BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BARBARA KOHNEKAMP,
 
         
 
              Claimant,
 
                                                    File No. 856746
 
         vs.
 
                                                 A R B I T R A T I O N
 
         FARMLAND FOODS,
 
                                                    D E C I S I O N
 
              Employer,
 
                                                       F I L E D
 
         and
 
                                                      MAR 13 1989
 
         AETNA CASUALTY & SURETY CO.,
 
                                              IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding brought by the claimant, Barbara 
 
         Kohnekamp, against the employer, Farmland Foods, and Aetna 
 
         Casualty & Surety Co., insurance carrier, to recover benefits as 
 
         a result of an injury allegedly sustained by claimant on March 
 
         26, 1987.  This matter came on for hearing before the undersigned 
 
         deputy industrial commissioner in Council Bluffs, Iowa, on 
 
         November 15, 1988.
 
         
 
              The record in this proceeding consists oF the testimony of 
 
         the claimant, Barbara Kohnekamp; joint exhibits 1 through 35; and 
 
         defendants' exhibits 1 and 2, 4 through 10, and 15.  Joint 
 
         exhibit 35 is the deposition of the claimant.
 
         
 
              Pursuant to the prehearing report, the parties stipulated to 
 
         the employer-employee relationship; that if the injury is found 
 
         to be the cause of permanent disability, it is to be industrial 
 
         disability; if benefits are awarded, permanent partial disability 
 
         is to begin September 9, 1987; and that the weekly compensation 
 
         rate is $272.91.
 
         
 
                                   ISSUES
 
         
 
              The issues remaining for resolution are:
 
         
 
              1.  Whether claimant sustained an injury arising out of and 
 
         in the course of her employment on March 26, 1987;
 
         
 
              2.  Whether claimant's claim is barred by Iowa Code section 
 
              85.26;
 
         
 
              3.  Whether there is a causal connection between any 
 
                                                
 
                                                         
 
         disability from which claimant now suffers and claimant's 
 
         injury;
 
         
 
              4.  The nature and extent of claimant's disability; and
 
         
 
              5.  Whether claimant is entitled to costs as submitted.
 
         
 
                             REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified she suffered an injury on March 26, 1987 
 
         while working at Farmland Foods.  Claimant first began employment 
 
         there on September 14, 1970 earning $3.25 per hour and continued 
 
         working for defendant employer to June 11, 1987, earning $9.10 at 
 
         this time.  Claimant's job entailed continuous, repetitive work 
 
         motions, lifting 5 to 90 pounds, throwing, and using her hands, 
 
         wrists and arms.  Claimant's last job with the employer was 
 
         weighing five pound tenders.  Claimant testified she had to take 
 
         these tenders out of a large square tub as she stood on a rack; 
 
         toss them behind her on a table, then bag them and put them on a 
 
         tray to move along an assembly line.  Claimant's most recent work 
 
         at time of injury entailed lifting 20 or more pounds.  Claimant 
 
         stated she performed this type of work approximately four and a 
 
         half years through the spring and summer 1987.
 
         
 
              Claimant testified that the employer sent her to the company 
 
         doctor (Dr. Soll) because she developed bad headaches, pain and 
 
         swelling down the left arm and numbness in the hand causing her 
 
         to feel like a semi hit her when the day ended.  Prior to March 
 
         26, 1987, the employer raised production standards increasing the 
 
         number of tenderloins to be processed per hour from approximately 
 
         84 cases to 88 or 89 cases.  On March 26, 1987, Dr. Soll put 
 
         claimant on a light duty restriction.  Claimant testified that 
 
         the defendant did not lighten her duties but work conditions were 
 
         still the same.  Claimant contended she could not perform work at 
 
         the required pace any longer.  She indicated she was slowing the 
 
         processing line.  Claimant testified that these symptoms appeared 
 
         more severe around March 26, 1987, although she had experienced 
 
         these symptoms before.  Claimant was given the opportunity to try 
 
         other jobs but any attempt resulted in the same slowness of her 
 
         actions resulting in claimant no longer being able to maintain 
 
         the defendant employer's processing speed.
 
         
 
              In September 1987, the claimant testified she was no longer 
 
         able to continue working for the defendant employer as her left 
 
         arm hurt so bad and her left hand and fingers were quite numb.
 
         
 
              Claimant acknowledged that Anil K. Agarwal, M.D., discussed 
 
         with her in September 1987 that she could return to the job of 
 
         packing meat with a 25 to 30 pound limitation which she could 
 
         increase if she could tolerate it.  No other restrictions were 
 
         necessary.  Around September 1987, claimant testified:
 
         
 
              A.  Well, this is the way it was.  They had given me a 
 
              choice of six jobs throughout the plant.  And I was supposed 
 
              to watch these people do it, do these jobs, and pick one out 
 
                                                
 
                                                         
 
                   that I thought I could handle.  So actually I picked the job 
 
              on the bacon line because it was the easiest.  There was 
 
              less throwing.  I thought I could handle it.
 
         
 
              Q.  But do you recall my question?
 
         
 
              A.  Yes.  But Farmland has never called me since.
 
         
 
              Q.  Have you ever called them?
 
         
 
              A.  I have called once and then they said, "We'll get in 
 
         touch with you when we find something so"--
 
         
 
         (Joint Exhibit 35, Kohnekamp Deposition, page 20, lines 8-18)
 
         
 
              Claimant indicated she has sought work at several places, 
 
         which was required due to the claimant seeking unemployment 
 
         compensation.  Claimant said she received some unemployment 
 
         benefits until they ran out.  Claimant stated she wanted to work 
 
         at whatever she could do.  The medical records reflect a history 
 
         of claimant's complaints.
 
         
 
              Anil K. Agarwal, M.D., an orthopedic surgeon, wrote on 
 
         September 21, 1987:
 
         
 
              Conclusion:  I made the following observations:
 
         
 
                   1.  There is no specific history of injury.
 
         
 
                   2.  Patients symptoms are mild and vague.
 
         
 
                   3.  I fail to establish a definite relationship with 
 
                       her work, however she has been working for 17 years 
 
                       at Farmland Foods.  Some aggravation to her problem 
 
                       cannot be totally ruled out.
 
         
 
                   4.  I believe her diagnosis, in my opinion may be mild 
 
                       cervical spondylosis with minimal radiculopathy 
 
                       with minimal shoulder tendinitis on the left side.
 
         
 
                   5.  In relationship to the other diagnoses, to her 
 
                       work, it would be rather speculative than 
 
                       definite.
 
         
 
                   6.  In regards to treatment, I don't think any specific 
 
                       treatment is required I don't think any continued 
 
                       medical care is indicated.  She already had an 
 
                       extensive examination and investigation by various 
 
                       physicians over several months period of time 
 
                       without any significant change.
 
         
 
                   7.  In regards to her permanent disability, I inspite 
 
                       [sic] of lack of objective and laboratory findings, 
 
                       I believe the patient has a 5% permanent partial 
 
                       impairment to the whole body.  This permanent 
 
                                                
 
                                                         
 
                                     disability rating is based mostly on her symptoms 
 
                       rather than on any clinical findings.
 
         
 
                   8.  In regards to work, I discussed with the patient in 
 
                       length that I believe she could return to the job 
 
                       of packing meat however her limitation of lifting 
 
                       may be up to 25-30 pounds which she may increase 
 
                       further if she can tolerate the lifting.  There are 
 
                       no other restrictions necessary.  However I do tend 
 
                       to agree with Dr. Flood as well that her present 
 
                       job may be too strenuous for her.
 
         
 
                   9.  In regards to her maximum recovery, I believe she 
 
                       has reached her maximum improvement.
 
         
 
              Bernard L. Kratochvil, M.D., to whom claimant was referred 
 
         by her treating doctor, James L. Flood, M.D., saw claimant at his 
 
         office July 2, 1987 and wrote in his July 23, 1987 report:
 
         
 
                   When she was initially seen on 2 July 1987 she was told 
 
              not to work until further notice and was told to see Doctor 
 
              Flood in Denison within the next week or so.
 
         
 
                   She returned to my office on 21 July 1987 and still had 
 
              complaints of discomfort in the neck and posterior shoulder 
 
     
 
                             
 
                                                         
 
              area.  As previously mentioned, she has not had a specific 
 
              injury, but the symptoms are related to her working 
 
              conditions.  She had previously been seen by Doctor Ed 
 
              Schima, a neurologist and no neurologic deficit was found.
 
         
 
                   My opinion was that she should continue symptomatic 
 
              care at this time which would include the use of analgesics, 
 
              heat to the affected area, and appropriate restriction of 
 
              activity.  I sent a letter to Farmland Food, Inc., 
 
              indicating that she should be considered for lighter work.  
 
              She should not lift more than 10 pounds and should work at 
 
              table height. She should not be expected to lift her arms 
 
              above her shoulder or do any twisting or throwing with her 
 
              body.
 
         
 
                   It is my opinion that the work that she was doing 
 
              previously contributed to this condition.
 
         
 
         (Jt. Ex. 10(2)
 
         
 
              On September 9, 1987, Dr. Kratochvil further wrote:
 
         
 
                   Barbara E. Kohnekamp was seen by me in July 1987 
 
              because of painful shoulder, back, neck, and arms.  She also 
 
              complained of headaches resulting from a work related injury 
 
              on 3 June 1987.  My diagnoses was cervical myalgia and 
 
              myalgia of the left upper extremity.  There was no specific 
 
              injury, but the symptoms are related to her working 
 
              conditions.  She had been seen by Doctor Ed Schima, a 
 
              neurologist in Omaha, and no neurological deficit was 
 
              found.
 
         
 
                   It was my opinion that she has a 10 percent permanent 
 
              impairment of the whole body.  There are no objective 
 
              findings in this case, but primarily subjective complaints.
 
         
 
         (Jt. Ex. 5)
 
         
 
              Pursuant to an examination of Edward M. Schima, M.D., on 
 
         June 17, 1987, he opined that he didn't think claimant was 
 
         significantly disabled by her condition.  He suspected cervical 
 
         strain and muscle contraction headaches.  Her neurological 
 
         examination was completely normal.  Dr. Schima wrote on August 
 
         28, 1987 that he had examined claimant on October 28, 1974 
 
         pursuant to her complaints of a dead feeling in the arms, 
 
         shock-like sensations in one, two and three digits of the left 
 
         hand, weakness in the left hand, and pain in the left shoulder 
 
         resulting from claimant doing heavy work, lifting 90 to 100 pound 
 
         trays or picnic hams.  At the time of this October 1974 
 
         discharge, claimant was asymptomatic.  Claimant returned to him 
 
         November 1974 with similar complaints.
 
         
 
              Dr. Schima further wrote on August 28, 1987 pursuant to his 
 
         examination of claimant on June 17, 1987:
 
         
 
                                                
 
                                                         
 
              CLINICAL IMPRESSION:  1.  Cervical strain
 
         
 
                                   2.  Possible carpal-tunnel syndrome.
 
         
 
                                   3.  Rule out cervical spondylosis.
 
         
 
         
 
              COMMENT:  The.recent history is brief and begins several 
 
              weeks ago with pain involving both arms and a history of 
 
              recurrent neck pain extending back five to six years.  The 
 
              neurological examination today is completely normal, and I 
 
              suspect her symptoms are primarily muscular in origin, 
 
              although the numbness in both hands would certainly raise 
 
              the question of additional compressive neuropathy or 
 
              cervical spondylosis with an accompanying radiculopathy.
 
