BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         SCOTT CLINE,                                 FILE NO. 856884
 
          
 
              Claimant,                            A R B I T R A T I O N
 
         
 
         vs.                                          D E C I S I O N
 
         
 
         C. DUFFY GUSTAFSON,                             F I L E D
 
         d/b/a DUFFY'S AUTO CLEAN,
 
                                                        JUN 30 1988
 
              Employer,
 
              Defendant.                      IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
                             STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Scott Cline, 
 
         claimant, against C. Duffy Gustafson d/b/a Duffy's Auto Clean, 
 
         employer (hereinafter referred to as Duffy's), who is uninsured, 
 
         for workers' compensation benefits as a result of an alleged 
 
         injury on July 27, 1987.  On June 15, 1988 a hearing was held on 
 
         claimant's petition and the matter was considered fully submitted 
 
         at the close of the hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing from claimant and the 
 
         following witnesses:  Pete Niccum and defendant, C. Duffy 
 
         Gustafson.  The exhibits received into the evidence at the 
 
         hearing are listed in the prehearing report.
 
         
 
              Prior to hearing, the undersigned had sanctioned defendant 
 
         for failure to answer the petition by prohibiting his 
 
         participation in these proceedings.  However, after further review 
 
         of the file, it appears that a suitable answer was timely filed by 
 
         this "pro se" defendant which was apparently not physically 
 
         located in the file at the time sanctions were imposed.  
 
         Therefore, sanction order was lifted and defendant was allowed to 
 
         participate in the proceedings.
 
         
 
              At hearing, in lieu of a transcription of the proceedings by 
 
         a court reporter, the parties stipulated that the only record for 
 
         purposes of appeal will be this decision.
 
         
 
                                     ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
                I.  Whether an employer-employee relationship existed 
 
         between claimant and the alleged defendant employer at the time 
 
                                                   
 
                                                            
 
         of the alleged injury;
 
         
 
               II.  Whether claimant received an injury arising out of and 
 
         in the course of employment;
 
         
 
              III.  Whether there is a causal relationship between the 
 
         work injury and the claimed disability;
 
         
 
               IV.  The extent of weekly disability benefits to which 
 
         claimant is entitled; and,
 
         
 
                V.  The extent of claimant's entitlement to medical 
 
         benefits under Iowa Code section 85.27.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  For the sake of brevity, only the evidence most pertinent 
 
         to this decision is discussed.  Whether or not specifically 
 
         referred to in this summary, all of the evidence received at the 
 
         hearing was considered in arriving at this decision.  As will be 
 
         the case in any attempted summarization, conclusions about what 
 
         the evidence offered may show are inevitable.  Such conclusions, 
 
         if any, in the following summary should be considered as 
 
         preliminary findings of fact.
 
         
 
              Claimant and his witness, Niccum, testified that on July 27, 
 
         1988, while claimant was in the employee of defendant as a 
 
         working manager, claimant injured his left long or middle finger. 
 
         According to claimant, while shampooing the interior of an 
 
         automobile, a needle became imbedded in his finger which he could 
 
         not remove.  After leaving work a few hours later, claimant 
 
         called defendant's wife and was referred to the Iowa Methodist 
 
         Medical Center on Merle Hay Road in Des Moines, Iowa for 
 
         treatment.  The doctors at this center could not remove the 
 
         needle and claimant was referred to an orthopedic surgeon, Arnis 
 
         Grunberg, M.D.  After his examination of claimant, Dr. Grunberg 
 
         performed surgery on the finger to remove the needle.
 
         
 
              Claimant testified that he was able to return to work 
 
         approximately three days after the surgery.  However, defendant's 
 
         business closed on the day of the injury and has not reopened. 
 
         Claimant eventually returned to work on August 1, 1988 when he 
 
         began his own business.  Claimant stated that he could have 
 
         returned to work immediately on limited duty had defendant's 
 
         business continued operation.
 
         
 
              Defendant testified that he was unaware of any injury to 
 
         claimant on the alleged date of injury but admitted that his wife 
 
         had received a telephone call from claimant at that time. 
 
         Defendant admitted that he was "in and out" that last day of his 
 
         business operation.  Defendant stated that claimant was a good 
 
         employee.
 
         
 
              Claimant testified at hearing that he has had no problems 
 
                                                   
 
                                                            
 
         with his finger since his recovery from surgery and that he does 
 
         not seek disability benefits from defendants.  Claimant indicated 
 
         that he only seeks reimbursement for his medical expenses which 
 
         total $1,432.66 as set forth in the prehearing report.
 
         
 
              During the latter part of the hearing it was discovered that 
 
         defendant and his wife had tried bankruptcy on February 19, 1988 
 
         during the pendency of these proceedings which began in January, 
 
         1988.  After further inquiry of the U.S. Bankruptcy Clerk in Des 
 
         Moines, Iowa, the undersigned has learned that claimant's claim 
 
         for disability benefits and medical bills against defendant in 
 
         this proceeding was discharged by order of the Bankruptcy Court 
 
         on May 12, 1988.
 
         
 
                         APPLICABLE LAW AND ANALYSIS
 
         
 
              Under federal law, discharge of this claim in bankruptcy 
 
         prohibits this agency from making any order of payment against 
 
         defendant.  However, there is no stay of proceedings after a 
 
         discharge is granted and findings of fact can be made for 
 
         whatever use claimant may make of them.
 
         
 
              By his credible testimony, claimant has shown a work injury 
 
         and a causal connection of the treatment provided to him to 
 
         remove the needle from his finger.
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              2.  Claimant was in the employ of C. Duffy Gustafson d/b/a 
 
         Duffy's Auto Clean on July 27, 1987.
 
         
 
              3.  On July 27, 1987 claimant suffered an injury to the left 
 
         long finger which arose out of and in the course of employment 
 
         with Duffy's Auto Clean when a needle became imbedded in the 
 
         finger while cleaning a car.
 
         
 
              4.  The following medical expenses were incurred by claimant 
 
         for treatment of his work injury of July 27, 1987:
 
         
 
            Iowa Methodist Medical Center         7-27-87            $95.00
 
            Methodist Plaza Pharmacy         7-28-87 & 7-30-87        61.19
 
            Iowa Methodist Medical Center         7-30-87            521.47
 
            Associated Anesthesiologists, P.C.    7-30-87            240.00
 
            Des Moines Orthopaedic Surgeons, P.C. 7/87 & 8/87        515.00
 
                  Total                                           $1,432.66
 
         
 
              Claimant's gross weekly earnings on the day of injury was 
 
         $275.00.
 
         
 
                               CONCLUSIONS OF LAW
 
         
 
                                                   
 
                                                            
 
              Claimant has established by a preponderance of the evidence 
 
         entitlement to temporary total disability benefits for five days 
 
         at the rate of $170.64 per week and medical benefits.  However, 
 
         no award or orders can issue against defendant due to a discharge 
 
         of this claim in Chapter 11, bankruptcy proceedings.
 
         
 
         
 
              Signed and filed this 30th day of June, 1988.
 
         
 
         
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Scott Cline
 
         2515 27th St.
 
         Des Moines, Iowa  50310
 
         REGULAR & CERTIFIED MAIL
 
         
 
         Mr. C. Duffy Gustafson
 
         d/b/a Duffy's Auto Clean
 
         3113 Fleming Ave.
 
         Des Moines, Iowa 50310
 
 
 
 
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1600
 
                                                 Filed June 30, 1988
 
                                                 LARRY P. WALSHIRE
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         SCOTT CLINE,
 
                                                      FILE NO. 856884
 
              Claimant,
 
                                                   A R B I T R A T I 0 N
 
         vs.
 
                                                      D E C I S I 0 N
 
         C. DUFFY GUSTAFSON,
 
         d/b/a DUFFY'S AUTO CLEAN,
 
         
 
              Employer,
 
              Defendant.
 
         
 
         
 
              Although entitlement to benefits was found, no award can be 
 
         made due to discharge of the claim in bankruptcy proceedings 
 
         during the pendency of proceedings before this agency.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RICHARD STOWELL,              :
 
                                          :
 
                 Claimant,                :
 
                                          :      File No. 856885
 
            vs.                           :
 
                                          :        A P P E A L
 
            CITY OF AMES/,                :
 
            MARY GREELEY MEDICAL CENTER,  :      D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            is affirmed and is adopted as the final agency action in 
 
            this case.
 
            Signed and filed this ____ day of April, 1990.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                             DAVID E. LINQUIST
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Dennis L. Hanssen
 
            Attorney at Law
 
            Suite 111, Terrace Center
 
            2700 Grand Avenue
 
            Des Moines, Iowa 50312
 
            
 
            Mr. Harry W. Dahl
 
            Attorney at Law
 
            974 73rd Street
 
            Suite 16
 
            Des Moines, Iowa  50312
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-9999
 
                                          Filed April 16, 1990
 
                                          DAVID E. LINQUIST
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RICHARD STOWELL,              :
 
                                          :
 
                 Claimant,                :      File No. 856885
 
                                          :
 
            vs.                           :        A P P E A L
 
                                          :
 
            CITY OF AMES/                 :      D E C I S I O N
 
            MARY GREELEY MEDICAL CENTER,  :
 
                                          :
 
                 Employer,                :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-9998
 
            
 
            Deputy's decision summarily affirmed on appeal.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RICHARD STOWELL,,
 
         
 
                                                      File No. 856885
 
              Claimant.,
 
         
 
                                                 A R B I T R A T I 0 N 
 
         VS.
 
         
 
         CITY OF AMES/                                D E C I S I 0 N 
 
         MARY GREELEY MEDICAL CENTER,
 
         
 
              Employer, 
 
              Defendant.
 
         
 
         
 
                                   INTRODUCTION
 
                                        
 
              This is a proceeding in arbitration brought by Richard 
 
         Stowell against his self-insured employer, the city of Ames and 
 
         Mary Greeley Medical Center.  The case was heard at Des Moines, 
 
         Iowa, on May 9, 1989.  The record in the proceeding consists of 
 
         testimony from Richard Stowell, claimant's exhibits 1 through 4, 
 
         defendants' exhibits 1 through 4 and joint exhibits 1 through 3.
 
         
 
                                      ISSUES
 
                                        
 
              Claimant alleges that he sustained injury to his back which 
 
         arose out of and in the course of his employment.  He seeks 
 
         compensation for temporary total disability and payment of 
 
         medical expenses.  The employer disputes that claimant sustained 
 
         any injury which arose out of and, in the course of his 
 
         employment and denies claimant's claim for weekly compensation 
 
         and section 85.27 benefits.
 
         
 
                               SUMMARY OF EVIDENCE
 
                                        
 
              The following is a summary of evidence presented in this 
 
         case.  Only the evidence most pertinent to this decision is 
 
         discussed, but all of the evidence received at the hearing.was 
 
         considered in arriving at this decision.  Conclusions about what 
 
         the evidence showed are inevitable with any summarization.  The 
 
         conclusions in the following summary should be considered to be 
 
         preliminary findings of. fact.
 
         
 
              Richard Stowell is a 29-year-old man who is employed as a 
 
         paramedic at Mary Greeley Medical Center which is located in and 
 
         operated by the city of Ames, Iowa.  Stowell
 
         
 
         
 
         
 
         STOWELL,v. CITY OF AMES/MARY GREELEY MEDICAL CENTER
 
         Page 2
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         commenced employment at Mary Greeley in 1982 after having worked 
 
         three years at a hospital in Spencer, Iowa.
 
         
 
              Claimant stated that prior to August of 1987, he had two 
 
         episodes,of low back pain which caused him to miss work.  He 
 
         estimated that he had missed two or three days of work on each of 
 
         those occasions.  Claimant stated that after each of the 
 
         occasions, he recovered to the same state of health he had 
 
         enjoyed prior to those injuries.
 
         
 
              Stowell described the duties of a paramedic at Mary Greeley 
 
         as responding to ambulance calls, assisting in the emergency 
 
         room, assisting nurses on the floors of the hospital, performing 
 
         electrocardiograms and providing security and restraint as needed 
 
         in the psychiatric units of the hospital.
 
         
 
              On August 21, 1987, Stowell was at home assisting in toilet 
 
         training his young daughter.  He stated that he reached to his 
 
         left to obtain. toilet paper and experienced the onset of 
 
         immobilizing pain.  Claimant stated that he rested over the 
 
         following weekend and returned to work as scheduled on August 24, 
 
         1987.  Claimant stated that he had begun to feel better over the 
 
         weekend, but still.had some difficulty sitting, although other 
 
         activities did not bother him.  Claimant stated that he worked on 
 
         the 25th of August and in doing so, responded to two ambulance 
 
         calls.  He stated that he also worked on the 26th of August, but 
 
         his pain while sitting persisted.  Claimant related that with the 
 
         prior incidents when he. experienced back pain, the pain had 
 
         resolved within a few days.  Claimant stated that since it had 
 
         not resolved on this occasion, he reported the problem to the 
 
         hospital office where he was told to fill out a claim form and 
 
         see a physician.  Claimant was seen by Peter Q. Wolfe, M.D. Dr. 
 
         Wolfe prescribed medications and took claimant off work.  The 
 
         parties stipulated that claimant was off work from August 28, 
 
         1987 through September 1, 1987, a period of five days.
 
         
 
              Claimant returned to work on September 2 without 
 
         restrictions, although he stated at hearing that he had a 
 
         lingering dull pain in his low back.  He continued to work hoping 
 
         that the symptoms would go away,'but they did not.  Claimant 
 
         contacted Alan G. Lang, M.D., an Ames orthopaedic surgeon.  Dr. 
 
         Lang advised claimant to take.time off from work and prescribed 
 
         medication and physical therapy which was provided by Kevin 
 
         Rippey, L.P.T. Claimant returned to work on October 5, 1987.  
 
         Claimant stated that Dr. Lang had advised him to avoid long 
 
         transfer runs.  Claimant stated that he got along fairly well and 
 
         had worked approximately two weeks, but that his pain then 
 
         increased and he
 
         
 
         
 
         
 
         STOWELL v. CITY OF AMES/MARY GREELEY MEDICAL CENTER 
 
         Page 3
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         experienced difficulty walking.  Claimant stated that during the 
 
         two weeks he had responded to an unusually large number of 
 
         ambulance calls.  He stated that two were very strenuous .and 
 
         that two others required lifting and moving the patient.
 
         
 
              On October 14, 1987, Dr. Lang again took claimant off work.  
 
         A CT scan was performed which was interpreted as being normal.  
 
         Claimant stated that he remained off work under Dr. Lang's care 
 
         until February 1, 1988, although on occasion he did perform some 
 
         services for the employer.
 
         
 
              On February 1, 1988, claimant was released to return to work 
 
         without restrictions.  Claimant stated that he subsequently 
 
         experienced an episode of low back pain in May, 1988 when lifting 
 
         a patient which required him to be off work for a few days.  He 
 
         stated that he has had no further problems with his back since 
 
         that time.
 
         
 
              Dr. Lang expressed the opinion that claimant's back pain was 
 
         discogenic in nature.  He opined that claimant's injury could be 
 
         construed as a partial tear of the annulus which occurred as a 
 
         result of repetitive lifting and carrying, which was finally made 
 
         symptomatic by the minor episode which had occurred at claimant's 
 
         home on August 21, 1987 (joint exhibit 1, page 1).  Dr. Lang also 
 
         stated that claimant's diagnosis was one of recurrent lumbosacral 
 
         strain with a probable element of degenerative lumbar disc 
 
         disease (joint exhibit 1, page 2).  Dr. Lang expressed the 
 
         opinion that claimant's problem was work aggravated because of 
 
         the lifting which claimant had been performing prior to the 
 
         incident (joint exhibit 1, pages 1, 2, and 5).
 
         
 
              Dr. Wolfe was unable to express an opinion with regard to 
 
         whether or not claimant's injury was work related and suggested 
 
         that questions on the matter be directed to Dr. Lang (joint 
 
         exhibit 2).
 
