no loss of income, she has a loss of 
 
            earning capacity.  She cannot do the job that requires more 
 
            than 25 pound lifting and also has a 5 percent impairment, 
 
            both of which the undersigned finds were caused by 
 
            claimant's June 20, 1987 injury.
 
            
 
                 Taking into consideration those criteria used in 
 
            determining industrial disability, including but not limited 
 
            to claimant's age, education, extent of transferable skills, 
 
            healing period, medical history before and after her June 
 
            20, 1987 injury, her income before and after her June 20, 
 
            1987 injury, and her restrictions, impairments and 
 
            motivation, the undersigned finds that claimant has a 10 
 
            percent industrial disability caused by her June 20, 1987 
 
            injury.  Benefits are payable at the rate of $76.91 per week 
 
            beginning November 30, 1987 with an interruption beginning 
 
            September 8, 1988 to and including September 15, 1988, and 
 
            continuing again on September 16, 1988.
 
            
 
                 As to the $113 lab bill in dispute, the evidence 
 
            supports a fact that these tests were done as a part of 
 
            claimant's treatment and the tests were to monitor 
 
            claimant's medication prescribed due to her June 20, 1987 
 
            injury and to make sure the medicine's side effects were not 
 
            further damaging claimant's body.  Defendant is responsible 
 
            for the $113 lab bill from Family Practice Associates.
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 Defendant is to be congratulated for their efforts in 
 
            keeping claimant employed and accommodating her restriction.  
 
            It enables a person like claimant with good motivation to 
 
            strive to keep working under pain and adversity and, also, 
 
            reduces the extent of industrial disability.  Everyone 
 
            benefits from such action.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of June 20, 
 
            1987 is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 The Iowa Supreme Court cites, apparently with approval, 
 
            the C.J.S. statement that the aggravation should be material 
 
            if it is to be compensable.  Yeager v. Firestone Tire & 
 
            Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. 
 
            Workmen's Compensation sec. 555(17)a.
 
            
 
                 An employer takes an employee subject to any active or 
 
            dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler v. United 
 
            States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960), 
 
            and cases cited.
 
            
 
                 An employee is not entitled to recover for the results 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            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, 252 Iowa 
 
            613, 106 N.W.2d 591.  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).
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
            257.
 
            
 
                 Iowa Code section 85.34(2) provides that compensation 
 
            for permanent partial disability shall begin at the 
 
            termination of the healing period.  Iowa Code section 
 
            85.34(2)(u) provides that compensation for a nonscheduled or 
 
            body as a whole injury shall be paid in relation to 500 
 
            weeks and the disability bears to the body as a whole.
 
            
 
                 A healing period may be interrupted by a return to 
 
            work.  Riesselman v. Carroll Health Center, III Iowa 
 
            Industrial Commissioner Report 09 (Appeal Decision 1982).
 
            
 
     
 
            
 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            It is further concluded:
 
            
 
                 That claimant incurred a work-related 5 percent 
 
            impairment and a 25 percent weight restriction which were 
 
            caused by claimant's work injury on June 20, 1987.
 
            
 
                 That claimant's June 20, 1987 injury substantially and 
 
            materially accelerated, worsened and lighted up a 
 
            preexisting degenerative arthritic condition in her cervical 
 
            region.
 
            
 
                 That claimant has a loss of earning capacity caused by 
 
            her June 20, 1987 injury.
 
            
 
                 That claimant has no loss of income as a result of her 
 
            June 20, 1987 injury.
 
            
 
                 That claimant was transferred to another department by 
 
            defendant employer in order to accommodate claimant's weight 
 
            restriction and her medical condition.
 
            
 
                 That defendant employer is very satisfied with 
 
            claimant's work and has no intent of assigning her to any 
 
            job in a department that would violate her 25 pound weight 
 
            restriction which they have agreed to follow.
 
            
 
                 That claimant has a 10 percent industrial disability 
 
            and the benefits are to begin on November 20, 1987, and are 
 
            interrupted by a period beginning September 8, 1988 to and 
 
            including September 15, 1988, and are to continue beginning 
 
            September 16, 1988.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendant shall pay unto claimant fifty (50) weeks 
 
            of permanent partial disability benefits at the rate of 
 
            seventy-six and 91/100 dollars ($76.91) per week, beginning 
 
            November 30, 1987, and said payments are interrupted for a 
 
            period beginning September 8, 1988 to and including 
 
            September 15, 1988, and are to continue again beginning 
 
            September 16, 1988.
 
            
 
                 That defendant shall reimburse claimant for the one 
 
            hundred thirteen ($113) lab bill with Family Practice 
 
            Associates which claimant has already paid.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  By stipulation, defendant 
 
            has already paid all the healing period and temporary 
 
            partial disability benefits and have also paid twenty-five 
 
            (25) weeks of permanent partial disability benefits.
 
            
 
                 That defendant shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendant shall pay the costs of this action, 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
                 That defendant shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to Division of Industrial Services Rule 343-3.1
 
            
 
                 Signed and filed this _____ day of November, 1990.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr John Broz
 
            Attorney at Law
 
            837 Higley Bldg
 
            Cedar Rapids IA 52401
 
            
 
            Mr Joel Greer
 
            Attorney at Law
 
            112 W Church St
 
            Marshalltown IA 50158
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1803; 5-2500
 
                      Filed November 9, 1990
 
                      Bernard J. O'Malley
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CONNIE USHER,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 856717
 
            vs.                           :
 
                                          :
 
            K-MART CORPORATION,           :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                 Self-Insured,            :
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant was awarded 10 percent industrial disability.  
 
            Claimant had a 5 percent permanent partial impairment to her 
 
            body as a whole.  Basically, defendant recognized a 5 
 
            percent impairment and had paid 5 percent industrial 
 
            disability before hearing.
 
            
 
            5-2500
 
            Claimant was to be reimbursed by defendant for a $113 lab 
 
            bill, which was incurred by liver tests to monitor medicine 
 
            claimant was prescribed for her injury and which medicine 
 
            had side effects on some people's liver, causing damage.