         
 
         (Jt. Ex. 7(2)
 
         
 
              James L. Flood, M.D., wrote on July 20, 1987:
 
         
 
                   Concerning Barbara Kohnekamp, I reviewed the records on 
 
              Barbara and the problem seems to resort back; I saw her on 
 
              6-24-87.  Each time she had neuritis and myositis of the 
 
              back and shoulders.
 
         
 
                   Basically, it is that the work is too strenous [sic] 
 
              for her.  I am not saying that the work caused it, it is 
 
              just in her case that physically she is not strong enough to 
 
              do this type of work.  I sent her also to an orthopedic 
 
              surgeon who agreed that it is a myositis or myalgia of the 
 
              upper extermities [sic] probably related to her strenous 
 
              [sic] working conditions.
 
         
 
                   We realize that people at plants have to do strenous 
 
              [sic] work, so we are not increminating [sic] the plant in 
 
              this regard as far as her prognosis.  I feel that she 
 
              probably will not improve until she stops her job and when 
 
              she goes back to do it, these symptoms will reoccur.  There 
 
              is no specific therapy other than an algesic for relief of 
 
              her pain.  She just is not a strong enough lady to do this 
 
              type of work and I have told her so.
 
         
 
         (Jt. Ex. 14)
 
         
 
              On July 23, 1987, Dr. Flood further wrote:
 
         
 
                   You asked me my opinion about Barbara Kohnekamp's 
 
              injury which is a myositis, basically of her muscles, 
 
              possibly secondary to working at Farmland.
 
         
 
                   I think basically, we should understand that some 
 
              people are able to do repetitive work for years and suffer 
 
              relatively little discomfort.  Others, because of their 
 
              makeup are not able to handle the jobs and a job certainly 
 
              can cause wear and tear on the joints and muscles.  Is it 
 
                                                
 
                                                         
 
                   the plants [sic] fault that some people can not tolerate 
 
              this activity without suffering discomfort or is it just 
 
              because of the physical makeup of the individual.  It is a 
 
              very difficult question to answer as I am sure you are well 
 
              aware.
 
         
 
         (Jt. Ex. 11)
 
         
 
              The medical records of Dr. Ronald H. Dreyer, a chiropractor, 
 
         indicate he provided services to the claimant in December 1979 
 
         through June 30, 1982 for complaints of low back, high back and 
 
         neck pain, and numbness in the arms while sleeping.
 
         
 
                        APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that claimant received an injury which arose out of and 
 
         in the course of employment.  The words "out of" refer to the 
 
         cause or source of the injury.  The words "in the course of" 
 
         refer to the time and place and circumstances of the injury.  
 
         See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 
 
         1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955). An employer takes an employee subject to any 
 
         active or dormant health impairments, and a work connected injury 
 
         which more than slightly aggravates the condition is considered 
 
         to be a personal injury.  Ziegler, 252 Iowa 613, 620, 106 N.W.2d 
 
         591, and cases cited.
 
         
 
              It is not necessary that claimant prove his disability 
 
         results from a sudden unexpected traumatic event.  It is 
 
         sufficient to show that a disability developed gradually or 
 
         progressively from work activity over a period of time.  McKeever 
 
         Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).  The 
 
         McKeever court also held that the date of injury in a gradual 
 
         injury case is the time when pain prevents the employee from 
 
         continuing to work.  In McKeever the injury date coincides with 
 
         the time claimant was finally compelled to give up his job.  This 
 
         date was then utilized in determining rate and the timeliness of 
 
         the claimant's claim under Iowa Code section 85.26 and notice 
 
         under Iowa Code section 85.23.
 
         
 
              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).  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language and 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Sondag.v. Ferris Hardware, 220 
 
         N.W.2d 903,(Iowa 1974).  The weight to be given to such an 
 
         opinion is for the finder of fact, and that may be affected by 
 
         the completeness of the premise given the expert and other 
 
         surrounding circumstances.  Bodish v. Fischer, Inc., 257 Iowa 
 
         516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient alone to support a finding of causal connection, 
 
                                                
 
                                                         
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Aase 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). 
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  In the case of a preexisting condition, an employee 
 
         is not entitled to recover for the results of a preexisting 
 
         injury or disease but can recover for an aggravation thereof 
 
         which resulted in the disability found to exist.  Olson, 255 Iowa 
 
         1112, 125 N.W.2d 251.
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, (1960).
 
         
 
              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.
 
         
 
              As a claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."'
 
                        
 
                                                         
 
         
 
              The opinion of the supreme court in Olson v. Goodyear 
 
         Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963) at 1121, 
 
         cited with approval a decision of the industrial commissioner for 
 
         the following proposition:
 
         
 
              Disability * * * as defined by the Compensation Act means 
 
              industrial disability, although functional disability is an 
 
              element to be considered . . . In determining industrial 
 
              disability, consideration may be given to the injured 
 
              employee's age, education, qualifications, experience and 
 
              his inability, because of the injury, to engage in 
 
              employment for which he is fitted.
 
         
 
              For example, a defendant employer's refusal to give any sort 
 
         of work to a claimant after he suffers his affliction may justify 
 
         an award of disability.  McSpadden v. Big Ben Coal Co., 288 
 
         N.W.2d 181 (Iowa 1980).
 
         
 
              Similarly, a claimant's inability to find other suitable 
 
         work after making bona fide efforts to find such work may 
 
         indicate that relief would be granted.  McSpadden, 288 N.W.2d 
 
         181.
 
         
 
              Claimant has met her burden of proof that her injury arose 
 
         out of and in the course of her employment.  Claimant received a 
 
         cumulative injury on June 11, 1987.  Claimant was off work a 
 
         little more then 30 days after having tried to continue working 
 
         on a lighter duty basis.  It is this June 11, 1987 date that is 
 
         determined as to when the statute of limitations would begin to 
 
         run.  Claimant filed her petition December 7, 1987 which was 
 
         timely under section 85.26.
 
         
 
              The greater weight of evidence also indicates that 
 
         claimant's present complaints are causally connected to the 
 
         cumulative injury of June 11, 1987.
 
         
 
              Iowa code section 85.34(1) provides that if an employee has 
 
         suffered a personal injury causing permanent partial disability, 
 
         the employer shall pay compensation for a healing period from the 
 
         day of the injury until (1) the employee returns to work; or (2) 
 
         it is medically indicated that significant improvement from the 
 
         injury is not anticipated; or (3) until the employee is medically 
 
         capable of returning to substantially similar employment.
 
         
 
              The medical testimony leaves much to be desired.  It is a 
 
         fact that since 1974 claimant has had to different degrees, 
 
         similar problems, at least in part, to what her present 
 
         complaints are.  In other words, back, neck, and hand pain, left 
 
         shoulder and hand weakness.  It is also a fact that never before 
 
         has such pain or symptoms so debilitated the claimant as they 
 
         have, causing her to quit her employment in September 1987.  In 
 
         September 1987, claimant was in such pain when she worked that 
 
         she was unable to do the required work.  It appears both parties 
 
         consider the claimant employed by defendant employer but with no 
 
                                                
 
                                                         
 
         work.  A job with no work nor duties is not job.  Prior symptoms 
 
         for which claimant suffered seemed to result from the nature of 
 
         claimant's work.  Claimant has had bumps, bruises, slips and 
 
         hurts throughout her seventeen years with defendant employer.  
 
         Over the years, the continual work actions had an effect on 
 
         claimant's body in a continuous, traumatic way, none actually 
 
         causing a sudden discernible injury but building upon the body's 
 
         structure by this claimant's effort and work loyalty and work 
 
         ethics with this defendant.  Finally, claimant could no longer 
 
         put up with the pain.  This claimant was not a complainer and it 
 
         should not be held against her that she put up with the pain from 
 
         her strenuous job longer than might otherwise be expected.  No 
 
         one trauma or event caused claimant's present problems, but a 
 
         series of events over a period of time.  Claimant is a willing 
 
         worker.  Claimant has been offered no other job by defendant 
 
         employer although claimant has made an outstanding offer to try 
 
         to work with defendant employer within the doctor's restrictions 
 
         and claimant's ability.  The defendant employer told claimant, 
 
         "we will call you."  Claimant has not been called.
 
         
 
              This 54 year old claimant with a high school education and 
 
         with no special training since high school had worked for 
 
         defendant employer since 1970 and the work was strenuous, 
 
         continual, requiring constant types of body motions, lifting, 
 
         twisting and turning.  The type of work that claimant was doing 
 
         over these seventeen years and the.pace and quotas which were 
 
         required did have an effect on claimant's body culminating in her 
 
         present physical condition and necessity to quit work with this 
 
         particular employer.
 
         
 
              Dr. Agarwal opined that claimant has a 5 percent permanent 
 
         partial impairment to the whole body but based this on claimant's 
 
         symptoms rather than on any objective clinical and laboratory 
 
         findings.  Dr. Kratochvil opined that claimant has a 10 percent 
 
         permanent impairment of the whole body based primarily on 
 
         subjective complaints.  He made no objective findings.
 
         
 
              Medicine is not an exact science and all medical problems 
 
         cannot be determined with the exactness we would like.
 
         
 
              Claimant has attempted to find employment with her 
 
         restrictions.  Claimant's prospects appear that if she would be 
 
         hired by someone other than defendant employer, she would be 
 
         making minimum wage or thereabout, but nothing like the $9.10 per 
 
         hour she was earning when she last worked for defendant.
 
         
 
              As indicated earlier, claimant has been given a 5 percent 
 
         and a 10 percent rating of permanent partial impairment to the 
 
         body as a whole.  Functional disability is one of the elements to 
 
         be considered in determining industrial disability.  Considering 
 
         claimant's age, education, qualifications, experience and her 
 
         inability because of the injury to engage in employment for which 
 
         she is suited, claimant has a 20 percent industrial disability.
 
         
 
              Claimant reached maximum healing on July 14, 1987.  Claimant 
 
                                                
 
                                                         
 
         was off work beginning June 11, 1987 to July 14, 1987, inclusive. 
 
         Claimant alleged March 26, 1987 in her petition as the injury 
 
         date.  In fact, June 11, 1987 is the actual cumulative injury 
 
         date when claimant was unable to return to work.  This difference 
 
         in dates is not material in this case.  Yeager v. Firestone Tire 
 
         & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961).
 
         
 
              Section 343-4,33(86) sets out the costs that can be allowed 
 
         unless otherwise agreed to by the parties.  The cost of a copy of 
 
         a deposition or more than two doctor or practitioner reports are 
 
         not allowed.  The reports of Dr. Bernard Kratochvil for $50 and 
 
         Dr. Agarwal for $90 are to be allowed as part of the costs.
 