         
 
              Physical therapist Kevin Rippey also felt that claimant' s 
 
         back injury was a result of the lifting which he performed as a 
 
         paramedic (joint exhibit 3).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
                                        
 
              Claimant has the burden of proving by a.preponderance of the 
 
         evidence that he received an injury which arose out of and in the 
 
         course of his employment.  McDowell v. Town of Clarksville, 241 
 
         N.W.2d 904 (Iowa 1976);     Musselman v. Central Telephone Co., 
 
         261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course 
 
         injury of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 
 
         246
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         STOWELL v. CITY OF AMES/MARY GREELEY MEDICAL CENTER
 
         Page 4
 
         
 
         
 
         Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of 
 
         the Iowa Report.  See also Sister Mary Benedict v. St. Mary's 
 
         Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen .v. State 
 
         of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 
 
         246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The "arising out of" requirement is met by showing a causal 
 
         relationship between the employment and the injury.  Sheerin v. 
 
         Holin Co., 380 N.W.2d 415 (Iowa 1986).
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) discussed 
 
         the definition of personal injury in workers' compensation cases 
 
         as follows:
 
         
 
              While a personal injury does not include an occupational 
 
              disease under the Workmen's Compensation Act, yet an injury 
 
              to the health may be a personal injury. [Citations omitted.] 
 
              Likewise a personal injury includes a disease resulting from 
 
              an injury .... The result of changes in the human body 
 
              incident to the general processes of nature do not amount to 
 
              a personal injury.  This must follow, even though such 
 
              natural change may come about because the life has been 
 
              devoted to labor and hard work.  Such result of those 
 
              natural changes does not constitute a personal injury even 
 
              though the same brings about impairment of health or the 
 
              total or partial incapacity of the-functions of the human 
 
              body.
 
              
 
                 ...
 
              
 
              A personal injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the body, the 
 
              impairment of health, or a disease, not excluded by the act, 
 
              which comes about, not through the natural building up and 
 
              tearing down of the human body, but because of a traumatic 
 
              or other hurt or damage to the health or body of an 
 
              employee. [Citations omitted.] The injury to the human body 
 
              here contemplated must be something, whether an accident or 
 
              not, that acts extraneously to the natural processes of 
 
              nature, and thereby impairs the health, overcomes injures, 
 
              interrupts, or destroys some function of the body, or 
 
              otherwise damages or injures a part or all of the body.
 
         
 
         
 
         STOWELL v. CITY OF.AMES/MARY GREELEY MEDICAL CENTER
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 5
 
         
 
         
 
              A personal injury can be one which results.from cumulative 
 
         trauma.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
         1985).  The difference between cumulative .trauma and the natural 
 
         tearing down of the body which results from a life devoted to 
 
         labor and hard work is not always clear.
 
         
 
              It would be expected that Dr. Lang and therapist Rippey are 
 
         correct in the sense that the lifting which claimant performed as 
 
         a paramedic contributed to the incident that occurred on August 
 
         21, 1987.  It would also be expected, however, that all the other 
 
         lifting, every slip or fall, and essentially every other minor 
 
         trauma which claimant had experienced throughout his life also 
 
         was a factor leading up to the August 21 incident.  It is 
 
         therefore determined that the incident that occurred on August 
 
         21, 1987 and the resulting disability is not an injury which 
 
         arose out of and in the course of claimant's employment.  
 
         According to the stipulation contained in the prehearing report, 
 
         claimant was off work from August 28, 1987 through September 1, 
 
         1987 and was then again off work from September 3, 1987 through 
 
         October 4, 1987.  At that time, he returned to work for two 
 
         weeks.  Claimant testified of performing lifting during that two 
 
         week resumption of employment.and also related a worsening of his 
 
         symptoms which led him back to Dr. Lang.
 
         
 
              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).
 
         
 
              From the evidence,presented, it appears as though claimant's 
 
         recovery from the August incident which occurred at home was 
 
         compromised by his work activities.  It would . seem reasonable 
 
         that if claimant's back were 'so fragile that it could be injured 
 
         by reaching for toilet paper, then the heavy, often awkward 
 
         lifting performed by a paramedic when handling patients could 
 
         certainly be expected to aggravate the injury that had resulted 
 
         from reaching for toilet paper.  It is therefore determined that 
 
         the work which claimant performed between August 5, 1987 and 
 
         October 14, 1987, in particular the lifting and handling of 
 
         patients, aggravated .the preexisting condition which was 
 
         produced by the toilet paper incident at home.  It is therefore 
 
         determined that when claimant was off work from October 15, 1987 
 
         through
 
         
 
         
 
         
 
         STOWELL v. CITY OF AMES/MARY GREELEY MEDICAL CENTER 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 6
 
         
 
         
 
         February 1, 1988 constitutes a period of disability which 
 
         resulted from an injury which arose out of and in the course of 
 
         employment.  Claimant is therefore entitled to recover 15 and 5/7 
 
         weeks of compensation for temporary total disability.  He is also 
 
         entitled to recover all expenses of medical treatment incurred 
 
         commencing October 14, 1987 when he consulted Dr. Lang for the 
 
         aggravation.
 
         
 
              The medical expenses for which defendant is liable are the 
 
         following:
 
         
 
               CT scan                   $        340.00
 
               Lumbar support                      12.00
 
               McFarland Clinic office call 
 
                    11/24/87 and 12/22/87                       35.00
 
               McFarland Clinic CT scan services   104.00
 
               Indomethacin prescription           23.11
 
               Advil                               16.78
 
               Mileage (4 visits at 3 miles per
 
                     round trip   12 miles)           2.52
 
               Total recoverable                 $ 533.41
 
         
 
              Defendant employer is entitled to credit for whatever. 
 
         portion of the foregoing expenses was paid by the group medical 
 
         carrier.  The employer is also entitled to credit for group 
 
         disability income payments paid for the periods for which 
 
         compensation has been awarded herein, but not for any disability 
 
         payments which were paid for any time prior to October 15, 1987.  
 
         From the record made in this case it cannot be determined whether 
 
         or not all of the stipulated Bankers Life payments should be used 
 
         when determining the credit.
 
         
 
                                 FINDINGS OF FACT
 
                                        
 
              1. Richard Stowell sustained an injury on August 21, 1987 
 
         which did not arise out of and in the course of his employment 
 
         with the city of Ames, Iowa, and Mary Greeley Medical Center.
 
         
 
              2. Stowell had made significant recuperation from that 
 
         injury when he returned to work on October 5, 1987.
 
         
 
              3. The heavy lifting which Stowell performed.during the 
 
         period of October 5, 1987 through October 14, 1987 substantially 
 
         aggravated and worsened his back condition by reversing the 
 
         recovery which had previously occurred and necessitating further 
 
         medical treatment.
 
         
 
              4. The lifting which claimant had performed during the days 
 
         and weeks prior to August 21, 1987 was not a
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         STOWELL v. CITY OF AMES/MARY GREELEY MEDICAL CENTER 
 
         Page 7
 
         
 
         
 
         substantial factor in producing the disability that existed 
 
         during the time span running from August 28, 1987 through October 
 
         4, 1987, but the lifting which claimant performed .during the 
 
         time of October 5, 1987 through October 14, 1987 was a 
 
         substantial factor in producing the disability which afflicted 
 
         claimant from October 15, 1987 through February 1, 1988.
 
         
 
              5. Claimant was medically incapable of performing work in 
 
         employment substantially similar to that which he performed at 
 
         the time of injury from October 15, 1987 until February 2, 1988 
 
         when he returned to work.
 
         
 
              6. The injuries sustained during October of 1987 were a 
 
         result of the cumulative trauma from lifting patients, 
 
         superimposed upon a previously weakened condition, and the 
 
         appropriate date of injury is therefore determined to be October 
 
         15, 1987, the date when disability commenced.
 
         
 
              7. The medical expenses which claimant incurred in treating 
 
         the injury of October 15, 1987 total $533.41 as set forth in the 
 
         analysis portion of this decision.
 
         
 
                                CONCLUSIONS OF LAW
 
                                        
 
              1. This agency has jurisdiction of the subject matter of 
 
         this proceeding,and its parties.
 
         
 
              2. Claimant sustained an aggravation type of injury from 
 
         cumulative trauma during the period of October 5, 1987 through 
 
         October 14, 1987, with the date of injury being October 15, 1987.
 
         
 
              3. As a result of the injury, claimant is entitled to 
 
         recover 15 and 5/7 weeks of compensation for temporary total 
 
         disability payable commencing October 15, 1987 at the stipulated 
 
         rate of $312.11 per week.
 
         
 
                                      ORDER
 
                                        
 
              IT IS THEREFORE ORDERED that defendant shall pay claimant 
 
         fifteen and five-sevenths (15 5/7) weeks of compensation for 
 
         temporary total disability  payable commencing October 15, 1987 
 
         at the stipulated rate of three hundred twelve and 11/100 dollars 
 
         ($312.11) per week.
 
          
 
              IT IS FURTHER ORDERED that defendants pay the following
 
          expenses:
 
          
 
                CT scan                                    $340.00
 
                Lumbar  support                            12.00
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         STOWELL v. CITY OF AMES/MARY GREELEY MEDICAL CENTER
 
         Page 8
 
         
 
         
 
               McFarland Clinic office call 11/24/87
 
                    and 12/22/87                       35.00
 
               McFarland Clinic CT scan services      104.00
 
               Indomethacin prescription               23.11
 
               Advil                                   16.78
 
               Mileage (4 visits at 3 miles per
 
                    round trip = 12 miles)                   2.52
 
               Total                                 $533.41
 
              
 
              IT IS FURTHER ORDERED that the employer shall receive credit 
 
         for disability income payments.paid by the Bankers Life Company 
 
         for the period of time for which temporary total disability 
 
         compensation is awarded and also for any portion of the foregoing 
 
         medical expenses which were paid by the employer's group 
 
         insurance carrier.
 
         
 
              IT IS FURTHER ORDERED that the costs of this proceeding are 
 
         assessed against the employer pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              IT IS FURTHER ORDERED that the employer file claim activity 
 
         reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 11th day of December, 1989.
 
         
 
         
 
         
 
         
 
                                         MICHAEL G. TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies  To:
 
         
 
         Mr. Dennis L. Hanssen
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa 50312
 
         
 
         Mr. Harry W. Dahl 
 
         Attorney at Law 
 
         974 73rd Street Suite 16
 
         Des Moines, Iowa  50312
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                            2206, 2209
 
                                            Filed December 11, 1989
 
                                            MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RICHARD STOWELL,
 
         
 
              Claimant,                         File No. 856885
 
          
 
          VS.                                A R B I T R A T I 0 N
 
          
 
          CITY OF AMES/                         D E C I S I 0 N
 
          MARY GREELEY MEDICAL CENTER,
 
          
 
              Employer,
 
              Defendant.
 
         
 
         
 
         2206, 2209
 
         
 
              Claimant suffered an injury at home, recuperated and 
 
         returned to work.  The work worsened the condition and claimant 
 
         was then again taken off work.  It was held that the employer was 
 
         not responsible for the initial injury, even though the work 
 
         activities may have contributed to it, but that the employer was 
 
         responsible for the disability resulting from the aggravation 
 
         which occurred when the claimant returned to work.  Claimant 
 
         awarded temporary total disability and section 85.27 benefits.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         HOY D. COOKE,
 
         
 
              Claimant,                           File No. 857046
 
              
 
         vs.                                   A R B I T R A T I O N
 
         
 
         KELLER INDUSTRIES,                       D E C I S I O N
 
         
 
              Employer,
 
                                                     F I L E D
 
         and
 
                                                    SEP 28 1989
 
         CIGNA,
 
                                                INDUSTRIAL SERVICES
 
              Insurance Carrier,
 
              Defendants.
 
              
 
              
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by claimant Hoy 
 
         D. Cooke against defendant employer Keller Industries and 
 
         defendant insurance carrier Cigna to recover benefits under the 
 
         Iowa Workers' Compensation Act as the result of an injury dated 
 
         June 20, 1987.  This matter came on for hearing before the 
 
         undersigned deputy industrial commissioner in Davenport, Iowa, on 
 
         September 19, 1989.  The matter was considered fully submitted at 
 
         the close of hearing.
 
         
 
              The record in the proceeding consists of claimant's exhibits 
 
         1 and 2, defendants' exhibits 1 through 23, inclusive, and the 
 
         testimony of claimant, Gene Mockmore, Daryll Hidlebaugh and David 
 
         Moulds.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report submitted by the parties 
 
         and approved by the deputy at hearing, the parties have 
 
         stipulated:  That an employment relationship existed between 
 
         claimant and employer at the time of the injury; that claimant 
 
         sustained an injury on June 20, 1987, arising out of and in the 
 
         course of that employment; that the injury caused temporary 
 
         disability; that if the injury be found to have caused permanent 
 
         disability, it is an industrial disability to the body as a 
 
         whole; that the appropriate rate of weekly compensation is 
 
         $109.29; that defendants paid claimant 29.143 weeks of 
 
         compensation at the stipulated rate.
 
         
 
              The issues to be resolved include:  Whether the alleged 
 
         injury caused permanent disability; the extent of claimant's 
 
         entitlement, if any, to compensation for temporary total 
 
         disability, healing period or permanent disability; the 
 
         commencement date for permanent disability; the extent of 
 
         claimant's entitlement to medical benefits; taxation of costs.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified that he is 23 years old and that he 
 
         suffered an injury on June 20, 1987, while standing beneath 
 
         bundles of stacked aluminum.  He dropped something and was struck 
 
         as he stood up.  Gene Mockmore later testified that he found 
 
         claimant under a bundle with his boots sticking out.  Mockmore 
 
         felt the bundle fell from 15-18 feet and weighed as much as 500 
 
         pounds.  Claimant was unconscious when found.
 
         
 
              Claimant also testified to his work history and is of the 
 
         view that he is now unable to perform many kinds of work because 
 
         of severe stiffness in his hip, severe lower back pain, and an 
 
         inability to walk or sit for extended periods.  Claimant 
 
         testified further to a history of intermittent backaches and 
 
         minor back stiffness upon exertion.  Claimant testified that he 
 
         now suffers pain just above his belt line in the lower back.
 
              
 
              Further testimony of claimant will be discussed as it 
 
         relates to various other items of evidence.
 
              
 
              CT studies taken on June 20, 1987, and particularly with 
 
         respect to the spine show that no definite fracture was seen, 
 
         although there were probable fractures of T8 and T12 vertebrae.
 
              
 
              Claimant was seen by John C. VanGilder, M.D.  Dr. VanGilder 
 
         is a professor of neurosurgery at the University of Iowa 
 
         Hospitals and Clinics.  His letter to Forrest Dean, M.D., of 
 
         Muscatine, Iowa, dated July 24, 1987 stated that lumbar spine 
 
         x-rays were normal.  Dr. VanGilder felt that claimant was not 
 
         able to return to work at that time because of his complaints of 
 
         continued pain and easy fatigability.  Dr. VanGilder was unable 
 
         to account for claimant's subjective deficit of hypalgesia in the 
 
         right leg and found no evidence of objective deficit.
 
         
 
              In a letter to Dr. Dean of September 9, 1987, Dr. VanGilder 
 
         authorized claimant to return to work at light duty as a shipping 
 
         clerk with limitations of lifting beyond 20 pounds, prolonged 
 
         standing and no climbing.  Claimant at that time was seen as 
 
         entirely normal on neurological examination, but had continuing 
 
         muscular complaints of unclear etiology.
 
              
 
              Todd Ridenour, M.D., of the University of Iowa Hospitals and 
 
         Clinics, Division of Neurosurgery, wrote Dr. Dean on October 16, 
 
         1987.  Dr. Ridenour found claimant's repeat lumbar spine films 
 
         and neurological examination to be normal.  Claimant was seen in 
 
         the neurosurgical outpatient clinic on an emergency basis on 
 
         October 14, 1987, with complaints of multiple myalgias and joint 
 
         afflictions.  Jane Morgan, M.D., of the Division of Rheumatology, 
 
         wrote claimant on November 24, 1987, to opine that his discomfort 
 
         was most likely due to a virus.  She felt all the symptoms had at 
 
         that time resolved and that claimant was able to return to full 
 
         employment with no restrictions on his activities.  It is the 
 
         expense of the numerous medical tests claimant underwent at this 
 
         time that is subject to dispute between the parties as to 
 
         compensability.  Claimant was given a probable diagnosis of viral 
 
         myositis when discharged on October 19, 1987, as is set forth in 
 
         the October 20, 1987 letter of Victor L. Schuster, M.D., to Dr. 
 