         
 
                             FINDINGS OF FACT
 
         
 
              WHEREFORE, it is found:
 
         
 
              1.  Claimant was injured while working for defendant 
 
         employer.
 
         
 
              2.  Claimant's disability is the result of a cumulative work 
 
         injury of June 11, 1987.
 
         
 
              3.  On September 4, 1987, claimant quit work because her 
 
         pain and cumulative trauma caused her too much of a problem.
 
         
 
              4.  Claimant worked for defendant employer seventeen years. 
 
         Her work involved strenuous and continuous lifting, twisting and 
 
         turning of her body.
 
         
 
              5.  Claimant has not been gainfully employed since September 
 
         4, 1987.
 
         
 
              6. Claimant has an impairment to her body as a whole.
 
         
 
              7.  Claimant was off work beginning June 11, 1987 to July 
 
         14, 1987, inclusive, and July 22, 1987 to August 17, 1987, 
 
         inclusive.
 
         
 
              8.  Claimant reached maximum healing on July 14, 1987.
 
         
 
              9.  Claimant has an actual loss of earning capacity.
 
         
 
              10.  Claimant sought employment since her injury and has not 
 
         found employment.  Claimant has offered to return to employment 
 
         with defendant-employer but defendant employer has not responded 
 
         with a job.
 
         
 
              11.  Claimant timely filed a petition December 4, 1987.
 
         
 
              12.  Claimant incurred costs of a copy of claimant's 
 
         deposition and four medical reports from Drs. Agarwal, 
 
         Kratochvil, and Flood.
 
         
 
              13.  Claimant's current work restrictions encompass:  
 
                                                
 
                                                         
 
         Lifting no more than 10 pounds, work at table height, lifting 
 
         arms above shoulders, and no twisting or throwing with her body.
 
         
 
              14.  Claimant is entitled to be reimbursed for reports from 
 
         only two doctors.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              THEREFORE, it is concluded:
 
         
 
              Claimant's injury arose out of and in the course of her 
 
         employment.
 
         
 
              Claimant's disability is causally connected to the 
 
         cumulative work injury of June 11, 1987.
 
         
 
              Claimant is entitled to 20 percent permanent partial 
 
         disability to the body as a whole.
 
         
 
              Claimant's permanent partial disability benefits are to 
 
         begin July 15, 1987.
 
         
 
              Claimant is entitled to healing period benefits beginning 
 
         June 11, 1987 to July 14, 1987, inclusive.
 
         
 
              Claimant is entitled to be reimbursed for reports from Dr. 
 
         Agarwal in the amount of $90.00 and Dr. Kratochvil in the amount 
 
         of $50.00.
 
         
 
              Claimant's petition was timely filed and is not barred by 
 
         Iowa Code section 85.26.
 
         
 
                                    ORDER
 
 
 
                        
 
                                                         
 
         
 
              THEREFORE, it is ordered:
 
         
 
              Defendants shall pay claimant one hundred (100) weeks of 
 
         permanent partial disability benefits at the rate of two hundred 
 
         seventy-two and 91/100 dollars ($272.91) per week from July 15, 
 
         1987.
 
         
 
              Defendants shall pay unto claimant four and six-sevenths (4 
 
         6/7) weeks of healing period benefits for the period beginning 
 
         June 11, 1987 to July 14, 1987, inclusive, at the rate of two 
 
         hundred seventy-two and 91/100 dollars ($272.91) per week.
 
         
 
              Defendants shall reimburse claimant for ninety dollars 
 
         (90.00) for Dr. Agarwal's report and fifty dollars (50.00) for 
 
         Dr. Kratochvil report.
 
         
 
              Defendants are to receive credit for benefits previously 
 
         paid.
 
         
 
              Defendants shall pay the accrued weekly benefits in a lump 
 
         sum.
 
         
 
              Defendants shall pay interest on benefits awarded herein as 
 
         set forth in Iowa Code section 85.30.
 
         
 
              Defendants shall pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendants shall file an activity report upon payment of 
 
         this award as required by this agency pursuant to Division of 
 
         Industrial Services-Rule 343-3.1.
 
         
 
              Signed and filed this 13th day of March, 1989.
 
         
 
         
 
         
 
         
 
                                            BERNARD J. O'MALLEY
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Sheldon M. Gallner
 
         Attorney at Law
 
         803 3rd Ave
 
         P.O. Box 1588
 
         Council bluffs, IA  51502
 
         
 
         Mr. Charles T. Patterson
 
         Attorney at Law
 
         200 Home Federal Bldg
 
         P.O. Box 3086
 
         Sioux City, IA  51102
 
 
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1803; 2209
 
                                            Filed March 13, 1989
 
                                            Bernard J. O'Malley
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BARBARA KOHNEKAMP,
 
         
 
              Claimant,
 
                                                    File No. 856746
 
         vs.
 
         
 
         FARMLAND FOODS,                         A R B I T R A T I 0 N
 
         
 
              Employer,                             D E C I S I 0 N
 
         
 
         and
 
         
 
         AETNA CASUALTY & SURETY CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1803; 2209
 
         
 
            Claimant awarded 20% industrial disability due to a cumulative 
 
         trauma.
 
 
 
         
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LONNIE D. MEAIKE,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 856773
 
            FARMLAND FOODS,               :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Lonnie D. Meaike, against his employer, 
 
            Farmland Foods, and its insurance carrier, Aetna Casualty & 
 
            Surety, defendants.  The case was heard on May 2, 1990, in 
 
            Sioux City, Iowa at the office of the industrial 
 
            commissioner.  The record consists of the testimony of 
 
            claimant as well as the testimonies of Kenny M. Summerfield, 
 
            James C. Mead, Nancy Wiese, and Pat G. Conway.  
 
            Additionally, the record consists of joint exhibits 1-54.
 
            
 
                                      issues
 
            
 
                 The sole issues to be determined are:  1) Whether 
 
            claimant is entitled to temporary disability/healing period 
 
            benefits or permanent partial or total disability benefits; 
 
            and, 2) Whether claimant is entitled to medical benefits 
 
            under section 85.27.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant is 32 years old and a high school graduate.  
 
            He has served in the U.S. Marine Corps.
 
            
 
                 Claimant was hired by defendant-employer to work on the 
 
            kill floor.  He commenced his employment on October 4, 1982, 
 
            where he was assigned the duties of pulling snouts and 
 
            separating black gut.  Claimant performed those tasks from 
 
            the onset of his employment through July 7, 1987.  After 
 
            July 7, 1987, claimant performed duties as a janitor where 
 
            he was required to clean the cafe and the bathrooms and 
 
            where he served as back-up to the main janitor.
 
            
 
                 Claimant reported to his foreman on the kill floor at 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            6:45 a.m. on July 7, 1987.  Claimant was ordered to leave 
 
            the floor and to obtain various knives for the operation.  
 
            The floor was wet and claimant slipped and twisted his back.  
 
            Claimant, on the same day, was also climbing the cat-walk 
 
            and he twisted his back.  He indicated he felt pain in his 
 
            back and down his right leg.
 
            
 
                 Claimant sought medical treatment from the company 
 
            nurse, Nancy Wiese.  She, in turn, scheduled an appointment 
 
            for claimant with the company physician, James L. Flood, 
 
            M.D.
 
            
 
                 Claimant received various modes of medical treatment.  
 
            Eventually claimant was referred to Robert R. Sundell, M.D., 
 
            a neurologist.  Claimant was also treated by Thomas P. 
 
            Ferlic, M.D., an orthopedic surgeon.  Claimant was 
 
            periodically off work because of his back.  However, after 
 
            each absence, claimant was released to return to work.
 
            
 
                 Then on February 28, 1989, an incident occurred while 
 
            claimant was working in the plant breaking chitlins.  A 
 
            female co-employee jumped onto claimant's back and wiped 
 
            manure across claimant's face.  Claimant sought medical 
 
            attention for his back on March 1, 1989.  He indicated he 
 
            was again off work because of his injury.
 
            
 
                 Michael T. O'Neil, M.D., an orthopedic surgeon and a 
 
            partner of Dr. Ferlic's, performed surgery on claimant on 
 
            June 7, 1989.  Dr. O'Neil performed a decompression lumbar 
 
            laminectomy, L4-L5, left and right, with partial L4 
 
            diskectomy.  As of November 9, 1989, Dr. O'Neil opined:
 
            
 
                 I feel that Mr. Meaike has reached maximum medial 
 
                 [sic] improvement at this time.  I do not feel 
 
                 that any further treatment will be of help in 
 
                 alleviating the symptoms.  I think that he should 
 
                 try and return to work with restriction, including 
 
                 no repeative [sic] stooping, bending or twisting 
 
                 and no lifting than more than 20 to 25 pounds 
 
                 repeatedly [sic].  I believe that, with resonable 
 
                 [sic] medical certainity [sic], that he is 
 
                 entitled to a 10% permanent impairment of the body 
 
                 as a whole.  If he cannot engage in his former 
 
                 work at Farmland Foods, I would certainly agree 
 
                 that a rehabilitation program would be helpful.
 
            
 
                 Dr. O'Neil later modified his opinion.  On March 13, 
 
            1990, Dr. O'Neil wrote:
 
            
 
                 I am also enclosing copies of the recent MRI and 
 
                 myelogram and CT scan of the lumbar spine.  I 
 
                 believe that Mr. Meaike has reached maximum 
 
                 medical improvement.  I believe that he is 
 
                 entitled to a 20 percent permanent physical 
 
                 impairment and loss of physical function of the 
 
                 body as a whole as a result of his surgery with 
 
                 persistent moderate to severe pain.  I do not feel 
 
                 that any other treatment is appropriate at this 
 
                 time.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Claimant returned to work on November 11, l989, where 
 
            he was assigned the task of breaking chitlins.  Claimant was 
 
            situated over a drain and the floor was slanted.  He 
 
            indicated his chair was at an angle and it was difficult for 
 
            him to work at that station.  Claimant also stated he began 
 
            to experience muscle spasms in his back and he left work at 
 
            11:30 a.m.  On November 15, 1989, claimant received a 
 
            termination notice from the company.  He reported he was 
 
            terminated for medical reasons.  At the time of the hearing, 
 
            claimant had not obtained employment.
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of July 7, 
 
            1987, is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 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).
 
            
 
                 When an aggravation occurs in the performance of an 
 
            employer's work and a causal connection is established, 
 
            claimant may recover to the extent of the impairment.  
 
            Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 
 
            N.W.2d 591, 595 (1960).
 
            
 
                 The Iowa Supreme Court cites, apparently with approval, 
 
            the C.J.S. statement that the aggravation should be material 
 
            if it is to be compensable.  Yeager v. Firestone Tire & 
 
            Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Workmen's Compensation sec. 555(17)a.
 
            
 
                 Our supreme court has stated many times that a claimant 
 
            may recover for a work connected aggravation of a 
 
            preexisting condition.  Almquist v. Shenandoah Nurseries, 
 
            218 Iowa 724, 254 N.W. 35 (1934).  See also Auxier v. 
 
            Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek 
 
            v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz 
 
            v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. 
 
            Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
            (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); 
 
            Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960).
 
            
 
                 An employer takes an employee subject to any active or 
 
            dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler, 252 Iowa 613, 
 
            620, 106 N.W.2d 591 (1960), and cases cited.
 
            
 
                 An employee is not entitled to recover for the results 
 
            of a preexisting injury or disease but can recover for an 
 
            aggravation thereof which resulted in the disability found 
 
            to exist.  Olson, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 
 
            Iowa 613, 106 N.W.2d 591 (1960).  See also Barz, 257 Iowa 
 
            508, 133 N.W.2d 704 (1965); Almquist, 218 Iowa 724, 254 N.W. 
 
            35 (1934).
 
            
 
                 When a worker sustains an injury, later sustains 
 
            another injury, and subsequently seeks to reopen an award 
 
            predicated on the first injury, he or she must prove one of 
 
            two things: (a) that the disability for which he or she 
 
            seeks additional compensation was proximately caused by the 
 
            first injury, or (b) that the second injury (and ensuing 
 
            disability) was proximately caused by the first injury.  
 
            DeShaw v. Energy Manufacturing Company, 192 N.W.2d 777, 780 
 
            (Iowa 1971). 
 
            
 
                 Claimant has proven by a preponderance of the evidence 
 
            that his condition is causally connected to his work injury 
 
            of July 7, 1987.  Medical opinion supports claimant's 
 
            contentions.  Dr. O'Neil, while acknowledging claimant had a 
 
            preexisting condition, nevertheless, opined on July 12, 
 
            1989:
 
            
 
                 As you know, Mr. Maeike was referred to me by my 
 
                 partner Dr. Thomas Ferlic.  I also saw Mr. Maeike 
 
                 for another opinion at the request of Dr. John 
 
                 Greene.  The original CT scan of the lumbar spine 
 
                 obtained in 1987 and the repeat CT scan taken in 
 
                 May of 1989 are identical.  I believe that this 
 
                 defect is caused by a disc protrusion at L4-L5.  
 
                 This protrusion was confirmed at the time of his 
 
                 lumbar laminotomy on June 7, 1989.  I do not 
 
                 believe that the defect was caused by the con
 
                 genital narrowing of the canal at this level.  I 
 
                 believe that the narrowing has been present since 
 
                 birth and should be considered a relative spinal 
 
                 stenosis.  This condition accentuated the lumbar 
 
                 disc herniation that occurred on July 7, 1987 in 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 that the canal was somewhat narrowed to begin 
 
                 with.  It did not take much of a disc protrusion 
 
                 at the L4-L5 level to cause his symptoms because 
 
                 of the narrowing of the canal which pre-existed 
 
                 the injury.  Nevertheless, had he not sustained an 
 
                 injury, he would not have had the back and leg 
 
                 symptoms and would not have required surgery.  I 
 
                 do not believe that the spinal stenosis or the 
 
                 lumbar disc herniation at L4-L5 was caused by 
 
                 Scheuermann's disease or juvenile vertebral 
 
                 apophysitis.
 
            
 
                 Dr. O'Neil also wrote in his report of August 1, 1989:
 
            
 
                 There is absolutely no causal connection between a 
 
                 possible Scheuermann's [sic] disease of the dorsal 
 
                 and lumbar spine and Mr. Meaike's work related 
 
                 injury of July 7, 1987.  I continue to believe 
 
                 that Mr. Mike's back injury of July 7 1987, 
 
                 resulted in a protrusion of a lumbar disc at a 
 
                 level with pre-existing spinal stenosis, which is 
 
                 not caused by Schaumann's [sic] disease.  I also 
 
                 feel that the disc herniation was substantiated on 
 
                 a Cat scan of the lumbar spine and a myelogram 
 
                 performed in September 1987, at Clarkson Hospital.  
 
                 A repeat Cat scan of the lumbar spine obtained in 
 
                 May of 1988 showed no change in the disc 
 
                 protrussion [sic].
 
            
 
                 Based upon the opinion of Dr. O'Neil, it is the 
 
            determination of the undersigned that claimant's condition 
 
            is causally connected to his work injury of July 7, 1987.
 
            
 
                 The next issue to address is the nature and extent of 
 
            claimant's injury.  Claimant alleges he has an industrial 
 
            disability.
 
            
 
                 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."
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985);  Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 For example, a defendant employer's refusal to give any 
 
            sort of work to a claimant after he suffers his affliction 
 
            may justify an award of disability.  McSpadden v. Big Ben 
 
            Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
            
 
                 Similarly, a claimant's inability to find other 
 
            suitable work after making bona fide efforts to find such 
 
            work may indicate that relief would be granted.  McSpadden, 
 
            388 N.W.2d 181 (Iowa 1980).
 
            
 
                 Dr. O'Neil has provided physical impairment ratings of 
 
            10-20 percent.  Claimant is restricted in his physical 
 
            activities.  He is not to engage in repetitive stooping, 
 
            bending or twisting.  He is not to lift repetitively more 
 
            than 20-25 pounds.  Defendant-employer has refused to find a 
 
            job which claimant can perform.  Claimant has been 
 
            terminated.
 
            
 
                 Claimant has been unsuccessful in obtaining employment.  
 
            He appears highly motivated to seek employment.  Ms. Pat 
 
            Conway, the vocational consultant and hired by defendants, 
 
            listed 10 positions where "jobs exist in the labor market."  
 
            According to Ms. Conway's report, "[t]hese employers either 
 
            have existing positions or will take applications and fill 
 
            positions on a regular basis."
 
            
 
                 Claimant testified he has contacted each of the ten 
 
            employers.  None was hiring.  Claimant has not even been 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            given any possibility that a position will open in the 
 
            future.
 
            
 
                 In addition to the above, claimant has applied at 32 
 
            other business.  He is unable to obtain employment.
 
            
 
                 It appears claimant may need some type of retraining if 
 
            he expects to obtain employment comparable to the wage rate 
 
            he has received at defendant-employer.  Claimant has 
 
            investigated possible enrollment at Morningside College.  
 
            Claimant's age is working in his favor.  He should be 
 
            encouraged in his endeavors.
 
            
 
                 After considering all of the above, as well as 
 
            claimant's demeanor at the hearing, it is the determination 
 
            of the undersigned that claimant has an industrial 
 
            disability.  He is entitled to weekly benefits in the amount 
 
            of 40 percent commencing on November 10, 1989.
 
            
 
                 The next issue to address is whether claimant is 
 
            entitled to healing period benefits from November 16, 1989 
 
            to March 12, 1990.  The answer is in the negative.  As of 
 
            November 9, 1989, claimant reached maximum medical 
 
            improvement according to the treating physician, Dr. O'Neil.  
 
            Therefore, claimant's healing period is ended as of that 
 
            date.
 
            
 
                 The final issue to discuss is medical expenses under 
 
            section 85.27.  This section provides in relevant portion:
 
            
 
                 The employer, for all injuries compensable under 
 
                 this chapter or chapter 85A, shall furnish 
 
                 reasonable surgical, medical, dental, osteopathic, 
 
                 chiropractic, podiatric, physical rehabilitation, 
 
                 nursing, ambulance and hospital services and 
 
                 supplies therefor and shall allow reasonably 
 
                 necessary transportation expenses incurred for 
 
                 such services.  The employer shall also furnish 
 
                 reasonable and necessary crutches, artificial 
 
                 members and appliances but shall not be required 
 
                 to furnish more than one set of permanent 
 
                 prosthetic devices.
 
            
 
                     ...
 
            
 
                 For purposes of this section, the employer is 
 
                 obliged to furnish reasonable services and 
 
                 supplies to treat an injured employee, and has the 
 
                 right to choose the care.  The treatment must be 
 
                 offered promptly and be reasonably suited to treat 
 
                 the injury without undue inconvenience to the 
 
                 employee.  If the employee has reason to be 
 
                 dissatisfied with the care offered, the employee 
 
                 should communicate the basis of such 
 
                 dissatisfaction to the employer, in writing if 
 
                 requested, following which the employer and the 
 
                 employee may agree to alternate care reasonably 
 
                 suited to treat the injury.  If the employer and 
 
                 employee cannot agree on such alternate care, the 
 
                 commissioner may, upon application and reasonable 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 proofs of the necessity therefor, allow and order 
 
                 other care.  In an emergency, the employee may 
 
                 choose the employee's care at the employer's 
 
                 expense, provided the employer or the employer's 
 
                 agent cannot be reached immediately.
 
            
 
                 With respect to the issue of medical benefits under 
 
            section 85.27, claimant requests reimbursement for various 
 
            expenditures.  Defendants assert the bills are not causally 
 
            connected to claimant's work injury and that the treatment 
 
            from Dr. O'Neil is not authorized and not reimbursable.
 
            
 
                 The undersigned determines that even if the following 
 
            medical expenses are not authorized, defendants are liable 
 
            for the same.  Unauthorized treatment which improves an 
 
            employee's condition and which ultimately may mitigate the 
 
            employer's liability may subsequently be found reasonable 
 
            and necessary for treatment of an injury.  Butcher v. Valley 
 
            Sheet Metal, IV Iowa Industrial Commissioner Report 49 
 
            (Appeal Decision 1983); Rittgers v. United Parcel Service, 
 
            III Iowa Industrial Commissioner Report 210 (Appeal Decision 
 
            1982); Hutchinson v. American Freight Systems, Inc., I-l 
 
            Iowa Industrial Commissioner Decision 94 (Appeal Decision 
 
            1984).  The evidence, in the instant proceeding, is 
 
            uncontroverted.  Claimant's condition did improve subsequent 
 
            to the surgery which he received from Dr. O'Neil.
 
            
 
                 
 
                 Defendants are liable for:
 
                 Radiology Nuclear Medicine, Inc.
 
                 The Doctors Building
 
                 4239 Farnam Street, Suite 734 So.
 
                 Omaha,  NE  68131
 
                 (5/03/89)                                 $  130.00
 
                 (2/06/90)                                    330.00
 
            
 
                 Physicians Anesthesia Services, P.C.
 
                 401 The Doctors Building
 
                 4239 Farnam Street
 
                 Omaha,  NE  68131
 
                 (6/07/89)                                     45.00
 
            
 
                 Michael T. O'Neil, M.D.
 
                 4239 Farnam Street, Ste. 609
 
                 Omaha  NE  68131
 
                 (6/07/89)                                  2,250.00
 
            
 
                 Bishop Clarkson Memorial Hospital
 
                 44th & Dewey Avenue
 
                 Omaha,  NE  68105-1018
 
                 (5/03/89)                                    315.00
 
                 (6/06/89 - 6/17/89) Balance due              370.61
 
                 (1/25/90)                                    856.65
 
                 ((2/07/90 - 2/09/90)                         753.85
 
                                          Total            $5,051.11
 
            
 
            
 
            
 
                                      order
 
            
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants are to pay two hundred (200) weeks of 
 
            permanent partial disability benefits to claimant at the 
 
            stipulated rate of two hundred thirty-eight and 07/l00 
 
            dollars ($238.07) per week commencing on November 10, 1989.
 