         Dean.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. VanGilder wrote Dr. Dean on November 10, 1987.  He noted 
 
         that claimant had been seen on that date and stated that he had 
 
         become completely well without discomfort in the muscles or 
 
         joints over the past two and one-half weeks.  In summary, Dr. 
 
         VanGilder opined that claimant had completely recovered from his 
 
         work injury and was at that time asymptomatic with normal 
 
         neurological examination.  In his testimony, claimant disputed 
 
         these findings (exhibit 17) and believed that they arose from a 
 
         misunderstanding. In general, claimant was dissatisfied with Dr. 
 
         VanGilder's care and felt that he "gave up" when no further 
 
         relief from symptoms was forthcoming.
 
         
 
              Dr. Morgan wrote Dr. Dean on November 12, 1987.  She stated 
 
         that claimant had felt fine over the last two weeks and had not 
 
         had any muscle or joint discomfort or weakness.  Claimant had 
 
         been lifting weights and swimming without problems.  "The hip 
 
         discomfort, headaches and back discomfort that he had since his 
 
         injury in June have all resolved."  She further commented that 
 
         the exact etiology of claimant's October, 1987 emergency was 
 
         unknown. Dr. Morgan further specified that claimant was able at 
 
         that time to return to full employment and full activity.  In his 
 
         testimony, claimant explained that he had had a good two weeks 
 
         prior to his visit of November 10, 1987.
 
              
 
              As noted, Dr. Morgan wrote claimant again on November 24, 
 
         1987.  She stated that he was able to return to full employment 
 
         without any restrictions.  Claimant testified that he did not 
 
         receive this letter and also that he disputed Dr. Morgan's 
 
         findings.
 
         
 
              Dr. VanGilder wrote a letter "To Whom It May Concern" on 
 
         December 2, 1987:
 
         
 
              On my last examination on November 10, 1987 he was 
 
              neurologically completely within normal limits, and I feel 
 
              he has completely recovered from his injury.  There is no 
 
              contraindication to him returning to him returning to work 
 
              full time.
 
         
 
              After his injury, claimant sought unsuccessfully to obtain a 
 
         position with the Muscatine Fire Department.  He had been on a 
 
         waiting list for some time after taking examinations.  Mark 
 
         Odell, M.D., wrote to William Whitmore, M.D., on February 5, 
 
         1988, concerning claimant's potential employment as a 
 
         firefighter.  Based on Dr. VanGilder's letters and his own 
 
         examination of claimant, Dr. Odell opined that claimant "has 
 
         certainly recovered from his injuries."  However, Dr. Odell was 
 
         troubled by Dr. VanGilder's statements concerning minimal 
 
         objective evidence for claimant's subjective symptoms and the 
 
         lengthy recovery time, over four months.  This was his reason for 
 
         referring claimant to Dr. Whitmore.
 
         
 
              Dr. Whitmore's notes dated February 17, 1988, stated that he 
 
         found no evidence of organic back problems or residuals of any 
 
         injury.  Dr. Whitmore noted that claimant denied any back 
 
         complaints whatsoever, numbness, or any problems at all.  In his 
 
         testimony, claimant noted that he dislikes Dr. Whitmore for 
 
         personal reasons and complained that Dr. Whitmore did not examine 
 
         him, but merely took an x-ray and asked how he was feeling. 
 
         Claimant disputes that he told Dr. Whitmore that he had no pain 
 
         at all and further that he denied numbness.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. VanGilder saw claimant again on May 13, 1988, for 
 
         complaints of back pain.  He wrote Dr. Dean on that date to opine 
 
         that claimant's symptoms were muscular in nature and that he 
 
         could find no underlying etiology.  He recommended back 
 
         strengthening exercises and swimming with simple analgesics for 
 
         pain such as aspirin.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The parties have stipulated an employment relationship, that 
 
         claimant sustained an injury arising out of and in the course of 
 
         that employment, and that the injury caused temporary disability 
 
         or healing period.  The extent of temporary total disability is 
 
         in dispute.  Under Iowa Code section 85.33(1), temporary total 
 
         disability is compensated "until the employee has returned to 
 
         work or is medically capable of returning to employment 
 
         substantially similar to the employment in which the employee was 
 
         engaged at the time of injury, whichever occurs first."  Healing 
 
         period benefits under Iowa Code section 85.34(1) are 
 
         substantially similar except that compensation is payable from 
 
         the date of injury (under Iowa Code section 85.32, compensation 
 
         is payable beginning the fourth day unless the incapacity extends 
 
         beyond fourteen days) and that a third factor for ending the 
 
         healing period is added:  That it is medically indicated that 
 
         significant improvement from the injury is not anticipated.
 
         
 
              As is set forth below, this decision finds that claimant has 
 
         failed to meet his burden of proof in establishing permanent 
 
         disability.  Therefore, his entitlement is to temporary, total 
 
         disability as opposed to healing period benefits.
 
         
 
              On November 10, 1987, Dr. VanGilder found that claimant had 
 
         completely recovered from the work injury and was asymptomatic. 
 
         Dr. VanGilder's letter of December 2, 1987, related back to the 
 
         examination of November 10 and found there was no 
 
         contraindication to claimant returning to work full time.  No 
 
         other medical evidence contradicts Dr. VanGilder.  Thus, the 
 
         period of temporary total disability ended on November 10, 1987 
 
         when claimant was medically capable of returning to employment 
 
         substantially similar to his work at the time of injury, this 
 
         being the first occurrence of a statutory basis to end temporary 
 
         disability.  Because the disability extended beyond fourteen days 
 
         from the date of injury, compensation during the third week of 
 
         disability must be increased by adding three days of compensation 
 
         equivalent to the three-day waiting period set forth in the first 
 
         unnumbered paragraph of Iowa Code section 85.32.  That is, for 
 
         all practical purposes, claimant's period of temporary total 
 
         disability extends from June 20, 1987 through November 10, 1987.  
 
         This is 20 weeks, 4 days duration.  The parties stipulated that 
 
         claimant was paid 29 weeks, 1 day compensation at the stipulated 
 
         rate.  Therefore, claimant has been paid in excess of his 
 
         entitlement to benefits for temporary total disability.
 
               
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of June 20, 1987 is causally related 
 
         to the disability on which 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).
 
               
 
              Of course, before the issue of causal connection is 
 
         examined, it is necessary that a permanent disability actually 
 
         exist. Claimant bears the burden of proof on this issue.  
 
         However, all of the medical evidence is in accord:  Claimant has 
 
         no permanent disability observable by any objective means.  As 
 
         has been seen, Dr. VanGilder found claimant to have completely 
 
         recovered from his work injury as of November 10, 1987.  Noting 
 
         that claimant had felt fine over the last two weeks and had no 
 
         muscle or joint discomfort or weakness and had been lifting 
 
         weights and swimming without problems, Dr. Morgan concluded that 
 
         the symptomatology related to claimant's injury had completely 
 
         resolved.  Based on Dr. VanGilder's letters and his own 
 
         examination, Dr. Odell opined that claimant "has certainly 
 
         recovered from his injuries."  For reasons apparently related to 
 
         the possibility that this opinion was in error and could lead to 
 
         future liability of the Muscatine Fire Department, Dr. Odell 
 
         referred claimant to Dr. Whitmore for a second opinion.  Noting 
 
         that claimant at that time denied any back complaints or other 
 
         problems whatsoever, Dr. Whitmore stated that he found no 
 
         evidence of organic back problems or residuals of any injury.  
 
         There is no countervailing medical evidence in support of the 
 
         theory that claimant has suffered permanent impairment of any 
 
         kind.
 
         
 
              Of course, claimant testified that he continues to suffer 
 
         pain.  Yet, it has been held that absent objective findings, pain 
 
         is not equivalent to impairment.  Waller v Chamberlain Mfg., II 
 
         Iowa Industrial Commissioner Report, 419 (1981).  Claimant's 
 
         testimony to the degree of pain he now suffers is of doubtful 
 
         credibility.  It strikes this writer as most unlikely that so 
 
         many physicians would glaringly misreport what claimant stated 
 
         during office examinations.  Yet, as has been seen, even if 
 
         claimant's credibility had been greater, pain itself does not 
 
         translate to impairment in the absence of objective physical 
 
         findings.  It is therefore held that claimant has failed to meet 
 
         his burden of proof in establishing any permanent disability 
 
         resulting from his stipulated work injury of June 20, 1987.
 
         
 
              The medical expenses at issue in this case are all related 
 
         to claimant's emergency hospitalization in October, 1987.  Of 
 
         course, claimant also bears the burden of proof as to 
 
         establishing causal connection between the work injury (since he 
 
         was still temporarily disabled at the time of the emergency) and 
 
         necessity of medical expenses.  This burden has not been met.  No 
 
         physician indicates this hospitalization was related to 
 
         claimant's back injury. Rather, it has been variously opined that 
 
         the exact etiology of the hospitalization is unknown and that 
 
         claimant has been diagnosed as suffering a viral infection.  As 
 
         claimant has failed to meet his burden of proof on the issue, 
 
         medical benefits beyond those already paid by defendants will not 
 
         be awarded.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                 FINDINGS OF FACT
 
         
 
              THEREFORE, based on the evidence presented, the following 
 
         ultimate facts are found:
 
         
 
              1.  Claimant was employed by defendant Keller Industries on 
 
         June 20, 1987.
 
         
 
              2.  Claimant suffered a stipulated work injury on June 20, 
 
         1987.
 
              
 
              3.  Claimant was disabled from the date of injury until 
 
         November 10, 1987, when he was found to have completely recovered 
 
         from his work injury.
 
         
 
              4.  Claimant has suffered no permanent impairment by reason 
 
         of his work injury.
 
         
 
              5.  Although claimant was hospitalized on an emergency basis 
 
         in October, 1987, the hospitalization has not been shown to be 
 
         related to his work injury, but instead related to a viral 
 
         infection or other problems of unknown etiology.
 
              
 
              6.  As stipulated, defendants paid claimant 29 weeks, 1 day 
 
         compensation at the stipulated rate of $109.29 prior to hearing.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant suffered an injury on June 20, 1987, arising 
 
         out of and in the course of his employment.
 
              
 
              2.  By reason of his work injury, claimant was temporarily 
 
         disabled and entitled to temporary total disability benefits from 
 
         June 20, 1987 through November 10, 1987.  However, defendants 
 
         have paid claimant benefits in excess of this entitlement.
 
              
 
              3.  Claimant has failed to meet his burden of proof in 
 
         establishing permanent disability resulting from his work injury.
 
              
 
              4.  Claimant has failed to meet his burden of proof in 
 
         establishing entitlement to hospital expenses incurred in 
 
         October, 1987.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant shall take nothing from this proceeding.
 
              
 
              The costs of this action shall be assessed to claimant 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              Signed and filed this 28th day of September, 1989.
 
              
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            DAVID RASEY
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. David W. Newell
 
         Attorney at Law
 
         323 East 2nd Street
 
         P.O. Box 175
 
         Muscatine, Iowa  52761
 
         
 
         Mr. Craig A. Levien
 
         Attorney at Law
 
         600 Union Arcade Building
 
         111 East Third Street
 
         Davenport, Iowa  52801
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
                                              51402.40, 1402.60, 51803
 
                                              Filed September 28, 1989
 
                                              DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         HOY D. COOKE,
 
         
 
              Claimant,
 
              
 
         vs.                                        File No. 857046
 
         
 
         KELLER INDUSTRIES,                      A R B I T R A T I O N
 
         
 
              Employer,                             D E C I S I O N
 
         
 
         and
 
         
 
         CIGNA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
              
 
              
 
         51402.40, 51803
 
         
 
              Claimant's subjective complaints of pain did not establish 
 
         permanent disability in light of unanimous medical opinion that 
 
         all problems had totally resolved.
 
         
 
         1402.60
 
         
 
              Claimant failed to establish right to medical benefits for 
 
         emergency hospitalization during his period of temporary total 
 
         disability, where medical opinion was that emergency was caused 
 
         by viral infection or was of unknown etiology.
 
              
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         before the iowa industrial commissioner
 
         ____________________________________________________________
 
                   :
 
         RONALD WARREN, :
 
                   :
 
              Claimant, :      File No. 857199
 
                   :
 
         vs.       :        A P P E A L
 
                   :
 
         FRENCH & HECHT,     :      D E C I S I O N
 
                   :
 
              Employer, :
 
              Self-Insured,  :
 
              Defendant.     :
 
         ___________________________________________________________
 
         
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         August 28, 1990 is affirmed and is adopted as the final agency 
 
         action in this case, with the following additional analysis: 
 
         Claimant has not sought alternative employment.  It is normally 
 
         incumbent upon an injured worker at a hearing to determine loss 
 
         of earning capacity to demonstrate a reasonable effort to secure 
 
         employment in the area of residence.  Hainey v. Protein Blenders, 
 
         Inc., 445 N.W.2d 398 (Iowa App. 1989).  Claimant's industrial 
 
         disability must be evaluated without reliance on the odd-lot 
 
         doctrine.
 
         Claimant is 51 years old.  Claimant has ratings of impairment of 
 
         33 percent of the right arm, and 30 percent of the left arm.  
 
         Claimant has a lifting restriction of ten pounds.  Claimant has 
 
         worked most of his working life in heavy labor and foundry work.  
 
         Claimant cannot return to his old job or any similar job where 
 
         claimant would have to use his arms for any substantial amount of 
 
         lifting.  Claimant is also illiterate, and cannot read job 
 
         application forms or apply for any job that requires the ability 
 
         to read or write.  Based on these and all other appropriate 
 
         factors for determining industrial disability, it is determined 
 
         that claimant is permanently and totally disabled.
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         Defendant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of January, 1991.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            CLAIR R. CRAMER
 
                    ACTING INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James M. Hood
 
         Attorney at Law
 
         302 Union Arcade Bldg.
 
         Davenport, Iowa 52801
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         Executive Square, Suite 102
 
         400 Main Street
 
         Davenport, Iowa 52801
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9999
 
            Filed January 31, 1991
 
            MAM
 
            Clair R. Cramer
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            RONALD WARREN, :
 
                      :
 
                 Claimant, :      File No. 857199
 
                      :
 
            vs.       :        A P P E A L
 
                      :
 
            FRENCH & HECHT,     :      D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ___________________________________________________________
 
            
 
            9999
 
            Summary affirmance of deputy's decision filed August 28, 
 
            1990, with short additional analysis.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RONALD L. WARREN,             :
 
                                          :         File No. 857199
 
                 Claimant,                :
 
                                          :      A R B I T R A T I O N
 
            vs.                           :
 
                                          :         D E C I S I O N
 
            FRENCH & HECHT,               :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Ronald L. Warren, against his employer, French 
 
            & Hecht, self-insured employer, defendant.  The case was 
 
            heard on February 6, 1990, in Davenport, Iowa at the 
 
            Bicentennial Building.  The record consists of the testimony 
 
            of claimant and the testimonies of Douglas E. Moormin and 
 
            Euwell Carpenter.  Additionally, the record consists of 
 
            joint exhibits A-J.
 
            
 
                                      issues
 
            
 
                 The sole issues to be determined are:  1) whether 
 
            claimant received an injury which arose out of and in the 
 
            course of employment; 2) whether there is a causal 
 
            relationship between the alleged injury and the disability; 
 
            3) whether claimant is entitled to temporary 
 
            disability/healing period benefits or permanent partial 
 
            disability benefits; and, 4) 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 51 years old.  He had been employed in a 
 
            foundry for the major portion of his working career.  
 
            Claimant commenced his employment with defendant in 1971.  
 
            He was hired to weld wheels and rims.  For 10 to 12 years, 
 
            he would pick up a wheel with one hand, put it in a machine, 
 
            weld it and pull the wheel out again.  The task would 
 
            require claimant to lift from 50 to 150 pounds.
 
            
 
                 Claimant, while at work, was struck by lightning in 
 
            1975.  The lightning caused the palms of claimant's gloves 
 
            to burn.  In 1981 or 1982, a wheel fell.  Claimant attempted 
 
            to catch it, but both of his wrists were bent back to the 
 
            forearms, in his attempt.
 