            
 
                 Defendants are to also pay the medical expenses listed 
 
            previously in the sum of five thousand fifty-one and 11/l00 
 
            dollars ($5,051.11).
 
            
 
                 Payments that have accrued shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 Defendants shall be given credit for all benefits 
 
            previously paid.
 
            
 
                 Costs of the action shall be assessed to defendants 
 
            pursuant to Division of Industrial Services Rule 343-4.33 as 
 
            follows:
 
            
 
                 
 
                      Filing Fee                  $ 65.00
 
                      Midlands Rehabilitation     $150.00
 
            
 
                 Defendants shall file a claim activity report as 
 
            requested by this division pursuant to Division of 
 
            Industrial Services Rule 343-3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of July, 1990.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Sheldon M. Gallner
 
            Attorney at Law
 
            803 3rd Ave
 
            P O Box 1588
 
            Council Bluffs  IA  51502
 
            
 
            Ms. Judith Ann Higgs
 
            Attorney at Law
 
            701 Pierce St, STE 200
 
            P O Box 3086
 
            Sioux City  IA  51102
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    5-1803
 
                                                    Filed July 13, 1990
 
                                                    MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LONNIE D. MEAIKE,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 856773
 
            FARMLAND FOODS,               :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1803
 
            Claimant was awarded 40 percent industrial disability.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            STEVEN BENSON,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 856839
 
            FLEETGUARD, INC.,             :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Steven Benson, against his employer, 
 
            Fleetguard, Inc., and its insurance carrier, Liberty Mutual 
 
            Insurance Company, defendants.  The case was heard on 
 
            December 13, 1989, in Mason City, Iowa at the Cerro Gordo 
 
            County Courthouse.  The record consists of the testimony of 
 
            claimant as well as the testimony of Jeff Neuwohner, safety 
 
            and health officer at defendant-employer's establishment.  
 
            The record also consists of claimant's exhibits 1-18, 21 and 
 
            22 and defendants' exhibits A, B and C.
 
            
 
                                      issues
 
            
 
                 The issues to be determined are:  1) whether there is a 
 
            causal relationship between the injury and the disability; 
 
            2) whether claimant is entitled to permanent partial 
 
            disability benefits; and, 3) whether claimant is entitled to 
 
            mileage.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant will be 41 on December 31, 1990.  He has 
 
            completed the eighth grade.  He commenced his employment 
 
            with the predecessor of defendant-employer in 1969.  For the 
 
            major portion of his work career, claimant worked as a setup 
 
            person for the presses.  In November of 1987, claimant 
 
            transferred to the position of press operator.  He was 
 
            required to watch his press in order to insure that it was 
 
            operating properly.  Claimant, as a press operator, could 
 
            stand or sit.  The position paid less than the setup 
 
            position he held.  As a setup person, claimant was paid 
 
            $8.75 per hour.  As a press operator, claimant earned $7.64 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            per hour.  On October 10, 1989, claimant voluntarily 
 
            terminated his employment with defendant.  Subsequent to the 
 
            date of his termination, claimant had begun his own nursery 
 
            business.
 
            
 
                 In December of 1985, an object fell on claimant's neck.  
 
            He reported the incident to his supervisor.  However, the 
 
            supervisor did not fill out a first report of injury.  
 
            Claimant never filed an original notice and petition for any 
 
            alleged injury in December of 1985.  He did seek medical 
 
            attention for that incident.  In April of 1988, claimant was 
 
            also involved in a non-work related motor vehicle accident.
 
            
 
                 On January 31, 1987, claimant was setting up a press.  
 
            He attempted to position or push a dye into place when he 
 
            felt a snapping in his neck.  On that day, he sought medical 
 
            treatment from Dennis E. Colby, D.O., the company physician, 
 
            for defendant-employer.  Dr. Colby diagnosed claimant as 
 
            having "a strain of the sternocleidomastoid muscle and 
 
            trapezius bilaterally."  Dr. Colby treated claimant for a 
 
            period of time, then the physician referred claimant to 
 
            Gordon W. Hovde, M.D., a physician associated with the Back 
 
            Care Center in Albert Lea, Minnesota.
 
            
 
                 Dr. Hovde prescribed a work hardening program.  The 
 
            physician noted claimant had scar tissue, less elasticity 
 
            and less blood supply in the left sternocleidomastoid 
 
            muscle.  At work, claimant was assigned the lighter duty 
 
            position as press operator.  Claimant participated in the 
 
            work hardening program.  As of April 28, 1988, Dr. Hovde 
 
            opined claimant had reached maximum medical improvement.  
 
            The physician did permanently restrict claimant to 1) no 
 
            lifting more than 35 pounds; 2) only minimal bending and 
 
            twisting of the neck, and; 3) to change positions as 
 
            necessary.  Additionally, the physician assessed a four 
 
            percent functional impairment rating.
 
            
 
                 Dr. Hovde referred claimant to an orthopedic surgeon, 
 
            Dr. DeBartolo (first name unknown) for a second opinion on 
 
            May 5, 1988 and on June 8, 1988.  In his notes of June 8, 
 
            1988, the orthopedic surgeon wrote:
 
            
 
                 On evaluation today the review of the radiographs 
 
                 concerning Mr. Benson no evidence of a pathologic 
 
                 process leading to instability or further joint 
 
                 destruction deterioration noted.  The patient on 
 
                 his examination today states that he feels much 
 
                 worse.  His activities have been increased since 
 
                 the last time I saw him, also expresses a great 
 
                 deal of concern about the fact that his employer 
 
                 is looking for a reason to fire him.  I reviewed 
 
                 the CT of his cervical spine, see no evidence of 
 
                 there being significant cervical spine injury and 
 
                 really feel that with his being basically 
 
                 neurologically intact and the duration of his 
 
                 symptoms that consideration of a trial of 
 
                 acupuncture is really the only thing that I would 
 
                 have as course of recommendation and possible 
 
                 improvement. The patient is continuing to work at 
 
     
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Fleetguard, but states that his current job has 
 
                 caused him to be docked in pay.  I reinforced to 
 
                 the patient, I really feel I have nothing further 
 
                 no specific suggestions to make concerning his 
 
                 management, other than the possibility of 
 
                 acupuncture.  He is going to call Dr. Hovde and 
 
                 let him know if he wish to pursue that, is some 
 
                 question whether his insurance carrier would 
 
                 pickup the tab on that issue.
 
            
 
                 Pursuant to section 85.39 of the Iowa Code, claimant 
 
            was examined by John R. Walker, M.D., for purposes of an 
 
            evaluation.  Dr. Walker in his report to claimant's attorney 
 
            opined:
 
            
 
                 OPINION:  This man has a rather puzzling set of 
 
                 circumstances.  To begin with and first, I feel 
 
                 that this patient definitely has an injury to the 
 
                 cervical spine.  This is the type of patient that 
 
                 I would probably bring to Waterloo and put in 
 
                 strong cervical traction, heat and massage, 
 
                 etcetera.  It also may be the type of patient that 
 
                 a competent chiropractor might be able to help and 
 
                 I would certainly have no objections if this 
 
                 method of treatment were at least tried on a 
 
                 limited basis.  Secondly; the patient also appears 
 
                 to have some spasticity of the 
 
                 sternocleidomastoid, possibly with some scarring.  
 
                 The sternocleidomastoid is innervated by the 
 
                 spinal accessory nerve of the llth cranial nerve 
 
                 and probably it has been injured by a direct blow.
 
            
 
                 At this point, I don't believe that adequate 
 
                 treatment has been carried out although he has 
 
                 certainly not been neglected in the sense of the 
 
                 word.  My impression is that if further adequate 
 
                 treatment could be obtained, if he got some 
 
                 relief, he would end up with a permanent, partial 
 
                 impairment of 12% of the whole man on the basis of 
 
                 the above diagnosis and the injuries he has 
 
                 suffered.
 
            
 
                 To repeat, this is a very unusual situation and I 
 
                 am sure that the treating physicians have had a 
 
                 difficult time in evaluating it throughout it's 
 
                 course.  If I can do anything to treat this 
 
                 patient I will be very happy to help, on the other 
 
                 hand, I am sure that this can be handled in the 
 
                 local area as well.
 
            
 
                 Today I did show him the Isometric exercises for 
 
                 the cervical spine which may indeed help him at 
 
                 least on a limited basis.
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of January 31, 
 
            1987, is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            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). 
 
            
 
                 The opinions of experts need not be couched in 
 
            definite, positive or unequivocal language.  Sondag v. 
 
            Ferris Hardward, 220 N.W.2d 903 (Iowa 1974).  An opinion of 
 
            an expert based upon an incomplete history is not binding 
 
            upon the commissioner, but must be weighed together with the 
 
            other disclosed facts and circumstances.  Bodish, 257 Iowa 
 
            516, 133 N.W.2d 867 (1965).  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  Burt, 247 Iowa 691, 73 N.W.2d 732 (1955).  In 
 
            regard to medical testimony, the commissioner is required to 
 
            state the reasons on which testimony is accepted or 
 
            rejected.  Sondag, 220 N.W.2d 903 (1974).
 
            
 
                 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, 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 sur
 
            rounding 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).
 
            
 
                 When an aggravation occurs in the performance of an 
 
            employer's work and a causal connection is established, 
 
            claimant may recover to the extent of the impairment.  
 
            Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 
 
            N.W.2d 591, 595 (1960).
 
            
 
                 The Iowa Supreme Court cites, apparently with approval, 
 
            the C.J.S. statement that the aggravation should be material 
 
            if it is to be compensable.  Yeager v. Firestone Tire & 
 
            Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. 
 
            Workmen's Compensation sec. 555(17)a.
 
            
 
                 Our supreme court has stated many times that a claimant 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            may recover for a work connected aggravation of a 
 
            preexisting condition.  Almquist v. Shenandoah Nurseries, 
 
            218 Iowa 724, 254 N.W. 35 (1934).  See also Auxier v. 
 
            Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek 
 
            v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz 
 
            v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. 
 
            Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
            (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); 
 
            Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960).
 
            
 
                 An employer takes an employee subject to any active or 
 
            dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler, 252 Iowa 613, 
 
            620, 106 N.W.2d 591 (1960), and cases cited.
 
            
 
                 An employee is not entitled to recover for the results 
 
            of a preexisting injury or disease but can recover for an 
 
            aggravation thereof which resulted in the disability found 
 
            to exist.  Olson, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 
 
            Iowa 613, 106 N.W.2d 591 (1960).  See also Barz, 257 Iowa 
 
            508, 133 N.W.2d 704 (1965); Almquist, 218 Iowa 724, 254 N.W. 
 
            35 (1934).
 
            
 
                 In the case before this deputy, the claimant has proven 
 
            by a preponderance of the evidence the requisite causal 
 
            connection between the injury of January 31, 1987 and 
 
            claimant's claimed disability.  While it is undisputed 
 
            claimant has sustained both prior and subsequent injuries to 
 
            his neck and head, claimant's treating physician, Dr. Hovde, 
 
            has described the injury of January 31, 1987, as a 
 
            reaggravation of a prior injury.  Dr. Hovde also has opined 
 
            that the aggravation is more than slight.  Dr. Colby too has 
 
            opined that the incident on January 31, 1987, is an 
 
            aggravation of a preexisting condition and that the aggra
 
            vation is a permanent type of aggravation.  Therefore, in 
 
            light of the foregoing medical evidence, claimant has 
 
            established the requisite causal connection.
 
            
 
                 The next issue to address is whether claimant has 
 
            sustained any permanency.  Dr. Hovde has rated claimant as 
 
            having a four percent functional impairment using the second 
 
            edition of the AMA Guides to the Evaluation of Permanent 
 
            Impairment.  Dr. Walker has rated claimant as having a 12 
 
            percent impairment.  Dr. DeBartolo has not provided a 
 
            permanency rating.  Dr. Colby has described claimant's 
 
            condition as a "permanent disability."  However, Dr. Colby 
 
            has not provided a precise impairment rating.  Nor is he 
 
            able to apportion any permanency to each of the incidents.  
 
            After reviewing all of the medical evidence, it is the 
 
            determination of the undersigned that claimant has a 
 
            functional impairment rating of four percent.  The rating of 
 
            the primary treating physician is given the greatest weight 
 
            since he has had the most opportunity to observe, diagnose 
 
            and treat claimant.
 
            
 
                 With respect to an industrial disability, it is 
 
            expressly noted that claimant has been provided with a 
 
            lighter duty position by defendant-employer.  The position 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            does pay $1.11 less per hour than claimant's position at the 
 
            time of the injury.  However, defendant-employer has made 
 
            every effort to accommodate claimant and to work within 
 
            claimant's restrictions.
 
            
 
                 Claimant, on the other hand, has voluntarily terminated 
 
            his position with defendant-employer.  The decision is not 
 
            based upon any medical recommendations. Moreover, claimant's 
 
            physician has determined that claimant can perform his 
 
            position as a press operator.  Claimant's decision to enter 
 
            into the nursery business is purely his own desire to carry 
 
            on his father's business.
 
            
 
                 Claimant has had only a slight reduction in his earning 
 
            capacity, given his permanent restrictions.  There are some 
 
            positions which he is unable to perform such as the higher 
 
            paying press setup person.  Therefore, it is the decision of 
 
            the undersigned that claimant has a permanent partial 
 
            disability of 10 percent.
 
            
 
                 The final issue to address is whether claimant is 
 
            entitled to mileage pursuant to section 85.27 and to 
 
            prescription charges.  The decision is in the affirmative.  
 
            Defendants are liable for:
 
            
 
                 Mileage   660 miles @ $.21/mile                   
 
            $138.60
 
                 Mileage to Dr. DeBartolo  108 miles @ $21./mile     
 
            22.68
 
                 prescriptions     1988                             
 
            104.20
 
                      "            1989                              
 
            55.15
 
                                      Total                        
 
            $159.35
 
            
 
                           
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants are to pay fifty (50) weeks of permanent 
 
            partial disability benefits at the stipulated rate of two 
 
            hundred twenty-six and 65/l00 dollars ($226.65) per week 
 
            commencing on April 20, 1988.
 
            
 
                 Defendants shall pay three hundred twenty and 63/l00 
 
            dollars ($320.63) in medical expenses and mileage.
 
            
 
                 Payments that have accrued shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 Defendants shall have a credit for all benefits 
 
            previously paid and not credited.
 
            
 
                 Costs of the action shall be assessed to defendants 
 
            pursuant to Division of Industrial Services Rule 343 IAC 
 
            4.33
 
            
 
                 Defendants shall file a claim activity report upon 
 
            payment of this award.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of November, 1990.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert S. Kinsey, II
 
            Attorney at Law
 
            214 N Adams
 
            P O Box 679
 
            Mason City  IA  50401
 
            
 
            Mr. Tito Trevino
 
            Attorney at Law
 
            503 Snell Bldg
 
            P O Box 1680
 
            Fort Dodge  IA  50501
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803
 
                           Filed November 30, 1990
 
                           MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            STEVEN BENSON,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 856839
 
            FLEETGUARD, INC.,             :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-1803
 
            Claimant was awarded a 10 percent permanent partial 
 
            disability as a result of a work related injury.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DOUGLAS STURTZ,
 
         
 
              Claimant,
 
                                                   File No. 856849
 
         vs.
 
                                                A R B I T R A T I O N
 
         UNITED PARCEL SERVICE,
 
                                                   D E C I S I O N
 
              Employer,
 
         
 
         and                                          F I L E D
 
         
 
         LIBERTY MUTUAL,                             MAR 30 1990
 
         
 
              Insurance Carrier,            IOWA INDUSTRIAL COMMISSIONER
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Douglas Sturtz, against United Parcel Service, employer, and 
 
         Liberty Mutual Insurance Company, insurance carrier, defendants, 
 
         to recover benefits as a result of an alleged injury sustained on 
 
         February 25, 1987.  This matter came on for hearing before the 
 
         deputy industrial commissioner in Waterloo, Iowa, on March 6, 
 
         1990.  The record consists of the testimony of claimant, 
 
         claimant's.wife, Shirley Sturtz, and Larry Moss; claimant's 
 
         Exhibits 1 through 14; and defendants' Exhibits A, B and C.
 
         
 
                                      ISSUES
 
         
 
              The issues the parties set out in the prehearing report for, 
 
         resolution are:
 
         
 
              1.  Whether claimant's injury arose out of and in the course 
 
         of his employment;
 
         
 
              2.  Whether claimant's disability is causally connected to 
 
         his injury;
 
         
 
              3.  The nature and extent of claimant's disability; and
 
         
 
              4.  Whether claimant is entitled to benefits under Iowa Code 
 
         section 85.27.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified he is a high school graduate with no post 
 
         high school education.  Claimant said he entered the navy after 
 
         high school for four years, 1963 to 1967 and was assigned to the 
 
         radar and communications area.  Claimant related none of these 
 
         navy skills were transferable.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant stated he initially began working for defendant 
 
         employer in October 1969, which involved washing trucks and 
 
         loading and unloading packages.  Claimant testified he was 
 
         assigned in 1973 to a 386 mile round trip route between Decorah, 
 
         Iowa and Stephens Point, Wisconsin, which was to be driven every 
 
         week night during an eleven hour shift.  Claimant drove this 
 
         shift from 1973 through February 1987.
 
         
 
              Claimant said he would help sort and load his trailers at 
 
         the Stephens Point location and sometimes would help load the 
 
         trailer next to him.  Claimant indicated his trailer usually 
 
         would not be full before he left Wisconsin to return to Decorah.  
 
         Claimant said this job routine was basically the same during 
 
         these 14 years.
 
         
 
              Claimant described a constant bouncing up and down 
 
         approximately one inch in his air seat while driving the truck. 
 
         Claimant said if he were talking, his voice would quiver due to 
 
         the bouncing inside the truck cab.  He said it was like riding a 
 
         horse.  He stated he could not keep coffee from spilling if it 
 
         did not have a cap on it, nor could a person write.
 
         
 
              Claimant indicated he never had back pain problems before 
 
         February 25, 1987 and said it developed February 24, 1987. 
 
         Claimant acknowledged the accident report he filled out indicated 
 
         February 16, 1987 as the date of injury.  Claimant acknowledged 
 
         he sustained no specific injury or trauma but noticed pain while 
 
         driving on February 16, 1987.  Claimant said he thought nothing 
 
         of the pain on February 16, 1987 and thought he could walk it 
 
         off. Claimant stated that around February 25, 1987, the pain set 
 
         in to such an extent that he could hardly walk at all.  Claimant 
 
         said when he stopped driving, the pain would stop.
 
         
 
              Claimant testified he complained to the employer on February 
 
         24, 1987 as to the working conditions of his truck seat.  
 
         Claimant thought the seat was in two positions at the same time 
 
         rather than one even position.  Claimant speculated as to whether 
 
         the seat was in this double position for a considerable period of 
 
         time.
 
         
 
              Claimant said he went to a Louis A. Eggers, D.C., on March 
 
         2, 1987 for adjustment.  He denied reporting to the doctor he 
 
         slipped getting into the cab, because he did not slip.
 
         
 
              Claimant said he continued to work until the end of the 
 
         week, March 6, 1987, when the pain became so bad he could no 
 
         longer work.  Claimant then went to a James A. Bullard, M.D., who 
 
         placed claimant on an outpatient basis using traction, 
 
         ultrasound, and heating pads and taking him off work beginning 
 
         March 9, 1987. Claimant thought he told Dr. Bullard about his 
 
         truck seat condition, but emphasized he never told the doctor he 
 
         got hurt lifting on a specific date.
 
         
 
              Claimant said Dr. Bullard put him in the hospital on March 
 
         19, 1987 and claimant was later transferred by ambulance to Mayo 
 
         Clinic on April 1, 1987 when his condition did not improve. 
 
         Claimant had surgery at Mayo on April 7, 1987 and was released on 
 
         April 18, 1987.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant said he returned to work on July 27, 1987 at his 
 
         same truck driving job but he no longer did any lifting.  
 
         Claimant said he worked in the mail room at the Stephens Point 
 
         location instead of loading the trailers.  Claimant said he does 
 
         more driving on his current route (386 miles round trip versus 
 
         410 miles round trip) and works approximately one-quarter hour 
 
         more (11 1/4 hours) than he did at the time of his injury.  
 
         Claimant admitted he could now do the same job he did before his 
 
         injury except for the loading and unloading.  Claimant revealed 
 
         he bought a new comfortable seat for his truck and it now 
 
         conforms to his body.  Claimant acknowledges that he now drives a 
 
         tractor and two trailers rather than a tractor and a 40 foot 
 
         trailer, therefore, requiring him to hook and unhook two trailers 
 
         rather than one when he gets to the Stephens Point, Wisconsin 
 
         location.  Claimant acknowledges this requires lifting the tongue 
 
         of a dolly weighing 60 to 70 pounds.  Claimant said he can do 
 
         this lifting if he is very careful.  Claimant indicated Mayo gave 
 
         him restrictions of no lifting over 25 pounds, no twisting or 
 
         prolonged sitting.  When asked why he presently lifts and twists 
 
         in his job, he said there is no job at defendant employer which 
 
         honors all of his restrictions.
 
         
 
              Claimant contends he cannot play football, basketball and 
 
         roughhouse with the kids.  He did admit he can do some golfing 
 
         now.  He said he used to golf 15 times a year and in 1989 golfed 
 
         once.  Claimant said he can't jump off a dock to swim, can't cut 
 
         wood, sit in certain chairs, or shovel snow.
 
         
 
              Claimant said he has had no injury since his April 1987 
 
         surgery.  He stated he had a cyst removed from his tailbone in 
 
         1970 resulting from a slip and fall, but missed no work or had no 
 
         restrictions.  Claimant indicated he hoped to work until age 59 
 
         or 60, but would have to work an 11 1/2 hour day since defendant 
 
         employer has no 40 hour work weeks.  Claimant said defendant 
 
         employer paid none of his medical bills.  Claimant admitted he is 
 
         making $.45 per hour more now than he was making at the time of 
 
         his injury proportionately.  Claimant said his increase is 
 
         because he is pulling double bottoms now rather than a single 
 
         trailer. Claimant said he also receives a $1,000 bonus now.
 