            
 
                 Periodically, claimant would have various problems with 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            his wrists.  However, he never missed any work time until 
 
            August 18, 1987.  On that date, claimant was working at the 
 
            Walcott plant where he was assembling racks approximately 
 
            six feet from the ground.  The racks were slightly above 
 
            claimant's head.  One end of a 75 pound bar fell on 
 
            claimant's hands.  His wrists were bent backwards.  The 
 
            impact knocked claimant to the ground.  He indicated he felt 
 
            pain from his wrists to his ears.
 
            
 
                 Claimant was examined by Richard L. Shaffer, D.O.  
 
            Claimant was sent to John M. Hoffman, M.D.  He ordered 
 
            x-rays of claimant's wrists.  Then Dr. Hoffman sent claimant 
 
            to Richard R. Ripperger, M.D., an orthopedic surgeon who 
 
            specialized in hand surgery.  Dr. Ripperger first examined 
 
            claimant on October 8, 1987.
 
            
 
                 Dr. Ripperger described claimant's condition in a 
 
            report dated December 29, 1987.  The physician wrote in 
 
            relevant portion:
 
            
 
                 According to the history as given to me by the 
 
                 patient, I believe that the injury in August of 
 
                 1987 was a hyperdorsiflexion injury to the wrists.  
 
                 I think that it aggravated an underlying 
 
                 condition.  He has moderately severe arthritis in 
 
                 both wrists and both distal radioulnar joints.  
 
                 The arthritic changes appear to be post-traumatic 
 
                 but they certainly didn't develop over a two month 
 
                 period of time from the August injury until when I 
 
                 saw him in October of 1987.
 
            
 
                 Dr. Ripperger treated claimant for post-traumatic 
 
            arthritis of both wrists.  A synovectomy of the right wrist 
 
            and a distal radioulnar joint excision of the distal ulna 
 
            and partial wrist fusion was performed on December 1, 1987.  
 
            With respect to the left wrist, a synovectomy was performed.  
 
            Dr. Ripperger opined the changes in both wrists were 
 
            moderately severe.
 
            
 
                 Dr. Ripperger opined that as of February of 1989, 
 
            claimant's healing period had ended.  Claimant was released 
 
            to return to work.  Dr. Ripperger determined restrictions 
 
            would need to be set on a trial and error basis.  Also, 
 
            claimant was to refrain from repetitive gripping or lifting 
 
            and he was not to lift more than 10 pounds or to use 
 
            vibrating tools.
 
            
 
                 Claimant, upon his release to return to work, was not 
 
            offered a position in line with his work restrictions by 
 
            defendant.  Claimant testified he had not looked for work in 
 
            the eight to ten months prior to the hearing.  Nor had he 
 
            sought the assistance of Job Service of Iowa.  At the time 
 
            of the hearing, claimant was unemployed.
 
            
 
                                conclusions of law
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of August 18, 
 
            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. 
 
            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, 252 Iowa 613, 
 
            620, 106 N.W.2d 591 (1960), and cases cited.
 
            
 
                 In the case at hand, claimant has established the 
 
            requisite causal connection.  Dr. Ripperger, in his report 
 
            of March 30, 1989, causally related claimant's condition to 
 
            his work injury of August 18, 1987.  The surgeon opined: 
 
            "[T]he dorsiflexion injury of 8-18-87, however, aggravated 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            the underlying wrist conditions and increased symptoms to 
 
            the point where Mr. Warren could not perform work or even 
 
            most simple activities of daily living...."  Likewise, in 
 
            his deposition, Dr. Ripperger testified the incident on 
 
            August 18, 1987, aggravated claimant's underlying condition.
 
            
 
                 In light of the expert testimony provided, it is the 
 
            determination of the undersigned that claimant has 
 
            established his condition was materially aggravated by the 
 
            August 18, 1987 work injury.
 
            
 
                 The next issue to discuss is the nature and extent of 
 
            claimant's condition.
 
            
 
                 Claimant must establish by a preponderance of the 
 
            evidence the extent of weekly benefits for permanent 
 
            disability to which claimant is entitled.  Permanent partial 
 
            disabilities are classified as either scheduled or 
 
            unscheduled.  A specific scheduled disability is evaluated 
 
            by the functional method; the industrial method is used to 
 
            evaluate an unscheduled disability.  Martin v. Skelly Oil 
 
            Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. 
 
            Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. 
 
            DeLong's Sportswear, 332 N.W.2d 886, 997 (Iowa 1983).  When 
 
            the result of an injury is loss to a scheduled member, the 
 
            compensation payable is limited to that set forth in the 
 
            appropriate subdivision of Code section 85.34(2).  Barton v. 
 
            Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961).  
 
            "Loss of use" of a member is equivalent to 'loss' of the 
 
            member.  Moses v. National Union C.M. Co., 194 Iowa 819, 184 
 
            N.W. 746 (1922).  Pursuant to Code section 85.34(2)(u) the 
 
            industrial commissioner may equitably prorate compensation 
 
            payable in those cases wherein the loss is something less 
 
            than that provided for in the schedule.  Blizek v. Eagle 
 
            Signal Company, 164 N.W.2d 84 (Iowa 1969).
 
            
 
                 In the case at hand, claimant is governed by section 
 
            85.34(2)(s).  The section provides in relevant portion:
 
            
 
                 The loss of both arms, or both hands, or both 
 
                 feet, or both legs, or both eyes, or any two 
 
                 thereof, caused by a single accident, shall equal 
 
                 five hundred weeks and shall be compensated as 
 
                 such, however, if said employee is permanently and 
 
                 totally disabled the employee may be entitled to 
 
                 benefits under subsection 3.
 
            
 
                 Claimant argues he is permanently and totally disabled, 
 
            or in the alternative he is an odd-lot employee under Guyton 
 
            v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985).  The 
 
            undersigned is in agreement with claimant.  He is 
 
            permanently and totally disabled under the rationale of 
 
            Guyton.
 
            
 
                 Under the odd-lot doctrine, which has been formally 
 
            adopted by the Iowa Supreme Court in Guyton, 373 N.W.2d 101 
 
            (Iowa 1985), a worker becomes an odd-lot employee when an 
 
            injury makes the worker incapable of obtaining employment in 
 
            any well-known branch of the labor market.  An odd-lot 
 
            worker is thus totally disabled if the only services the 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            worker can perform are so limited in quality, dependability, 
 
            or quantity that a reasonably stable market for them does 
 
            not exist.  Id., citing Lee v. Minneapolis Street Railway 
 
            Company, 230 Minn. 315, 320, 41 N.W.2d 433, 436 (1950).  The 
 
            rule of odd-lot allocates the burden of production of 
 
            evidence.  If the evidence of degree of obvious physical 
 
            impairment, coupled with other facts such as claimant's 
 
            mental capacity, education, training or age, places claimant 
 
            prima facie in the odd-lot category, the burden should be on 
 
            the employer to show that some kind of suitable work is 
 
            regularly and continuously available to the claimant.  
 
            Certainly in such a case it should not be enough to show 
 
            that claimant is physically capable of performing light work 
 
            and then round out the case for non-compensable by adding a 
 
            presumption that light work is available.  Guyton, 373 
 
            N.W.2d at 105.
 
            
 
                 When a worker makes a prima facie case of total 
 
            disability by producing substantial evidence that the worker 
 
            is not employable in the competitive labor market, the 
 
            burden to produce evidence of suitable employment shifts to 
 
            the employer.  If the employer fails to produce such 
 
            evidence and the trier of fact finds the worker falls in the 
 
            odd-lot category, the worker is entitled to a finding of 
 
            total disability.  Even under the odd-lot doctrine, the 
 
            trier of fact is free to determine the weight and 
 
            credibility of the evidence in determining whether the 
 
            worker's burden of persuasion has been carried.  Only in an 
 
            exceptional case would evidence be sufficiently strong to 
 
            compel a finding of total disability as a matter of law.  
 
            Guyton, 373 N.W.2d at 106.  The court went on to state:
 
            
 
                 The commissioner did not in his analysis address 
 
                 any of the other factors to be considered in 
 
                 determining industrial disability.  Industrial 
 
                 disability means reduced earning capacity.  Bodily 
 
                 impairment is merely one factor in a gauging 
 
                 industrial disability.  Other factors include the 
 
                 worker's age, intelligence, education, 
 
                 qualifications, experience, and the effect of the 
 
                 injury on the worker's ability to obtain suitable 
 
                 work.  See Doerfer Division of CCA v. Nicol, 359 
 
                 N.W.2d 428, 438 (Iowa 1984).  When the combination 
 
                 of factors precludes the worker from obtaining 
 
                 regular employment to earn a living, the worker 
 
                 with only a partial functional disability has a 
 
                 total disability.  See McSpadden v. Big Ben Coal 
 
                 Co., 288 N.W.2d 181, 192 (Iowa 1980).
 
            
 
                 Dr. Ripperger has provided functional impairment 
 
            ratings for each of the upper extremities.  He has 
 
            attributed the following impairment ratings to the August 
 
            18, 1987 injury:  right upper extremity 36 percent - three 
 
            percent elbow = 33 percent, left upper extremity 30 percent.
 
            
 
                 Defendant-employer has refused to provide employment to 
 
            claimant which would comply with the restrictions imposed by 
 
            Dr. Ripperger.  No light duty position has been offered to 
 
            claimant.  He is willing but incapable of obtaining 
 
            employment in any well known branch of the labor market.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 There is no competitive employment for which claimant 
 
            is suited.  He is illiterate.  He can only sign his name and 
 
            perform simple arithmetic.  He has no high school education 
 
            or GED.  For most of his working career claimant has worked 
 
            in a foundry.  He has no special skills.  His age is working 
 
            against him.  There is very little likelihood he can derive 
 
            benefits from any type of rehabilitation.  Claimant cannot 
 
            lift more than 10 pounds or engage in any repetitive 
 
            lifting.
 
            
 
                 Claimant's job opportunities are dismal at best.  He 
 
            cannot even read and complete a job application.  Without 
 
            these basic skills, claimant is precluded from attaining or 
 
            even searching for a position in the competitive labor 
 
            market.  Defendants have been unable to produce any well 
 
            known branch of the labor market for which claimant is 
 
            capable of obtaining employment.
 
            
 
                 It is the determination of the undersigned that 
 
            claimant is totally disabled under Guyton, supra.  The only 
 
            services claimant can perform are so limited in quality, 
 
            dependability, or quantity that a stable labor market for 
 
            him is non-existent.
 
            
 
                 Also in dispute is claimant's entitlement to healing 
 
            period benefits.  Section 85.34(1) of the Iowa Code defines 
 
            healing period as follows:
 
            
 
                 If an employee has suffered a personal injury 
 
                 causing permanent partial disability for which 
 
                 compensation is payable as provided in subsection 
 
                 2 of this section, the employer shall pay to the 
 
                 employee compensation for a healing period, as 
 
                 provided in section 85.37, beginning on the date 
 
                 of injury, and until the employee has returned to 
 
                 work or it is medically indicated that significant 
 
                 improvement from the injury is not anticipated or 
 
                 until the employee is medically capable of 
 
                 returning to employment substantially similar to 
 
                 the employment in which the employee was engaged 
 
                 at the time of injury, whichever occurs first.
 
            
 
                 Because this case involves permanent total disability 
 
            benefits, the undersigned does not need to address the issue 
 
            of healing period benefits.
 
            
 
                 The next issue is the matter of medical expenses under 
 
            section 85.27.  The parties have stipulated the fees for the 
 
            medical services are fair and reasonable, that the expenses 
 
            are reasonable and necessary, that the expenses are 
 
            authorized and the causal connection of the expenses to 
 
            treatment for a medical condition upon which claimant is now 
 
            losing his claim is admitted but that the causal connection 
 
            to a work injury is disputed.  The undersigned determines 
 
            the fees are causally related to the work injury of August 
 
            18, 1987.
 
            
 
                 Claimant testified 80 percent of all medical expenses 
 
            were paid by Blue Cross/Blue Shield.  Claimant testified he 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            paid the balance of 20 percent.  He is to be reimbursed.  
 
            The medical expenses include reimbursement to claimant for:
 
            
 
                 Dr. Ripperger                          $  368.05
 
                 Physical Rehabilitation Services, Inc.    700.20
 
                 Pathology Group                            70.75
 
                 Dr. Jerome                                 20.00
 
                 St. Luke's Hospital                        99.00
 
                 Radiology Group, P.C.                     111.25
 
            
 
                                          Total         $1,369.26
 
            
 
                 Defendant is responsible for all other medical expenses 
 
            reasonably related to the work injury of August 18, 1987.
 
            
 
                 The final issue is whether claimant is entitled to 
 
            penalty benefits under section 86.13.  The determination is 
 
            in the negative.  Claimant has failed completely to meet his 
 
            burden of proof.  No evidence on this issue was offered by 
 
            claimant.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendant is to pay unto claimant weekly benefits for 
 
            the duration of claimant's period of permanent total 
 
            disability with said benefits commencing on December 1, 1987 
 
            and running continuously at the stipulated rate of two 
 
            hundred thirteen and 21/l00 dollars ($213.21) per week.
 
            
 
                 Accrued benefits are to be paid in a lump sum together 
 
            with statutory interest at the rate of ten percent (10%) per 
 
            year pursuant to section 85.30, Iowa Code, as amended.
 
            
 
                 Defendant is responsible for reasonable and necessary 
 
            medical expenses related to this injury and defendant shall 
 
            reimburse claimant one thousand three hundred sixty-nine and 
 
            26/l00 dollars ($1,369.26) for out of pocket medical 
 
            expenses.
 
            
 
                 Costs are taxed to defendant pursuant to Division of 
 
            Industrial Services Rule 343-4.33.
 
            
 
                 Defendant shall file a claim activity report.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of August, 1990.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Mr. James M. Hood
 
            Attorney at Law
 
            302 Union Arcade Bldg
 
            Davenport  IA  52801
 
            
 
            Mr. Larry L. Shepler
 
            Attorney at Law
 
            Executive Sq  STE 102
 
            400 Main St
 
            Davenport  IA  52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1803.1
 
                                               Filed August 28, 1990
 
                                               MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RONALD L. WARREN,             :
 
                                          :         File No. 857199
 
                 Claimant,                :
 
                                          :      A R B I T R A T I O N
 
            vs.                           :
 
                                          :         D E C I S I O N
 
            FRENCH & HECHT,               :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            1803.1
 
            Claimant sustained bilateral injuries to his hands as a 
 
            result of a work injury which arose out of and in the course 
 
            of his employment.  Claimant had functional impairment 
 
            ratings of right extremity 36% and left extremity of 30%.  
 
            He was restricted from lifting more than 10 pounds and from 
 
            repetitive lifting in general.  Defendant-employer would not 
 
            provide a light duty position.
 
            It was determined claimant was permanently and totally 
 
            disabled under Guyton.  Claimant is 51 years old.  He had 
 
            worked in a foundry most of his working career.  He is 
 
            illiterate.  He can only sign his name and do simple 
 
            arithmetic.  He cannot even fill out a written application 
 
            form.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            RUTH A. THILGES,    :
 
                      :
 
                 Claimant, :
 
                      :   File Nos. 857208 894337
 
            vs.       :      896606 905195 905196
 
                      :    
 
            SNAP-ON TOOLS CORPORATION,    :
 
                      :        A P P E A L
 
                 Employer, :
 
                 Self-Insured             :      D E C I S I O N
 
                      :
 
            and       :
 
                      :
 
            ROYAL INSURANCE COMPANY, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
                 The record, including the transcript of the hearing 
 
            before the deputy and all exhibits admitted into the record, 
 
            has been reviewed de novo on appeal.  The decision of the 
 
            deputy filed September 27, 1993 is affirmed and is adopted 
 
            as the final agency action in this case, with the following 
 
            additional analysis and modification:
 
            
 
                 The deputy correctly excluded the report of Thomas F. 
 
            DeBartolo, M.D., served May 2, 1990.  Hearing in this matter 
 
            was held on May 15, 1990.  Clearly, service of an 
 
            independent examiner's report less than two weeks prior to 
 
            hearing resulted in prejudice and surprise to defendants.  
 
            Claimant argues vigorously that defendants were aware that 
 
            the DeBartolo report would be forthcoming.  That fact, of 
 
            itself, is beside the point.  An awareness that a report is 
 
            forthcoming does not constitute an awareness of the report's 
 
            contents.  Unless the report is available and it contents 
 
            revealed in a reasonable time prior to hearing, opposing 
 
            parties are denied their proper opportunity to cross-examine 
 
            or otherwise counter relative to the report.
 