         
 
              Claimant was reminded that he testified in his deposition 
 
         that he used to go the racquetball club after surgery.  Claimant 
 
         said he does not go anymore.  Claimant explained he is no longer 
 
         doing the bulk mail work requiring loading and unloading because 
 
         he is now handling the double bottom trailers and does not have 
 
         time.  Claimant acknowledged he has had a DOT physical every two 
 
         years and has passed it.  Claimant said he was not interested in 
 
         a management position.
 
         
 
              Shirley Sturtz, claimant's wife, testified she has known 
 
         claimant since 1974 and he never had back problems or back pain 
 
         before February 1987.  She said claimant never told her of a 
 
         lifting or slipping incident.  She emphasized claimant always 
 
         related his back condition to his seat being uneven.  She stated 
 
         claimant still complains of pain two or three nights a week.  She 
 
         related they bought a new couch and different bed because of 
 
         claimant's back condition but the bed is still not comfortable 
 
         enough.  She testified claimant no longer cuts wood, shovels snow 
 
         or cuts the lawn.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Larry Moss testified he has worked 22 years for defendant 
 
         employer, working first as a porter, then delivering packages, 
 
         and now in management as a supervisor.  He said he supervises 28 
 
         regular drivers, including the claimant, and 10 vacation drivers.
 
         
 
              Moss said he rides with the drivers once a quarter and last 
 
         rode with claimant on February 5, 1990.  Moss related he observed 
 
         claimant during the entire route.  He said claimant was able to 
 
         do his job and did not complain of pain or discomfort.  He 
 
         emphasized claimant did not appear limited in his work, including 
 
         lifting the dolly.  He said claimant is a good employee and does 
 
         a good job and defendant intends to keep claimant at his same 
 
         job.  Moss said claimant could bid into another feeder run with 
 
         different hours if he had seniority on the particular position.
 
         
 
              On March 9, 1987, x-rays of the claimant's lumbar spine 
 
         resulted in a showing of "No significant abnormality of the 
 
         lumbar spine as demonstrated." (Claimant's Exhibit 4)  The 
 
         Winneshiek County Memorial Hospital discharge summary reflects 
 
         claimant was admitted into the hospital on March 19, 1987 with 
 
         acute pain in his low back.  Claimant's exhibit 4 reflects:  "The 
 
         patient does not have a history of back problems and his initial 
 
         problem began with lifting only a small weight."  It further 
 
         reflects:  "Straight leg raising is positive at 30-45o on left 
 
         and negative on the right." Claimant was referred to Dr. Lawallen 
 
         of the Mayo Clinic for further evaluation.  A Mayo clinic report 
 
         on July 15, 1988 by Barton L. Guthrie, M.D., reflects the 
 
         following:
 
         
 
              On April 7, 1987 I performed a left L-5 partial 
 
              hemilaminectomy, removing the extruded disk fragment and a 
 
              portion of the intervertebral disk.  Postoperatively he did 
 
              extremely well with resolution of his leg pain and recovery 
 
              of his strength, but not his gastrocnemius reflex.  At one 
 
              month follow up, he had essentially no back pain or leg 
 
              pain. For a simple herniated disk and an uncomplicated 
 
              operation for its removal, we generally recommend a three 
 
              month convalescence to assure adequate healing before 
 
              returning to work.
 
         
 
                   Except in unusual circumstances, a herniated vertebral 
 
              disk is secondary to underlying degenerative disease which 
 
              normally accompanies aging.  It is certainly possible that 
 
              in Mr. Sturtz' case, the chronic stress on his low back 
 
              imparted by prolonged sitting while driving a truck and by 
 
              the limited amount of lifting he did on the job, could have 
 
              resulted in herniation of a disk which was, in a sense, 
 
              weakened by the normal degenerative process.  It is not 
 
              possible to be more certain or assertive about the causal 
 
              relationship between his truck driving and his herniated 
 
              disk.
 
         
 
                   In keeping with the Minnesota Medical Association's 
 
              Workers' Compensation permanent partial disability schedule, 
 
              I would rank Mr. Sturtz' permanent partial disability at ten 
 
              percent.  I advised Mr. Sturtz, as I do all patients treated 
 
              with surgery for a simple herniated disk, that he avoid 
 
              activities which call for repeated twisting of his low back, 
 
              long periods of sitting without the possibility of changing 
 
              position, or lifting of weight more than 20-25 pounds.  It 
 
              is my experience that patients who adhere to these 
 
              guidelines and take care of their back do extremely well 
 
              following this surgery.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (Claimant's Exhibit 5)
 
         
 
              M. J. Ebersold, M.D., of Mayo Clinic, wrote on October 31, 
 
         1989:
 
         
 
                   I was involved in the care and treatment of Mr. Sturtz 
 
              who was a patient at the Mayo Clinic facilities in 1987. 
 
              Doctor Guthrie was also one of the treating physicians but 
 
              he has left our Institution since that time and it, 
 
              therefore, would seem more appropriate for me to attempt to 
 
              answer these since I was also involved in Mr. Sturtz's 
 
              treatment.  Mr. Sturtz's x-rays and evaluation revealed that 
 
              he has had degenerative disc disease and degenerative 
 
              changes of the spine probably for many years.  This is not 
 
              at all uncommon in patients and in all of us becomes 
 
              somewhat progressive as we get older.  Certainly this type 
 
              of degenerative process is accelerated by people involved in 
 
              heavy physical activity such as sports, or for that matter 
 
              prolonged sitting while driving a truck.  It is probable 
 
              that the truck driving and the problem that Mr. Strutz [sic] 
 
              had with the truck seat caused the degnerative [sic] disc 
 
              disease and degenerative changes to become increasingly 
 
              symptomatic.  Undoubtedly this hastened development of the 
 
              disc extrusion and eventual nerve root compression for which 
 
              surgery was recommended.
 
         
 
                   I do agree with Dr. Guthrie's opinion that Mr. Sturtz 
 
              has sustained a 10 percent permanent impairment to the body 
 
              as a whole as the result of this work-related situation.
 
         
 
         (Cl. Ex. 6)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on February 25, 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 claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of February 25, 1987 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman 261 Iowa 352, 154 N.W.2d 
 
         128.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              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).
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W. 2d 591, 595 (1960)
 
         
 
              The Iowa Supreme Court cites, apparently with approval, the 
 
         C.J.S. statement that the aggravation should be material if it is 
 
         to be compensable.  Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's 
 
         Compensation 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.
 
              
 
              It is not necessary that claimant prove his disability 
 
         results from a sudden unexpected traumatic event.  It is 
 
         sufficient to show that a disability developed gradually or 
 
         progressively from work activity over a period of time.  McKeever 
 
         Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).  The 
 
         McKeever court also held that the date of injury in a gradual 
 
         injury case is the time when pain prevents the employee from 
 
         continuing to work.  In McKeever the injury date coincides with 
 
         the time claimant was finally compelled to give up his job.  This 
 
         date was then utilized in determining rate and the timeliness of 
 
         the claimant's claim under Iowa Code section 85.26 and notice 
 
         under Iowa Code section 85.23.
 
              
 
              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."
 
              
 
              Iowa Code section 85.34(1) provides that if an employee has 
 
         suffered a personal injury causing permanent partial disability, 
 
         the employer shall pay compensation for a healing period from the 
 
         day of the injury until (1) the employee returns to work; or (2) 
 
         it is medically indicated that significant improvement from the 
 
         injury is not anticipated; or (3) until the employee is medically 
 
         capable of returning to substantially similar employment.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              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.
 
         
 
              Apportionment of disability between a preexisting condition 
 
         and an injury is proper only when there was some ascertainable 
 
         disability which existed independently before the injury 
 
         occurred. Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 
 
         (Iowa 1984)
 
         
 
              The burden of showing that disability is attributable to a 
 
         preexisting condition is, of course, placed upon the defendant.  
 
         If evidence to establish a proper apportionment is absent, the 
 
         defendant is responsible for the entire disability that exists. 
 
         Varied Enterprises, Inc., 353 N.W. 2d 407; Becker v. D & E 
 
         Distributing Co., 247 N.W.2d 727, 731 (Iowa 1976); 2A Larson, 
 
         Workmen's Compensation Law,  59.22; 22 Am.Jur.2d  122; 2 
 
         5.34[l](a).
 
         
 
              Claimant is a 45-year-old high school graduate who has 
 
         worked almost all of his adult life as an employee of defendant 
 
         employer except for a four year stint in the navy.  Claimant 
 
         first became employed with defendant employer in October 1969.  
 
         Claimant had been driving a 386 mile round trip route for 
 
         approximately 14 years until his injury in 1987.  Claimant 
 
         described the bouncing his body took over all those years.  It 
 
         appeared that the extent of the bouncing was somewhat 
 
         exaggerated, but defendants had claimant's supervisor, Larry 
 
         Moss, in the courtroom during claimant's testimony.  When Mr. 
 
         Moss was testifying, there was no contrary testimony to 
 
         claimant's testimony on this fact.  Moss said he worked his way 
 
         through as a truck driver into a supervisory position and as 
 
         supervisor, he rides with the drivers once each quarter.
 
         
 
              Claimant's petition alleges a February 25, 1987 injury.  The 
 
         record indicates that claimant may have thought the injury date 
 
         was January 16, 1987 at one time.  It is obvious there was no one 
 
         specific sudden trauma.  There are basically two types of 
 
         injuries, a specific sudden traumatic type injury or a cumulative 
 
         trauma.  The latter still causes attorneys trouble and confusion 
 
         in trying to arrive at a specific injury date.  The McKeever case 
 
         has been adopted by Iowa, which establishes a cumulative type 
 
         injury when the pain prevents the employee from continuing to 
 
         work.  The undersigned believes claimant incurred a cumulative 
 
         injury on March 9, 1987, when claimant's pain was so severe he 
 
         could no longer work.  Claimant was eventually hospitalized on 
 
         March 19, 1987.  Workers' compensation laws are to be interpreted 
 
         in favor of the worker.  The Iowa Rules of Civil Procedure are to 
 
         be liberally construed.  It has been held by this agency in the 
 
         past that an injury reasonably close to.the ultimate determined 
 
         injury date is sufficient.  The undersigned finds the greater 
 
         weight of evidence shows claimant received a cumulative injury to 
 
         his low back on March 9, 1987 which arose out of claimant's 
 
         employment, and that this date is reasonably close to the date 
 
         alleged in claimant's petition to comply with the Iowa Rules of 
 
         Civil Procedure as to pleading.  There is only one injury 
 
         involved.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Defendants contend there is no causal connection between 
 
         claimant's low back condition and his alleged injury.  There are 
 
         notes in certain records that defendants suggest indicate 
 
         claimant may have injured himself slipping while stepping into a 
 
         truck cab or while lifting.  Defendants also contend claimant had 
 
         a preexisting degenerative disc disease which has resulted in 
 
         claimant's current problems.
 
         
 
              Taking all the testimony and documenting evidence into 
 
         consideration, the undersigned believes claimant had a 
 
         preexisting degenerative back condition which was materially 
 
         worsened, aggravated and lighted over a period of time by 
 
         claimant's truck driving while in the employment of defendant 
 
         employer.  There were certain work-related incidents that were 
 
         part of the cumulative traumas that ultimately resulted in 
 
         claimant taking off work and ultimately having surgery at Mayo 
 
         Clinic.  These micro cumulative traumas over a period of time 
 
         include but are not limited to claimant's constant bouncing in 
 
         the truck cab while driving, any maladjustment of the seat of his 
 
         truck, repetitive climbing in and out of his cab, and lifting, 
 
         loading and unloading.  All of these events eventually and 
 
         cumulatively resulted in claimant's injury and eventual 
 
         impairment and disability.
 
              
 
              The doctors at Mayo clinic opined a 10 percent impairment to 
 
         claimant's body as a whole (defendants' Exhibits 5 and 6). 
 
         Defendants attempted to discredit these doctors.  Defendants are 
 
         not in a superior position on this issue as they denied all 
 
         liability and had no doctor of their own choice examine the 
 
         claimant.  Mayo clinic doctors are recognized as the top of their 
 
         field.  The undersigned finds claimant has a 10 percent 
 
         impairment to the body as a whole which is causally connected to 
 
         his cumulative injury on March 9, 1987.
 
         
 
              Claimant is working for defendant employer and 
 
         proportionally making more money now than he was at the time of 
 
         his injury. Claimant testified he is doing things now that are 
 
         contrary to the restrictions given him.  Claimant contends he 
 
         could not work for defendant employer at any job if the 
 
         restrictions were honored.
 
         
 
              Claimant is doing certain other activities, although on a 
 
         limited basis, that would seem to be contrary to his work 
 
         restrictions of limited twisting, bending and lifting.  Claimant 
 
         related that he golfs and did play racquetball since his injury. 
 
         The undersigned believes these are or can be more detrimental 
 
         than his work.  The undersigned questions whether the 
 
         restrictions are, in fact, now applicable, at least to the extent 
 
         they were originally prescribed.  Claimant appears to be paying, 
 
         at least in part, little attention to them.  Claimant has not 
 
         been to the Mayo Clinic doctors for some time and obviously he 
 
         has an interest at this time not to.  It is much easier to 
 
         contend he has restrictions but need not follow them than to go 
 
         to a doctor to see if they can be removed now in light of 
 
         claimant's activities. Defendants have not paid any of claimant's 
 
         medical bills and claimant, likewise, can reasonably proceed on 
 
         the basis that why should he go to the Mayo Clinic again and 
 
         incur an expense whereby it couldn't benefit him at this time in 
 
         this litigation.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Loss of earning capacity and not loss of earnings or income 
 
         equates to a person's industrial disability.  Several criteria 
 
         are to be considered, including claimant's income, in determining 
 
         a person's industrial disability.  Claimant incurred a left L-5 
 
         partial hemilaminectomy removing the extruded disc fragment at a 
 
         portion of the intervertebral disc on April 7, 1987, which 
 
         resulted from claimant's work injury on March 9, 1990.  This 
 
         obviously is a condition that results in a loss of earning 
 
         capacity.  At this time it has not affected claimant's income 
 
         and, consequently, defendant employer's retention of claimant at 
 
         his current job and earnings has a substantial affect on limiting 
 
         the extent of claimant's industrial disability.  The undersigned 
 
         cannot speculate as to what may happen in the future.  We must 
 
         deal with claimant's current situation.  Claimant has an injured 
 
         back.  This back injury will carry a stigma for the rest of 
 
         claimant's working life.  Having filed a workers' compensation 
 
         claim adds to the stigma.  Claimant is at an age where his job 
 
         opportunities lessen and where it is even more important that he 
 
         retains his current job.  Claimant is motivated.  Claimant's own 
 
         transferable skills are as a truck driver.  Claimant was not 
 
         having problems prior to his cumulative injury surfacing.  
 
         Claimant has an impairment of 10 percent to his body as a whole.  
 
         Considering all the criteria used in determining one's industrial 
 
         disability, the undersigned finds claimant has a 15 percent 
 
         industrial disability.
 
         
 
              Claimant was off work March 9, 1987 up to July 27, 1987 (20 
 
         weeks).  The parties stipulated that if defendants are liable for 
 
         the injury, claimant would be entitled to 20 weeks of healing 
 
         period at the rate of $443.78 per week.  The undersigned so 
 
         finds.
 
         
 
              The remaining issue for resolution is whether claimant is 
 
         entitled to Iowa Code section 85.27 benefits.  It has long been 
 
         held that if defendants deny liability, then claimant can seek 
 
         medical services on their own and defendants, therefore, waive 
 
         their right to choose.  Defendants have consistently denied 
 
         liability and have paid no benefits of any kind.  Defendants are 
 
         responsible for all of claimant's medical expenses, including 
 
         mileage, as provided by law.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant incurred a cumulative low back injury on March 
 
         9, 1987 while working for defendant employer driving a truck.
 
              
 
              2.  Claimant incurred a low back injury as a result of a 
 
         work-related cumulative injury on March 9, 1987.
 
         
 
              3.  Claimant has a 10 percent impairment to his body as a 
 
         whole as a result of a work-related cumulative injury.on March 9, 
 
         1987.
 
         
 
              4.  Claimant incurred a left L-5 partial hemilaminectomy 
 
         removing the extruded disc fragment and a portion of the 
 
         intervertebral disc on April 9, 1987 as a result of claimant's 
 
         cumulative work-related injury on March 9, 1987.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              5.  Claimant had some recommended restriction suggested to 
 
         him after his surgery on April 9, 1987, which restrictions in 
 
         many respects have not been followed by claimant in his work and 
 
         outside activities, which activities have not resulted in any 
 
         further aggravation or injury to claimant.
 
         
 
              6.  Claimant incurred a healing period beginning March 9, 
 
         1987 up to and including July 26, 1987 (20 weeks) at the weekly 
 
         rate of $443.78.
 
         
 
              7.  Claimant has a preexisting degenerative disc disease 
 
         which was materially aggravated, worsened and lighted up as a 
 
         result of his March 9, 1987 cumulative low back injury.
 
         
 
              8.  Claimant has a loss of earning capacity as a result of 
 
         his March 9, 1987 low back injury.
 
         
 
              9.  Claimant denied liability and no benefits have been 
 
         paid.
 
         
 
              10.  Defendants waived the right to choose claimant's 
 
         medical doctor and care by refusing to provide medical services 
 
         to which claimant was entitled as a result of his March 9, 1987 
 
         work-related cumulative injury.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant's low back cumulative injury of March 9, 1987 arose 
 
         out of and in the course of his employment.
 
         
 
              Claimant's low back injury is causally connected to his 
 
         cumulative work-related injury on March 91 1987.
 
         
 
              Claimant's 10 percent body as a whole impairment is causally 
 
         connected to his work-related cumulative injury on March 9, 1987.
 
         
 
              Claimant incurred a left L-5 partial hemilaminectomy 
 
         removing the extruded disc fragment and a portion of the 
 
         intervertebral disc on April 9, 1987 as a result of claimant's 
 
         cumulative work-related injury on March 9, 1987.
 
         
 
              Claimant had some recommended restriction suggested to him 
 
         after his surgery on April 9, 1987, which restrictions in many 
 
         respects have not been followed by claimant in his work and 
 
         outside activities, which activities have not resulted in any 
 
         further aggravation or injury to claimant.
 
         
 
              Claimant incurred a healing period beginning March 9, 1987 
 
         up to and including July 26, 1987 (20 weeks) at the weekly rate 
 
         of $443.78.
 
         
 
              Claimant has a 15 percent industrial disability.
 
         
 
              Defendants are responsible for all claimant's medical 
 
         expenses incurred as a result of claimant's March 9, 1987 
 
         cumulative injury.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants shall pay unto claimant healing period 
 
         benefits at the rate of four hundred forty-three and 78/100 
 
         dollars ($443.78) for a period beginning March 9, 1987 up to and 
 
         including July 26, 1987, representing twenty (20) weeks.
 
         
 
              That defendants shall pay unto claimant seventy-five (75) 
 
         weeks of permanent partial disability benefits at the rate of 
 
         four hundred forty-three and 78/100 dollars ($443.78) per week 
 
         beginning July 27, 1987.
 
         
 
              That defendants shall pay the accrued weekly benefits in a 
 
         lump sum and shall receive credit against the award for weekly 
 
         benefits previously paid.  Defendants have paid no benefits as of 
 
         the date of hearing.
 
         
 
              That defendants are responsible for all claimant's medical 
 
         expenses incurred as a result of claimant's March 9, 1987 
 
         work-related cumulative injury, including mileage connected 
 
         therewith. Said bills appear to be:
 
         
 
         
 
               Dr. Eggers                          $69.00
 
               Decorah Medical Assoc.              524.38 
 
               (approx.)
 
               Oneota Radiology                     36.00
 
               Winneshiek County Hospital        3,767.09
 
               Mayo Clinic                       4,625.50
 
               St. Mary's Hospital Rochester     4,945.84.
 
         
 
              That defendants shall pay interest on benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              That defendants shall pay the costs of this action, pursuant 
 
         to Division of Industrial Services Rule 343.4.33.
 
         
 
              That defendants shall file an activity report upon payment 
 
         of this award as required by this agency, pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 30th day of March, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            BERNARD J. O'MALLEY
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 

 
                                            
 
 
 
 
 
 
 
 
 
 
 
         
 
         Copies To:
 
         
 
         Mr Robert C. Andres
 
         Attorney at Law
 
         First Natl Bldg 6th Fl
 
         E. 4th & Sycamore
 
         P. 0. Box 2634
 
         Waterloo, IA  50704-2634
 
         
 
         Mr Kevin R. Rogers
 
         Attorney at Law
 
         P. 0. Box 1200
 
         Waterloo, IA  50704
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1100; 5-1108; 1803
 
                                            5-2500; 2209
 
                                            Filed March 30, 1990
 
                                            Bernard J. O'Malley
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DOUGLAS STURTZ,
 
         
 
              Claimant,
 
                                                    File No. 856849
 
         vs.
 
         
 
         UNITED PARCEL SERVICE,                  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.
 
         
 
         
 
         5-1100
 
         
 
              Found claimant's injury arose out of and in the course of 
 
         his employment.
 
         
 
         5-1108; 1803
 
         
 
              Found claimant's 10% impairment to his body as a whole 
 
         causally connected to his work-related injury, which injury 
 
         resulted in a 15% industrial disability.  Claimant is a motivated 
 
         45 year old working basically same job with a little more pay and 
 
         much less lifting.
 
         
 
         2209
 
         
 
              Claimant plead a February 25, 1987 injury, but deputy found 
 
         a March 9, 1987 cumulative low back injury under McKeever.
 
         
 
         5-2500
 
         
 
              Claimant awarded all 85.27 medical benefits.  Defendants 
 
         denied all liability, thereby, waiving right to choose medical.