            
 
                 Both claimant and defendants agree that claimant was 
 
            off work from September 6, 1988 to September 26, 1988 on 
 
            account of her left thumb condition.  The deputy erroneously 
 
            found that claimant was off work only from September 6, 1988 
 
            to September 20, 1988.  The arbitration decision is modified 
 
            to the extent that it is found that claimant was taken off 
 
            work from September 6, 1988 to September 26, 1988, on 
 
            account of left thumb pain.  The conclusions of law in the 
 
            arbitration decision are modified by striking the paragraph: 
 
            
 
                 "That claimant is entitled to an additional two 
 
                 weeks of healing period benefits for the injury of 
 
                 July 8, 1987, from September 6, 1988 to September 
 
     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 20, 1988."
 
            
 
                 And  inserting in lieu thereof:  
 
            
 
                 That claimant is entitled to additional healing 
 
                 period benefits for the injury of July 8, 1987, 
 
                 from September 6, 1988 to September 26, 1988.
 
            The order in the arbitration decision is modified by 
 
            striking the paragraph:
 
            
 
                 "That defendants pay to claimant an additional two 
 
                 (2)  weeks of healing periods benefits for the 
 
                 injury of July 8, 1987; for the period from 
 
                 September 6, 1988 to September 20, 1988; at the 
 
                 rate of two hundred forty-five and 54/100 dollars 
 
                 ($245.54) per week in the total amount of four 
 
                 hundred ninety-one and 08/100 dollars ($491.08) 
 
                 commencing on September 6, 1988. 
 
            
 
                 And inserting in lieu thereof:
 
            
 
                 That defendants pay to claimant additional healing 
 
                 period benefits for the injury of July 8, 1987, 
 
                 for the period from September 6, 1988 to September 
 
                 26, 1988, at the rate of two hundred forty-five 
 
                 and 54/100 dollars ($245.54) per week commencing 
 
                 on September 6, 1988.  
 
            
 
                 Claimant shall pay the costs of the appeal, including 
 
            the preparation of the hearing transcript.  
 
            
 
                 Signed and filed this ____ day of February, 1993.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BYRON K. ORTON
 
                                          INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Mark Soldat
 
            Attorney at Law
 
            714 E. State St.
 
            Algona, IA  50511
 
            
 
            Mr. Paul Thune
 
            Attorney at Law
 
            P.O. Box 9130
 
            Des Moines, IA  50306
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      53700, 51802
 
                      Filed February 10, 1993
 
                      Byron K. Orton
 
                      WRM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            RUTH A. THILGES,    :
 
                      :
 
                 Claimant, :
 
                      :   File Nos. 857208 894337
 
            vs.       :      896606 905195 905196
 
                      :    
 
            SNAP-ON TOOLS CORPORATION,    :
 
                      :        A P P E A L
 
                 Employer, :
 
                 Self-Insured             :      D E C I S I O N
 
                      :
 
            and       :
 
                      :
 
            ROYAL INSURANCE COMPANY, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            
 
            ___________________________________________________________
 
            
 
            53700
 
            
 
                 Deputy's decision affirmed and modified.
 
            Deputy properly excluded medical record served less than 15 
 
            days before hearing.
 
            
 
            51802
 
            Healing period award increased to reflect additional six 
 
            days claimant was actually off work on account of injury.
 
            
 
 
 
 
            Page   1
 
 
 
 
 
 
 
 
 
 
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RUTH A. THILGES,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :     File Nos.  857208 894337
 
            SNAP-ON TOOLS CORPORATION,    :       896606 905195 905196
 
                                          :  
 
                 Employer,                :     A R B I T R A T I O N
 
                 Self-Insured,
 
            and                           :        D E C I S I O N
 
                                          :
 
            ROYAL INSURANCE COMPANY,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                   INTRODUCTION
 
            
 
                 This is a proceeding in arbitration brought by Ruth A. 
 
            Thilges, claimant, against Snap-On Tools Corporation, 
 
            employer, self-insured, and Royal Insurance Company, 
 
            insurance carrier, defendants for benefits as the result of 
 
            an alleged injury or injuries that allegedly occurred on 
 
            August 5, 1986; June 3, 1987; December 4, 1987; August 8, 
 
            1988; and August 26, 1988; however, defendants dispute the 
 
            dates and manner in which the alleged injury or injuries 
 
            occurred.  Defendants' counsel stated that employer was 
 
            insured by Royal Insurance Company on the first three 
 
            alleged injury dates, but became self-insured on July 1, 
 
            1988, and therefore, would be self-insured on the last two 
 
            injury dates (transcript pages 12 and 13).  
 
            
 
                 A hearing was held at Storm Lake, Iowa, on May 15, 
 
            1990, and the case was fully submitted at the close of the 
 
            hearing.  Claimant was represented by Mark Soldat.  
 
            Defendants were represented by Paul Thune.  At the time of 
 
            the hearing, claimant presented a 27-page document entitled, 
 
            "Claimant's Contentions."  Defendants presented a 5-page 
 
            description of disputes.
 
            
 
                 The record consists of the testimony of Thomas W. 
 
            Johnson, paint lab technician; Diane Squires, paint line 
 
            helper; John Penton, paint line helper; Connie Thilges; 
 
            claimant's daughter; Ronald Thilges, claimant's husband; 
 
            Ruth A. Thilges, claimant; Lee Gunderson, personnel manager; 
 
            Terry Dummett, staff chemist; Ellen Gatton, supervisor; 
 
            joint exhibit A containing 231 pages, claimant's exhibits B, 
 
            C, D, E, F, and G; and defendants' exhibits 2, 3, 4, and 5.  
 
            Defendants objected to pages 205 and 208 of joint exhibit A 
 
            because it was not generated within the discovery deadline 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            set by Deputy Industrial Helenjean Walleser in the hearing 
 
            assignment order.  The discovery deadline was April 15, 
 
            1990.  The exhibit bears the date of April 16, 1990.  
 
            Defendants' objection was sustained and pages 205 and 208 of 
 
            joint exhibit A were excluded from evidence, but remain with 
 
            the record as an offer of proof at the request of claimant.  
 
            
 
                 The deputy ordered a transcript of the hearing.  Both 
 
            attorneys submitted excellent posthearing briefs.  
 
            Claimant's posthearing brief numbered 143 pages.  
 
            Defendants' posthearing brief numbered 21 pages.  
 
            
 
                                preliminary matter
 
            
 
                 Even though the prehearing report indicates that 
 
            claimant sustained an injury or injuries which arose out of 
 
            and in the course of employment with employer, it also 
 
            states that the date or dates and manner of the injury 
 
            occurrence or occurrences, however, is disputed.  Therefore, 
 
            the issue of whether claimant sustained an injury on the 
 
            five alleged dates, how the injury occurred, and the 
 
            determination of the injury date must be determined by the 
 
            deputy in order to properly decide the case.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing:
 
            
 
                 Whether claimant sustained an injury or injuries which 
 
            arose out of and in the course of employment with employer; 
 
            to include whether claimant sustained one cumulative injury 
 
            on May 14, 1990 (the day before hearing) or whether claimant 
 
            sustained separate injuries;
 
            
 
                 Whether the injury or injuries were the cause of 
 
            temporary or permanent disability;
 
            
 
                 Whether claimant in entitled to temporary or permanent 
 
            disability benefits, and is so, the nature and extent of 
 
            benefits to which he is entitled;
 
            
 
                 What is the proper rate of compensation for any 
 
            benefits awarded;
 
            
 
                 Whether claimant is entitled to penalty benefits 
 
            pursuant to Iowa Code section 86.13(4);
 
            
 
                 Whether claimant is entitled to interest, and if so, 
 
            how the interest is to be calculated;
 
            
 
                 Whether claimant gave timely notice pursuant to Iowa 
 
            Code section 85.23 and timely commenced an action pursuant 
 
            to Iowa Code section 85.26 are affirmative defenses which 
 
            have been asserted by defendants.
 
            
 
                                 findings of fact
 
            
 
                                      injury
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 It is determined that the alleged injury of August 5, 
 
            1986 (file number 857208); the alleged injury of June 3, 
 
            1987 (file number 905195); and the alleged injury of 
 
            December 4, 1987 (file number 905196); all constitute one 
 
            cumulative injury which occurred on July 8, 1987, when 
 
            claimant was first forced to leave work for bilateral carpal 
 
            tunnel surgery.
 
            
 
                 It is further determined that this injury of July 8, 
 
            1987, constitutes an injury to claimant's left thumb, both 
 
            hands and arms and the right shoulder.  Claimant first 
 
            manifested right shoulder and right arm pain as early as 
 
            December 12, 1985, and right wrist and right arm pain on 
 
            March 19, 1986.  The condition became bilateral on August 6, 
 
            1986 (joint exhibit A, pp. 8-10, 17, 18, 23, 24, 27 & 
 
            38-40).  
 
            
 
                 Ronald S. Bergman, M.D., an orthopedic surgeon took 
 
            claimant off work on July 8, 1987 (jt. ex. A, p. 41) and 
 
            performed right carpal tunnel surgery on July 31, 1987 (ex. 
 
            A, p. 43) and left carpal tunnel surgery on December 4, 1987 
 
            (ex. A, p. 68).  On December 22, 1987, Dr. Bergman 
 
            determined that claimant had de Quervain syndrome of the 
 
            left thumb (jt. ex. A, pp. 72 & 74).  He performed surgery 
 
            to release the left thumb on February 12, 1988 (jt. ex. A, 
 
            p. 83).  
 
            
 
                 While treating with Dr. Bergman for her hands, she also 
 
            saw Kirk D. Green, D.O., an orthopedic surgeon, on October 
 
            16, 1987, with an 18-month history of pain in the right 
 
            shoulder which occurred at work when she was repetitively 
 
            lifting heavy objects.  Dr. Green diagnosed impingement 
 
            syndrome, right shoulder (jt. ex. A, p. 53).  On January 7, 
 
            1988, he recommended surgical decompression in the form of 
 
            acromioplasty and excision of the coraco-acromial ligament 
 
            (jt. ex. A, p. 73).
 
            
 
                 Claimant was then requested to see J. Michael Donohue, 
 
            M.D., an orthopedic surgeon, for a second opinion.  When 
 
            conservative treatment was not successful, he performed a 
 
            shoulder decompression, including a partial acromionectomy, 
 
            resection of the coracoacromial ligament and excision of the 
 
            subacromial bursa on March 17, 1988 (jt. ex A, p. 95).  He 
 
            released claimant to return to work on May 24, 1988, four 
 
            hours a day (jt. ex. A, p. 109) and she gradually worked up 
 
            to eight hours a day by June 15, 1988 (jt. ex. A, p. 11).  
 
            
 
                 Dr. Bergman said that the bilateral carpal tunnel 
 
            syndrome and releases and the left de Quervain disease and 
 
            release were all the result of repetitive work that claimant 
 
            performed for employer (jt. ex. A, p. 192).  Dr. Donohue, on 
 
            the occasion of his first report and on several subsequent 
 
            reports, clearly indicated that claimant's right shoulder 
 
            problems were caused by repetitive use of the arms at or 
 
            above chest level (jt. ex. A, p. 75).  In his final 
 
            evaluation he stated, "At this point, the only restriction 
 
            that I believe should be permanent would be to restrict 
 
            repetitive use of her right upper extremity above chest 
 
            level."  (jt. ex. A, p. 156).
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 Thus, claimant's medical history described above, as 
 
            well as the opinion of her two orthopedic surgeons, her own 
 
            testimony and the testimony of other witnesses verify that 
 
            claimant sustained one cumulative injury which arose 
 
            essentially from the repetitive use of her upper extremities 
 
            in the course of her employment duties performed for 
 
            employer.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 
 
            (Iowa 1985).
 
            
 
                 It is determined that claimant did sustain an injury to 
 
            her back on August 8, 1988 (file number 894337), which arose 
 
            out of and in the course of employment with employer.  The 
 
            nurse's notes show that claimant reported back pain on 
 
            August 8, 1988.  She bent down to pick up some materials and 
 
            felt something pop in her back.  The company nurse sent 
 
            claimant to see S.A. Mueller, D.C., who diagnosed lumbalgia 
 
            (jt. ex. A, p. 117).
 
            
 
                 With respect to the alleged injury of August 26, 1988 
 
            (file number 896606), it is determined that claimant did not 
 
            sustain an injury which arose out of and in the course of 
 
            employment with employer on that date.  There is no evidence 
 
            in the medical records that claimant reported an injury on 
 
            this date to the nurse or any physician.  
 
            
 
                 Claimant was taken off work from September 6, 1988 to 
 
            September 20, 1988, a period of 14 days by Dr. Bergman 
 
            because of left thumb pain (ex. A, p. 138).  The company 
 
            nurse recorded that this first arose on September 2, 1988, 
 
            when claimant complained of more pain where the surgery was 
 
            done on her left thumb and she was sent to see Dr. Bergman 
 
            on September 6, 1988 (jt. ex. A, p. 136).  This episode then 
 
            is a temporary recurrence of the problems caused by the July 
 
            8, 1988, cumulative injury.
 
            
 
                 Wherefore, it is determined that the treatment with Dr. 
 
            Bergman for the flare-up of the left thumb pain, where the 
 
            surgery was done on her thumb, is not a new injury on August 
 
            26, 1988, but rather a temporary aggravation of the left 
 
            thumb which was included in the injury of July 8, 1987.
 
            
 
                 In summary then, it is determined that claimant 
 
            sustained a cumulative injury to her left thumb, both hands 
 
            and arms, and her right shoulder on July 8, 1987, and that 
 
            she sustained an injury to her back on August 8, 1988, and 
 
            that both of these injuries arose out of and in the course 
 
            of employment with employer.
 
            
 
                 It is determined that claimant's many manifestations of 
 
            injury do not constitute one cumulative injury that 
 
            culminated the day before the hearing on May 14, 1990.
 
            
 
                                        
 
            
 
                causal connection-entitlement-temporary disability
 
            
 
                 It is determined that the injury of July 8, 1987, was 
 
            the cause of temporary disability from July 8, 1987 to May 
 
            24, 1988, and that claimant is entitled to 45.857 weeks of 
 
            healing period benefits for this period of time.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 It is determined that the injury of August 8, 1988, was 
 
            the cause of temporary disability from August 9, 1988 to 
 
            August 15, 1988.  Claimant is not entitled to benefits for 
 
            the first three days, August 9, 10 and 11.  Iowa Code 
 
            section 85.32.  Claimant is entitled to temporary total 
 
            disability benefits for the final three days of the period, 
 
            August 12, 13 and 14 (jt. ex. A, pp. 122-124).
 
            
 
                 It is determined that claimant did not sustain a new 
 
            injury on August 26, 1988, but she did sustain a temporary 
 
            aggravation of the left thumb injury which occurred on July 
 
            8, 1987, and claimant is entitled to an additional two weeks 
 
            of healing period benefits for the period from September 6, 
 
            1988 to September 20, 1988 (jt. ex. A, pp. 138 and 142).
 
            
 
                 It is determined that claimant is entitled to temporary 
 
            partial disability from May 24, 1988 to June 18, 1988.
 
            
 
                 Claimant was released to return to work four hours per 
 
            day on May 24, 1988.  The pay period ended May 28, 1988.  
 
            Claimant then is entitled to 5/7 (.714 weeks) of her gross 
 
            weekly earnings of $373.55 that week which is $266.71 for 
 
            that week.  In the subsequent weeks she worked during the 
 
            entire pay period and her gross weekly earnings are $373.55.
 
            
 
                 Claimant's temporary partial disability (Iowa Code 
 
            section 85.33(4) is calculated as follows:
 
            
 
                 Week ending   5-28-88     6-4-88   6-11-88   6-18-88
 
                 Gross wages  $266.71     $373.55   $373.55   $373.55
 
                 Amount paid   206.00      247.20    206.00    288.40
 
                 Difference   $ 60.71     $126.35   $167.55   $ 85.15
 
                 Times 2/3       .667        .667      .667      .667
 
                 TPD          $ 40.49     $ 84.28   $111.76   $ 56.80
 
            
 
                 The temporary partial disability amounts calculated 
 
            above add up to $293.33.
 
            
 
                 The wages paid to claimant were taken from her pay 
 
            stubs (cl. ex. F3) and employer's pay records (cl. ex. C, p. 
 
            28).
 
            
 
                 Subsequent to June 14, 1988, claimant was limited to 
 
            eight hours per day of work, but no allowance is made for 
 
            temporary partial disability because it was not demonstrated 
 
            that claimant was entitled to work more than eight hours per 
 
            day or that it was her practice to work more than eight 
 
            hours per day that often.
 
            
 
                 Claimant contends that she is entitled to some form of 
 
            workers' compensation for the times that she was off work 
 
            for visits to the doctor.  The deputy can find no specific 
 
            statutory or case law authority for this proposition and 
 
            claimant has cited none.  Therefore, no workers' 
 
            compensation is awarded for time off work to visit the 
 
            doctor.
 
            
 
                casual connection-entitlement-permanent disability
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 With respect to the cumulative injury which occurred on 
 
            July 8, 1987, it is determined that claimant sustained an 
 
            injury to her left thumb and both upper extremities and that 
 
            she also received a body as a whole injury to her right 
 
            shoulder which means that the entire injury is to be 
 
            compensated industrially as an injury to the body as a 
 
            whole.
 
            
 
                 On June 20, 1989, Dr. Bergman determined that claimant 
 
            had a 4 percent permanent impairment to her left thumb and a 
 
            5 percent permanent impairment to each upper extremity (jt. 
 
            ex. A, p. 191).  He communicated these ratings to the 
 
            insurance carrier on July 12, 1989 (jt. ex. A, p. 192).  
 
            Using the Guides to the Evaluation of Permanent Impairment, 
 
            third edition, published by the American Medical 
 
            Association, a 4 percent impairment of the thumb converts to 
 
            2 percent of the hand and 2 percent of the hand converts to 
 
            2 percent of the upper extremity.  Two percent of the upper 
 
            extremity converts to 1 percent of the whole person.  Five 
 
            percent of the left upper extremity converts to 3 percent of 
 
            the whole person and 5 percent of the right upper extremity 
 
            converts to 3 percent of the whole person.  One percent, 3 
 
            percent and 3 percent combine to 7 percent of the whole 
 
            person.  
 
            
 
                 The shoulder injury is an injury to the body as a whole 
 
            because the parts surgically excised, the acromion, the 
 
            coracoacromial ligament and bursa, are parts of the body as 
 
            a whole.  On November 8, 1988, Dr. Donohue determined that 
 
            claimant has sustained a 9 percent permanent impairment of 
 
            the right upper extremity with respect to her right shoulder 
 
            decompression and he attributed this impairment to a work 
 
            injury.  He imposed a permanent restriction against 
 
            repetitive use of the right upper extremity above chest 
 
            level at that time (jt. ex. A, p. 156).  Nine percent of the 
 
            upper extremity converts to 5 percent of the body as a 
 
            whole.  For purposes of perspective 7 percent of the whole 
 
            person for the upper extremities and 5 percent of the whole 
 
            person for the right shoulder combine to 12 percent of the 
 
            whole person.
 
            
 
                 Claimant was 43 years old at the time of the injury, 45 
 
            years old at the time of the hearing, and 46 years old at 
 
            the time of this decision.  Claimant's industrial disability 
 
            is more serious because it occurred near the peak point in 
 
            her earnings career.
 
            
 
                 Education wise, claimant has a high school education 
 
            and completed a nurse's aide course in 1971.  Claimant is 
 
            young enough and has the intellectual capacity to be 
 
            retrained.
 
            
 
                 Claimant's past employments of copyreader in a 
 
            newspaper office, cook, and grocery store operator, indicate 
 
            that her potential abilities are diverse.  At the same time, 
 
            claimant has acquired practically no transferable skills in 
 
            her current employment as a production line worker and has 
 
            performed only various manual labor operations for the past 
 
            several years.
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 Retraining and re-employment are not an issue at this 
 
            time because defendant employer has accommodated claimant in 
 
            several ways in order to return her to work and also, to 
 
            enable her to continue to work for them within her 
 
            restriction of no repetitive work above chest level with the 
 
            right arm.  They have also accommodated her many health 
 
            complaints with excellent medical care.  As a result of 
 
            employer's accommodations claimant is earning more now in 
 
            actual wages than she was earning at the time of the injury.  
 
            Even though claimant has not lost actual earnings, she has 
 
            lost a significant amount of earning capacity.  
 
            
 
                 In the competitive employment market a person in their 
 
            mid-40's who has had a de Quervain release on the left 
 
            thumb, bilateral carpal tunnel surgeries on each hand and 
 
            wrist, and a shoulder decompression of the right shoulder, 
 
            who is restricted from no repetitive work above chest level, 
 
            will find it difficult to find employment when these factors 
 
            are considered in conjunction with claimant's, education, 
 
            past employments and lack of transferable skills.  
 
            Employer's accommodation for claimant's permanent 
 
            impairments and permanent restriction and other bodily 
 
            complaints will not necessarily transfer, however, to the 
 
            competitive labor market as a whole.  Hartwig v. Bishop 
 
            Implement Company, IV Iowa Industrial Commissioner Report, 
 
            159 (app. dec. June 28, 1984).  Claimant is not likely to 
 
            find other employers in the competitive employment market as 
 
            understanding, cooperative and helpful as this employer has 
 
            been.  Todd v. Department of General Services, Buildings and 
 
            Grounds, IV Industrial Commissioner Report 373 (1983).  For 
 
            these reasons claimant is entitled to an industrial 
 
            disability allowance in excess of her permanent impairment 
 
            rating to her right shoulder.  Harrison v. Busing 
 
            Automotive, Inc., file number 771088 (app. dec. July 27, 
 
            1987); Baker v. Armour Dial, Inc., file number 798226 (app. 
 
            dec. May 20, 1988).  
 
            
 
                 Claimant contends that her future work expectancy has 
 
            been shortened due to this injury.  However, this is 
 
            contrary to the opinion of claimant's physicians and 
 
            furthermore, it is a speculative matter only at this time.  
 
            Stewart v. Crouse Cartage, file number 738644 (app. dec. 
 
            filed February 20, 1987); Umphress v. Armstrong Rubber Co., 
 
            file number 723184 (app. dec. filed August 27, 1987).  
 
            
 
                 Wherefore, based upon (1) impairment ratings of 4 
 
            percent to the left thumb, 5 percent to the left upper 
 
            extremity for the carpal tunnel injury and surgery, 5 
 
            percent to the right upper extremity for the right carpal 
 
            tunnel injury and surgery, and 9 percent of the right upper 
 
            extremity for the right shoulder decompression; (2) the fact 
 
            that claimant has received four surgeries for an industrial 
 
            injury or injuries; (3) the fact that claimant has a 
 
            permanent restriction not to perform repetitive work with 
 
            the right arm above chest level; (4) the fact that claimant 
 
            has not sustained any loss of actual earnings and has been 
 
            accommodated by employer; (5) but that employer's 
 
            accommodations will not necessarily transfer to the 
 
            competitive labor market as a whole; (6) claimant's age in 
 
            the mid-40's; (7) claimant's high school education and 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            suitability for retraining; (8) claimant's lack of 
 
            transferable skills and her nine-year background performing 
 
            manual labor on a production line; (9) based on all of the 
 
            evidence in the case; (10) based on all of the factors used 
 
            to determine industrial disability, Christensen v. Hagen, 
 
            Inc., vol. I, no. 3, State of Iowa Industrial Commissioner 
 
            Decisions 529 (Appeal Decision March 26, 1985); Peterson v. 
 
            Truck Haven Cafe, Inc., vol. 1, no. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654, 658 (Appeal Decision 
 
            February 28, 1985); and (11) applying agency expertise [Iowa 
 
            Administrative Procedure Act 17A.14(5)]; it is determined 
 
            that claimant has sustained a 20 percent industrial 
 
            disability to the body as a whole and is entitled to 100 
 
            weeks of permanent partial disability benefits for the 
 
            injury which occurred on July 8, 1987.
 
            
 
                 Claimant did not demonstrate or produce any evidence 
 
            that she sustained any permanent disability as a result of 
 
            the injury to her back on August 8, 1988.  S.A. Mueller, 
 
            D.C., released her on September 19, 1988, without any 
 
            impairment rating or restrictions (jt. ex. A, p. 140).  
 
            
 
                                       rate
 
            
 
                 The rate for the injury of July 8, 1987, is determined 
 
            as follows pursuant to Iowa Code section 85.36(6):
 
            
 
                         WEEK ENDING       HRS.              WAGES
 
                    1       7-05-87         37              $371.85
 
                    2       6-28-87         31               311.55
 
                    3       6-21-87         36               361.80
 
                    4       6-14-87         40               402.00
 
                    5       6-07-87         40               402.00
 
                    6       5-31-87         32               321.60
 
                    7       5-24-87         39.20            393.96
 
                    8       5-17-87         31               311.56
 
                    9       5-10-87         40               402.00
 
                   10       5-03-87         50               402.00
 
                   11       4-26-87         40               402.00
 
                   12       4-19-87         37               371.85
 
                   13       4-12-87         40               402.00
 
                                                 TOTAL              
 
            $4,856.17
 
                                                                   î       
 
            13
 
                                                 GROSS EARNINGS     $  
 
            373.55
 
            
 
                 This data was obtained from claimant's exhibit C, page 
 
            25, which is employer's pay records and also from the pay 
 
            stubs of claimant for this period of time which is 
 
            claimant's exhibit F2.
 
            
 
                 Gross earnings of $374 for a married person with four 
 
            exemptions, according to page 37 of the Guide to Iowa 
 
            Workers' Compensation Claim Handling, for July 1, 1987, is 
 
            $245.54.
 
            
 
                 The rate for the injury of August 8, 1988, is as 
 
            follows:
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                    WEEK ENDING       HRS.              WAGES
 
                    1        8-05-88        40             *$412.00
 
                    2        7-29-88        --               ------
 
                    3        7-22-88        40             * 412.00
 
                    4        7-15-88        36.10          * 371.83
 
                    5        7-08-88        40             * 412.00
 
                    6        7-01-88        34.90          * 359.47
 
                    7        6-25-88        40             * 412.00
 
                    8        6-18-88        28               288.40
 
                    9        6-11-88        20               206.00
 
                   10        6-04-88        24               247.20
 
                   11        5-28-88        20               206.00
 
                   12        5-21-88        --                -----
 
                   13        5-14-88        --               ------ 
 
                                                 TOTAL              
 
            $2,379.30
 
                   * representative week                           î        
 
            6
 
                                                 GROSS EARNINGS     $  
 
            396.55
 
            
 
                 The only weeks that are representative are the weeks 
 
            ending August 5, 1988; July 22, 1988; July 15, 1988; July 8, 
 
            1988; July 1, 1988; and June 25, 1988.  The representative 
 
            weeks total $2,379.30.  This amount divided by six equals 
 
            gross earnings of $396.55.
 
            
 
                 This data was taken from employer's pay records as 
 
            shown on claimant's exhibit C, pages 24, 28 and 29 and 
 
            claimant's pay stubs which are claimant's exhibit F3.
 
            
 
                 Gross earnings of $397 for a married person with four 
 
            exemptions are shown on page 39 of the Guide to Iowa 
 
            Workers' Compensation Claim Handling for July 1, 1988, is 
 
            $258.97.
 
            
 
                                     penalty
 
            
 
                 It is determined that claimant is entitled to penalty 
 
            benefits pursuant to Iowa Code section 86.13(4).
 
            
 
                 Even though defendants may not have anticipated that 
 
            claimant would receive an award for industrial disability, 
 
            they, nevertheless, should have paid claimant permanent 
 
            partial disability based on scheduled member injuries when 
 
            they received the permanent impairment ratings.  However, 
 
            defendants did not timely commence the payment of permanent 
 
            partial disability benefits and demonstrated no reasonable 
 
            or probable cause or excuse for the delay in the 
 
            commencement of benefits. Iowa Code section 86.13(4).  
 
            Defendants are not held to the standard of converting and 
 
            combining impairment ratings in this case, but are held to 
 
            the minimum standard of at least paying the scheduled amount 
 
            when it was determined by the treating physician.
 
            
 
                 Dr. Bergman determined that claimant had permanent 
 
            impairment ratings of 4 percent of the left thumb, 5 percent 
 
            of the left upper extremity for the left carpal tunnel and 5 
 
            percent of the right extremity for the right carpal tunnel 
 
            on June 20, 1989 (jt. ex. A, p. 191).  This information was 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            communicated to defendants on July 12, 1989.  No payment was 
 
            made for the thumb until December 20, 1989 (defendants' ex. 
 
            4, p. 7) and no payment was made for the hands until 
 
            February 14, 1990 (def. ex. 4, p. 5).  Claimant was entitled 
 
            to a minimum of 4 percent of 60 weeks for the thumb which is 
 
            2.4 weeks; 5 percent of 250 weeks for the left arm which is 
 
            12.5 weeks; and 5 percent of 250 weeks for the right arm 
 
            which is another 12.5 weeks for a total of 27.4 weeks of 
 
            benefits.  Twenty-seven point four weeks times the rate for 
 
            the July 8, 1987, injury of $245.54 is $6,727.80.  A 50 
 
            percent penalty of this amount of $3,363.90. 
 
            
 
                 Dr. Donohue awarded a 9 percent permanent impairment to 
 
            the right upper extremity for the right shoulder injury and 
 
            surgery on November 8, 1988.  Nine percent of 250 weeks is 
 
            22.5 weeks times the rate for the July 8, 1987, injury of 
 
            $245.54 is $5,524.65 that defendants should have paid 
 
            claimant for the shoulder injury.  A 50 percent penalty of 
 
            $5,524.65 is a penalty of $2,762.33.
 
            
 
                 These penalties, in the total amount of $6,126.23, 
 
            become due on the date of this decision.
 
            
 
                                     interest
 
            
 
                 Claimant is entitled to interest pursuant to Iowa Code 
 
            section 85.30 which provides that interest begins to accrue 
 
            if not paid when due.
 
            
 
                 The agency does not make detailed interest 
 
            calculations.  In a recent decision the industrial 
 
            commissioner stated:
 
            
 
                    There is no provision in the workers' 
 
                 compensation law for "interest on interest."  
 
                 McKeever, above, establishes the date of injury 
 
                 and the interest for any unpaid benefits will be 
 
                 calculated according to the principles enunciated 
 
                 in Teel v. McCord, 394 N.W.2d 405 (1986); 
 
                 Dickenson v. John Deere Prod. Eng., 395 N.W.2d 
 
                 644 (Iowa App. 1986); Farmer's Elevator Co., 
 
                 Kingsley v. Manning, 286 N.W.2d 174 (Iowa 1979); 
 
                 and Benson v. Good Samaritan Center, Ruling on 
 
                 Rehearing, Oct. 18, 1989.
 
            
 
            (Wieshaar v. Snap-On Tools Corporation, file numbers 847903, 
 
            848681, 848682, (app. dec. June 28, 1991).
 
            
 
                          notice-statute of limitations
 
            
 
                 Defendants did not sustain the proof by a preponderance 
 
            of the evidence that claimant failed to give notice as 
 
            required by Iowa Code section 85.23 or to commence a timely 
 
            action as provided Iowa Code section 85.26(1).  
 
            
 
                 With respect to the injury of July 8, 1987, claimant 
 
            had been treated for the cumulative symptoms under the 
 
            supervision of the defendant employer and insurance carrier 
 
            from as early as December 12, 1985.  Defendants, therefore, 
 
            had ample notice of this cumulative injury.  
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
                 With respect to the injury of August 8, 1988, claimant 
 
            reported the injury on that day and defendant employer 
 
            referred claimant for treatment the same day.
 
            
 
                 With respect to the statute of limitations, for the 
 
            injury date of July 8, 1987, the petitions were received in 
 
            the office of the industrial commissioner on April 7, 1989, 
 
            well within the two year limitation period.  
 
            
 
                 With respect to the injury of August 8, 1988, that 
 
            petition too, was received on April 7, 1989, well within the 
 
            two year period of limitation.
 
            
 
                                conclusions of law
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principles of law, these conclusions of law are made:
 
            
 
                 That claimant sustained a cumulative injury to both 
 
            upper extremities and the right shoulder which constitutes 
 
            an injury to the body as a whole on July 8, 1987, which 
 
            arose out of and in the course of employment with employer. 
 
            
 
                 That the injuries alleged to have occurred on August 5, 
 
            1986 (file number 857208); June 3, 1987 (file number 905195) 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            and December 4, 1987 (file number 905916) are incidents 
 
            which are merged with and are a part of the injury which 
 
            occurred on July 8, 1987.
 
            
 
                 That claimant sustained an injury to her back which 
 
            occurred on August 8, 1988, which arose out of and in the 
 
            course of employment with employer.
 
            
 
                 That claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that she sustained an injury 
 
            which occurred on August 26, 1988, to her left arm which 
 
            arose out of and in the course of employment with employer.
 
            
 
                 That claimant did not sustain the burden of proof that 
 
            all of her manifestations of injury are one single 
 
            cumulative injury that occurred on the day before hearing on 
 
            May 14, 1990.
 
            
 
                 That the injury of July 8, 1987, was the cause of both 
 
            temporary and permanent disability.
 
            
 
                 That the injury of August 8, 1988, was the cause of 
 
            temporary disability only and was not the cause of any 
 
            permanent disability.
 
            
 
                 That claimant is entitled to healing period benefits 
 
            for the injury of July 8, 1987, from July 8, 1987 to May 24, 
 
            1988; a period of 45.857 weeks.  
 
            
 
                 That claimant is entitled to temporary total disability 
 
            benefits for the injury of August 8, 1988, from August 12, 
 
            1988 through August 14, 1988; a period of three days, which 
 
            is .429 weeks of temporary disability benefits.
 
            
 
                 That claimant is entitled to temporary partial 
 
            disability for the period from May 24, 1988 to June 18, 
 
            1988.
 
            
 
                 That claimant is not entitled to permanent partial 
 
            disability benefits for the period when she was limited to 
 
            work only eight hours a day.
 
            
 
                 That claimant is entitled to an additional two weeks of 
 
            healing period benefits for the injury of July 8, 1987, from 
 
            September 6, 1988 to September 20, 1988.
 
            
 
                 That claimant is not entitled to workers' compensation 
 
            benefits for the periods of time that she was off work for 
 
            office visits to the doctor.
 
            
 
                 That the injury of July 8, 1987, was the cause of a 20 
 
            percent industrial disability to the body as a whole and 
 
            that claimant is entitled to 100 weeks of permanent partial 
 
            disability benefits.
 
            
 
                 That the rate of compensation for the July 8, 1987, 
 
            injury is $245.54.
 
            
 
                 That the rate of compensation for the August 8, 1988, 
 
            injury is $258.97. 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            
 
                 That claimant is entitled to penalty benefits of 
 
            $3,363.90 and $2,762.33; a total of $6,126.23; for the 
 
            injury of July 8, 1987.
 
            
 
                 That claimant is entitled to interest pursuant to Iowa 
 
            Code section 85.30 and the cases cited above.
 
            
 
                 That defendants failed to sustain the burden of proof 
 
            by a preponderance of the evidence that claimant did not 
 
            give notice pursuant to Iowa Code section 85.23 or commence 
 
            these actions in a timely manner as required by Iowa Code 
 
            section 85.26(1).
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant forty-five point eight 
 
            five seven (45.857) weeks of healing period benefits for the 
 
            injury of July 8, 1987; for the period, July 8, 1987 to May 
 
            24, 1988; at the rate of two hundred forty-five and 54/100 
 
            dollars ($245.54) per week in the total amount of eleven 
 
            thousand two hundred fifty-nine and 73/100 dollars 
 
            ($11,259.73) commencing on July 8, 1987.
 
            
 
                 That defendants pay to claimant an additional two (2) 
 
            weeks of healing period benefits for the injury of July 8, 
 
            1987; for the period from September 6, 1988 to September 20, 
 
            1988; at the rate of two hundred forty-five and 54/100 
 
            dollars ($245.54) per week in the total amount of four 
 
            hundred ninety-one and 08/100 dollars ($491.08) commencing 
 
            on September 6, 1988.
 
            
 
                 That defendants pay to claimant three (3) days (.429 
 
            weeks) of temporary total disability benefits for the injury 
 
            of August 8, 1988; for the period from August 12, 1988 
 
            through August 14, 1988; at the rate of two hundred 
 
            fifty-eight and 97/100 dollars ($258.97) per week in the 
 
            total amount of one hundred eleven and 10/100 dollars 
 
            ($111.10) commencing on August 12, 1988.
 
            
 
                 That defendants pay claimant two hundred ninety-three 
 
            and 33/100 dollars ($293.33) in temporary partial disability 
 
            benefits commencing on May 24, 1988 through June 18, 1988.
 
            
 
                 That defendants pay to claimant one hundred (100) weeks 
 
            of permanent partial disability benefits for a twenty (20) 
 
            percent industrial disability to the body as a whole at the 
 
            rate of two hundred forty-five and 54/100 dollars ($245.54) 
 
            per week in the total amount of twenty-four thousand five 
 
            hundred fifty-four dollars ($24,554) commencing on June 18, 
 
            1988; as interrupted by the one period of temporary total 
 
            disability awarded after June 18, 1988.
 
            
 
                 That defendants pay to claimant six thousand one 
 
            hundred twenty-six and 23/100 dollars ($6,126.23) in penalty 
 
            benefits which become due on the date of this decision.  
 
            
 
                 That defendants are entitled to a credit for all 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            temporary disability benefits paid during or for the above 
 
            periods of time and permanent disability benefits paid to 
 
            claimant prior to hearing at the rate used by defendants at 
 
            the time of payment.
 
            
 
                 That all of these benefits are to be paid in a lump 
 
            sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30.
 
            
 
                 That the costs of this action, including the cost of 
 
            the attendance of the court reporter at hearing and the cost 
 
            of the  transcript, are charged to defendants pursuant to 
 
            rule 343 IAC 4.33 and Iowa Code section 86.19(1).  The costs 
 
            also include claimant's costs in the amount of five hundred 
 
            eleven and 67/100 dollars ($511.67), with the exception of 
 
            the deposition of claimant in the amount of seventy-seven 
 
            and 10/100 dollars ($77.10) which is not an authorized cost, 
 
            but rather a trial preparation expenses (cl. ex. C, pp. 1-7; 
 
            Claimant's posttrial brief pages 23 and 24)
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of September, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Mark Soldat
 
            Attorney at Law
 
            714 E. State St.
 
            Algona, Iowa  50511
 
            
 
            Mr. Paul Thune
 
            Attorney at Law
 
            PO Box 9130
 
            Des Moines, Iowa  50306
 
            
 
 
         
 
         Page   1
 
         
 
                                       51106; 51108.50; 51401; 51402.20; 
 
                                       51402.30; 52201; 52209; 1801.1; 
 
                                       51802; 51801; 1802; 52401; 52402; 
 
                                       52800; 2900; 52903; 52906; 53001; 
 
                                       53002; 53003; 53800; 4002.2; 51803
 
                                       File September 27, 1991
 
                                       Walter R. McManus, Jr.
 
         
 
                           before the iowa industrial 
 
                                   commissioner
 
         ____________________________________________________________
 
                                       :
 
         RUTH A. THILGES,              :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :      File Nos.  857208 894337
 
         SNAP-ON TOOLS CORPORATION,    :        896606 905195 905196
 
                                       :  
 
              Employer,                :     A R B I T R A T I O N
 
              Self-Insured,
 
         and                           :        D E C I S I O N
 
                                       :
 
         ROYAL INSURANCE COMPANY,      :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         51106; 51108.50; 51401; 51402.20; 51402.30; 52201; 52209
 
         Five injuries alleged.  The first three were found to be one 
 
         cumulative injury which affected the upper extremities and the 
 
         shoulder and it was determined to be an injury to the body as a 
 
         whole.  Another injury was found for the back.  A fifth alleged 
 
         injury had no foundation or evidence to support it at all.  
 
         Claimant's contention of several injury manifestations 
 
         culminating in one cumulative injury which occurred on the day 
 
         prior to hearing was rejected.
 
         
 
         1801.1
 
         Temporary partial disability found for one period of time and 
 
         calculations for it are shown in an illustrated calculation.
 
         
 
         51801
 
         A short period of temporary total disability was awarded for the 
 
         back injury.
 
         
 
         1802
 
         Healing period denied for time off work to visit the doctor due 
 
         to lack of specific statutory or case law authority for such an 
 
         award.
 
         
 
         51802
 
         Healing period found for the first and major injury and a 
 
         subsequent period of two weeks was added to it when one of the 
 
         surgical areas flared up several months later.
 
         
 
         51803
 
         Claimant's various ratings converted and combined to 12 percent 
 
         of the body as a whole.  She was permanently restricted from 
 
         repetitive work over chest level with the right upper extremity.  
 

 
         
 
         Page   2
 
         
 
         Claimant was age 43, with a high school education and with four 
 
         surgeries was accommodated greatly by employer and earning more 
 
         at the time of hearing than at that time of injury, however, it 
 
         was found that employer's accommodations would not transfer to 
 
         the competitive labor market.  Claimant awarded 20 percent 
 
         industrial disability.
 
         
 
         53001; 53002; 53003
 
         Two rate calculations are illustrated one for each found injury 
 
         date.  Parties could not agree on injury or injury dates so 
 
         deputy was required to also calculate and find rate for each 
 
         injury.
 
         
 
         4002.2
 
         Defendants were not required to anticipate that a deputy would 
 
         eventually find an injury to the body as a whole.  Defendants 
 
         were not required to anticipate that a deputy might convert and 
 
         combine several upper extremity ratings.  It was found that 
 
         defendants' failure to pay permanent partial disability benefits 
 
         at the time that the ratings were given based on a purely 
 
         functional scheduled member basis without any reasonable cause or 
 
         excuse merited 50 percent penalty benefits.
 
         
 
         53800
 
         Deputy declined to make detailed calculations of interest, but 
 
         cited only Iowa Code section 85.30 and related cases previously 
 
         cited in an appeal decision.
 
         
 
         52401; 52402; 52800
 
         Defendants' allegation of untimely notice and commencement of 
 
         action was without merit based on the dates of injury determined.
 
         
 
         2900; 52903; 52906
 
         Claimant's best medical evaluation excluded because it was 
 
         generated one day after the discovery deadline set by the 
 
         prehearing deputy and it did not meet the service deadline 
 
         prescribed in paragraph seven of the hearing assignment order.
 
         
 
 
        
 
 
 
 
 
        
 
        
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        GREG S. BROWN,
 
        
 
            Claimant,
 
                                                           File No. 
 
        857345
 
        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 INSURANCE,                          MAY 18 1989
 
        
 
            Insurance Carrier,              I0WA INDUSTRIAL 
 
        COMMISSIONER
 
            Defendants.
 
        
 
        
 
                                      INTRODUCTION
 
        
 
             This is an arbitration proceeding brought by Greg D. Brown, 
 
             claimant, against United Parcel Service, employer, and Liberty 
 
             Mutual Insurance Co., insurance carrier, defendants. This case 
 
             was heard by the undersigned on October 19, 1988 in Cedar Rapids, 
 
             Iowa.
 
        
 
            The record consists of the testimony of claimant. The 
 
        record also consists of joint exhibits 1-24 which are admitted, 
 
        and claimant's exhibit P-1.
 
        
 
                                      ISSUES
 
        
 
             As a result of the prehearing report and order submitted and 
 
             approved on October 19, 1988, the issues presented by the parties 
 
             are:
 
        
 
            1. Whether the claimant sustained an injury on June 11, 
 
        1987, which arose out of and in the course of employment with 
 
        employer;
 
        
 
            2. Whether there is a causal relationship between the 
 
        alleged injury and the disability;
 
        
 
            3. Whether claimant is entitled to temporary 
 
        disability/healing period benefits or permanent partial or total 
 
        disability benefits;
 
        
 
            4. Whether claimant is entitled to medical benefits under 
 
        section 85.27.
 
        
 
                                 FACTS PRESENTED
 
        
 
             Claimant is a 34 year old college student. Claimant 
 

 
        
 
 
 
 
 
             testified he has been engaged in weight lifting for some years. 
 
             Currently, claimant works eight hours per week at a fitness 
 
             center. In October of 1978, claimant was hired as a delivery 
 
             driver by defendant for the Christmas season. He was laid off on 
 
             December 24, 1978. However, claimant was called back to work on 
 
             April 9, 1979, as a full time delivery driver. Claimant was 
 
             continuously employed until June of 1987.
 
        
 
            Claimant testified the physical aspects of his position 
 
        involved loading and unloading packages, carrying packages, 
 
        driving a delivery truck, and walking up and down stairs. 
 
        Claimant stated he was required to load packages weighing from 
 
        one ounce to 70 pounds. He also reported there were several 
 
        sizes of trucks to which he was assigned. Claimant described the 
 
        procedures used to stack, load, and deliver packages. He also 
 
        testified that the truck door is similar to a garage door and a 
 
        truck driver is required to lift up on the door in order to open 
 
        it. Claimant also reported he is required to remove packages 
 
        from two shelves on the sides of the truck where he must reach 
 
        and bend over.
 
        
 
            Claimant explained his typical day involved 25 to 35 minutes 
 
        of driving and 140 to 170 stops per day where he was required to 
 
        hop in and out of the truck.
 
        
 
            Claimant described the events of June 11, 1987. He reported 
 
        he had been delivering packages during the morning hours. He had 
 
        made several stops and that around noon he was in the area of 
 
        Globe Machinery. Claimant stated he felt a sharp pain in his 
 
        lower back which radiated down his left leg to his left foot and 
 
        that his left foot felt numb. Claimant indicated the packages he 
 
        delivered on this route were between 35 to 70 pounds.
 
        
 
             Claimant testified he continued working after the June 11th 
 
             date, but the pain still persisted in his left leg and in his 
 
             back on the left side. As a result, claimant stated he took a 
 
             one week vacation. According to claimant's testimony, he felt no 
 
             better after the vacation time and he went to the company 
 
             physician, William Basler, M.D. Claimant indicated he worked 
 
             only one week after his return from vacation.
 
        
 
            The record indicates claimant was referred to James 
 
        LaMorgese, M.D., by Dr. Basler. Later Dr. LaMorgese referred 
 
        claimant to William A. Roberts, M.D., an orthopedic surgeon.
 
        
 
            Dr. Roberts testified by way of deposition. The record 
 
        establishes that claimant was seen by Dr. Roberts on several 
 
        occasions during July of 1987, in August of 1987, and in June of 
 
        1988. Dr. Roberts, in his deposition, determined claimant 
 
        suffered from a developmental abnormality known as 
 
        spondylolisthesis. He further opined the following relative to 
 
        claimant's condition:
 
        
 
             Q. Doctor, I want to ask you some opinions regarding Mr. 
 
                  Brown's condition, and I'd like these to be stated in 
 
                  terms of -- so you understand, I'm asking this in terms 
 
                  to a reasonable degree of medical probability; is that 
 
                  understandable?
 
             
 
             A. I'll do what I can.
 
             
 
             Q. All right. Do you have an opinion as to whether or not 
 
                  the condition that you diagnosed and the resulting 
 
                  symptomatology were related to the physical activities 
 
                  that were associated with Mr. Brown's work?
 
             
 

 
        
 
 
 
 
 
             A. I would say that his work was an aggravating factor, 
 
                  yes.
 
             
 
             Q. Do you have an opinion whether the symptoms and 
 
                  complaints that Mr. Brown talked to you about and 
 
                  demonstrated were consistent with his diagnosis and 
 
                  condition?
 
             
 
             A. I believe they were, yes.
 
             
 
             Q. Has Mr. Brown sustained a permanent partial impairment 
 
                  to the body as a whole?
 
             
 
             A. He has.
 
             
 
             Q. And would you relate that permanent physical impairment, 
 
                  or do you relate the permanent physical impairment to 
 
                  his physical activities associated with work?
 
             
 
             A. Yes.
 
             
 
             Q. And what is the extent of the permanent physical 
 
                  impairment numerically?
 
             
 
             A. This was found in my note on the 9th of June 1988. His 
 
                  impairment rating as of my evaluation on that date was 
 
                  17 percent.
 
             
 
             Q. And that was the body.as a whole?
 
             
 
             A. Correct.
 
        
 
             Q. Throughout your -- or maybe not say throughout your care 
 
                  and treatment maybe, but at the time you gave the 
 
                  opinion as to the permanent physical impairment, were 
 
                  you aware that Mr. Brown had had previous back problems 
 
                  or incidents at work relating to his back?
 
             
 
             A. You mean in regard to the 9th of June? Is that what you 
 
                  --
 
             
 
             Q. Right. I'm asking at the time you gave your opinion as 
 
                  to the 17 percent, were you aware that Mr. Brown had had 
 
                  previous back problems associated with work or back 
 
                  incidents?
 
             
 
             A. Prior to my initial evaluation of him?
 
             
 
             Q. Yes.
 
             
 
             A. I don't recall if I was aware at that time or not.
 
             
 
             Q. Were you aware at the time you gave your opinion of 17 
 
                  percent?
 
             
 
             A. Yes.
 
             
 
             Q. And did you have in your possession and for review the 
 
                  records of Dr. Basler?
 
             
 
             A. Yes.
 
             
 
             Q. And had you reviewed those records?
 
             
 
             A. Yes.
 
             
 

 
        
 
 
 
 
 
             Q. And a review of those records and the fact that there 
 
                  are some indications of prior back problems, did that 
 
                  effect your opinion?
 
             
 
             A. No. My impairment is based strictly upon their physical 
 
                  capabilities at the time of evaluation.
 
             
 
        (Joint Exhibit 14, page 16, line 1 to page 18, line 14).
 
        
 
             Later in his deposition, Dr. Roberts determined claimant's 
 
             weight lifting activity had very little impact on claimant's 
 
             claimed disability. Dr. Roberts also indicated in his deposition 
 
             that claimant was a surgical candidate. However, Dr. Roberts 
 
             maintained a decision to have surgery should rest with a patient 
 
             and not with the surgeon.
 
        
 
             The record additionally indicates claimant was also 
 
             evaluated by R. F. Neiman, M.D., on April 11, 1988. Dr. Neiman 
 
             is a specialist in neurology. In a report dated April 11, 1988, 
 
             Dr. Neiman wrote:
 
        
 
             IMPRESSION: This is an abnormal EMG study with evidence of 
 
             denervation bilaterally, quite active on the left side 
 
             involving the left greater than the right, L5 nerve root.
 
             
 
             RECOMMENDATIONS: I think frankly that the gentleman is a 
 
             surgical candidate. He probably deserves effusion and 
 
             cleaning out of the L4-5 space to free up the L5 nerve root. 
 
             I suggest that we show the x-rays [sic] to Dr. Law and see 
 
             what he thinks about this condition. EMG studies have 
 
             remarkably changed. I have no question that he did have a 
 
             previous congenital defect at L4-5 that has worsened with 
 
             his lifting being the major factor producing his current 
 
             symptoms. He certainly can never go back to this type of 
 
             work. The level of disability for this degree of impairment 
 
             I think is quite low. I suspect he would run around 25% 
 
             impairment of the whole person. Industrial restrictions 
 
             would be that of avoidance of excessive flexion, extension 
 
             and rotation of the back. Lifting more than 35 lbs. would 
 
             be contraproductive. Likewise sitting [sic] or riding more 
 
             than 2 hours at a time probably would not be helpful. I 
 
             will let you know as to our opinion regarding the 
 
             possibility of a more aggressive approach. If you have any 
 
             particular questions regarding this dictation please advise.
 
             
 
                                 APPLICABLE LAW
 
        
 
             An employee is entitled to compensation for any and all 
 
             personal injuries which arise out of and in the course of the 
 
             employment. Section 85.3(1).
 
        
 
            Claimant has the burden of proving by a preponderance of the 
 
        evidence that he received an injury on June 11, 1987 which arose 
 
        out of and in the course of his employment. McDowell v. Town of 
 
        Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central 
 
        Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
        
 
            The injury must both arise out of and be in the course of 
 
        the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
        402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
        Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 
 
        255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
        249 Iowa 1147, 91 N.W.2d 555 (1958).
 
        
 
             The words "out of" refer to the cause or source of the 
 
             injury. Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955).
 

 
        
 
 
 
 
 
        
 
            The words "in the course of" refer to the time and place and 
 
        circumstances of the injury. McClure v. Union et al. Counties, 
 
        188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63 
 
        (1955).
 
        
 
            "An injury occurs in the course of the employment when it is 
 
        within the period of employment at a place the employee may 
 
        reasonably be, and while he is doing his work or something 
 
        incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
        N.W.2d 298 (Iowa 1979); McClure, 188 N.W.2d 283 (Iowa 1971); 
 
        Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967).
 
        
 
            The supreme court of Iowa in Almquist v. Shenandoah 
 
        Nurseries, 218 Iowa 724, 254 N.W. 35 (1934) at 731-32, discussed 
 
        the definition of personal injury in workers' compensation cases 
 
        as follows:
 
        
 
             While a personal injury does not include an occupational 
 
             disease under the workmen's Compensation Act, yet an injury 
 
             to the health may be a personal injury [Citations omitted.] 
 
             Likewise a personal injury includes a disease resulting from 
 
             an injury....The result of changes in the human body 
 
             incident to the general processes of nature do not amount to 
 
             a personal injury. This must follow, even though such 
 
             natural change may come about because the life has been 
 
             devoted to labor and hard work. Such result of those 
 
             natural changes does not constitute a personal injury even 
 
             though the same brings about impairment of health or the 
 
             total or partial incapacity of the functions of the human 
 
             body.
 
             
 
               ....
 
             
 
             A personal injury, contemplated by the Workmen's 
 
             Compensation Law, obviously means an injury to the body, the 
 
             impairment of health, or a disease, not excluded by the act, 
 
             which comes about, not through the natural building up and 
 
             tearing down of the human body, but because of a traumatic 
 
             or other hurt or damage to the health or body of an 
 
             employee. [Citations omitted.] The injury to the human 
 
             body here contemplated must be something, whether an 
 
             accident or not, that acts extraneously to the natural 
 
             processes of nature and thereby impairs the health, 
 
             overcomes, injures, interrupts, or destroys some function of 
 
             the body, or otherwise damages or.injures a part or all of 
 
             the body.
 
        
 
             The "cumulative injury rule" may apply when disability 
 
             develops over a period of time. The compensable injury is held 
 
             to occur at the later time. For time limitation purposes, the 
 
             injury in such cases occurs when, because of pain or physical 
 
             disability, the claimant can no longer work. McKeever Custom 
 
             Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).
 
        
 
            A petition for arbitration may state a claim in general 
 
        terms, and technical or formal rules of procedure need not be 
 
        observed. Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38 
 
        N.W.2d 161 (1949).
 
        
 
            A claimant is not prohibited from receiving an award based 
 
        on a cumulative injury where the claimant did not plead a 
 
        cumulative injury theory, or advance a cumulative injury theory 
 
        at the time of prehearing or at the hearing. Martha McCoy v. 
 
        Donaldson Company, Inc., Appeal Decision filed May, 1989, File 
 
        Nos. 752670, 805200).
 

 
        
 
 
 
 
 
        
 
            The claimant has the burden of proving by a preponderance of 
 
        the evidence that the injury of June 11, 1987 is causally related 
 
        to the disability on which he now bases his claim. Bodish v. 
 
        Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
        L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is 
 
        insufficient; a probability is necessary. Burt v. John Deere 
 
        Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The 
 
        question of causal connection is essentially within the domain of 
 
        expert testimony. Bradshaw v. Iowa Methodist 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 Hardware, 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).
 
        
 
            While a claimant is not entitled to compensation for the 
 
        results of a preexisting injury or disease, the mere existence at 
 
        the time of a subsequent injury is not a defense. Rose v. John 
 
        Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756, (1956). 
 
        If the claimant had a preexisting condition or disability that is 
 
        aggravated, accelerated, worsened or lighted up so that it 
 
        results in disability, claimant is entitled to recover. Nicks v 
 
        Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, (1962).
 
        
 
             When an aggravation occurs in the performance of an 
 
             employer's work and a causal connection is established, claimant 
 
             may recover to the extent of the impairment . Ziegler v. United 
 
             States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, (1960).
 
        
 
            The Iowa Supreme Court cites, apparently with approval, the 
 
        C.J.S. statement that the aggravation should be material if it is 
 
        to be compensable. Yeager v. Firestone Tire & Rubber Co., 253 
 
        Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's 
 
        Compensation section 555(17)a.
 
        
 
            Our supreme court has stated many times that a claimant may 
 
        recover for a work connected aggravation of a preexisting 
 
        condition. Almquist, 218 Iowa 724, 254 N.W. 35 (1934). See also 
 
        Auxier v. Woodward State Hospital 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).
 
        
 
            If a claimant contends he has industrial disability he has 
 
        the burden of proving his injury results in an ailment extending 
 
        beyond the scheduled loss. Kellogg v. Shute and Lewis Coal Co., 
 
        256 Iowa 1257, 130 N.W.2d 667 (1964).
 
        
 
            Functional impairment is an element to be considered in 
 
        determining industrial disability which is the reduction of 
 
        earning capacity, but consideration must also be given to the 
 
        injured employee's age, education, qualifications, experience and 
 
        inability to engage in employment for which he is fitted. Olson, 
 
        255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 
 
        253 Iowa 285, 110 N.W.2d 660 (1961).
 
        
 
            A finding of impairment to the body as a whole found by a 
 
        medical evaluator does not equate to industrial disability. This 
 
        is so as impairment and disability are not synonymous. Degree of 
 
        industrial disability can in fact be much different than the 
 
        degree of impairment because in the first instance reference is 
 
        to loss of earning capacity and in the latter to anatomical or 
 
        functional abnormality or loss. Although loss of function is to 
 
        be considered and disability can rarely be found without it, it 
 
        is not so that a degree of industrial disability is 
 
        proportionally related to a degree of impairment of bodily 
 
        function.
 
        
 
             Factors to be considered in determining industrial 
 
             disability include the employee's medical condition prior to the 
 
             injury, immediately after the injury, and presently; the situs of 
 
             the injury, its severity and the length of healing period; the 
 
             work experience of the employee prior to the injury, after the 
 
             injury and potential for rehabilitation; the employee's 
 
             qualifications intellectually, emotionally and physically; 
 
             earnings prior and subsequent to the injury; age; education; 
 
             motivation; functional impairment as a result of the injury; and 
 
             inability because of the injury to engage in employment for which 
 
             the employee is fitted. Loss of earnings caused by a job transfer 
 
             for reasons related to the injury is also relevant. These are 
 
             matters which the finder of fact considers collectively in 
 
             arriving at the determination of the degree of industrial 
 
             disability.
 
        
 
            There are no weighting guidelines that indicate how each of 
 
        the factors are to be considered. There are no guidelines which 
 
        give, for example, age a weighted value of ten percent of the 
 
        total value, education a value of fifteen percent of 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 disability. 
 
        See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
        February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
        March 26, 1985).
 
        
 
            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).
 
        
 
                                      ANALYSIS
 

 
        
 
 
 
 
 
        
 
             Claimant has established he sustained an injury which arose 
 
             out of and in the course of his employment. Claimant has also 
 
             established that his injury is causally related to claimant's 
 
             condition. There is claimant's uncontroverted testimony that he 
 
             felt pain in his back and down his left leg after a morning of 
 
             delivering unusually heavy packages. This event occurred while 
 
             claimant was performing services on behalf of his employer. The 
 
             incident happened while claimant was on his prescribed trucking 
 
             route. Claimant sought medical attention on June 13, 1987.
 
        
 
             There is also evidence to establish that claimant's injury 
 
             was cumulative or gradual in nature. Records for defendant 
 
             employer indicate claimant had back problems on four other 
 
             occasions as a result of work injuries. Then there is the 
 
             clinical resume prepared by Dr. LaMorgese, the company physician. 
 
             His history supports a gradual injury for over a year. He writes 
 
             in his report of July 1, 1987:
 
        
 
            ADMISSION DATE: 07/01/87
 
        
 
             CHIEF COMPLAINT:
 
        
 
            Low back and left leg pain.
 
        
 
            HISTORY OF PRESENT ILLNESS:
 
        
 
             This is a 32-year-old right-handed white male who for one 
 
             year has had intermittent pain and numbness in the left leg. 
 
             He states that around ten or eleven o'clock each morning 
 
             while he is at work he will start noticing pain traveling 
 
             down the back into the left leg. He has noted numbness on 
 
             the top of his left foot. He has had quite a lot of 
 
             increased pain recently. Initially chiropractic treatments 
 
             helped but at this time they are not relieving him of his 
 
             pain. He has tried anti-inflammatory agents without relief 
 
             of his symptoms. Lumbosacral spine films reveal six lumbar 
 
             vertebra with a spondylolisthesis at the L5-6 area. The 
 
             patient had CT scan of the low back. The CT scan revealed 
 
             bilaterally spondylolysis with slip at the L5-6 area. There 
 
             was proliferation of spurs at the level of the slip more on 
 
             the right than the left. There was no direct evidence of 
 
             disc herniation. He was admitted for lumbar myelography and 
 
             EMG nerve conduction studies with CT scanning to follow the 
 
             myelogram.
 
        
 
               ....
 
        
 
             FINAL DIAGNOSIS:
 
             
 
             Lumbar radiculopathy on the left with spondylolisthesis at 
 
             the L5-6 area.
 
        
 
             Next there is the testimony of Dr. Roberts. His opinion 
 
             also supports a cumulative injury theory as a result of 
 
             claimant's work situation. Dr. Roberts has ascertained claimant 
 
             experienced an accumulative injury pattern while claimant was 
 
             engaged in his work activities, since claimant was required to 
 
             drive a truck every day and since he was also engaged in 
 
             repetitive bending and lifting. Dr. Roberts explained that 
 
             claimant's condition and resulting symptomatology were associated 
 
             with the physical requirements of claimant's job. In Dr. 
 
             Roberts' opinion the work situation was an aggravating factor. 
 
             Dr. Roberts has testified:
 
        
 
             Q. In the second paragraph, you indicate that, recognizing 
 

 
        
 
 
 
 
 
                  that his job required repetitive bending and lifting as 
 
                  well as a significant amount of driving in a vehicle 
 
                  each day, it's reasonable to believe each day the 
 
                  patient had accumulative injury pattern." [sic]
 
             
 
             A. That is correct.
 
             
 
             Q. What's your understanding when you indicate accumulative 
 
                  injury pattern?
 
             
 
             A. What that means is that repetitive stress, over time, 
 
                  will lead to intervertebral instability and subsequent 
 
                  pain.
 
             
 
             Q. Is there anything that you find significant in 
 
                  relationship to the job description that you were 
 
                  provided relative to this type of accumulative injury 
 
                  pattern?
 
             
 
             A. The factors that I believe of significance are driving. 
 
                  It has been reported that driving more than 30 to 45 
 
                  minutes per day can aggravate an individual's low back 
 
                  pain whether it's from spondylolisthesis or not.
 
             
 
                       In addition, activity requiring repetitive bending 
 
                               and lifting -- I noted in here he is supposed to be able 
 
                               to handle 200 packages a day with a maximum weight of 70 
 
                               pounds each. That would be considered to be an 
 
                               aggravating factor. So the prolonged sitting in the 
 
                               vehicle and lifting and carrying, as provided in the job 
 
                               description, I believe are aggravating factors.
 
                  
 
             Q. All right. You have referred to part of his condition as 
 
                  being spondylolisthesis, and that could be considered a 
 
                  pre-existing condition, could it not?
 
        
 
             A. Yes, sir.
 
             
 
             Q. Does that -- does his pre-existing condition have any 
 
                  effect or significance relative to the impairment rating 
 
                  that you have provided?
 
             
 
             A. No, sir.
 
             
 
        (Ex. 14, p. 18, 1. 18 to p. 20, 1. 6).
 
        
 
             Dr. Roberts has opined that any permanent physical 
 
             impairment of claimant is related to the physical activities of 
 
             claimant's work activities. Claimant has met his burden of 
 
             providing the requisite causal connection.
 
        
 
            The third issue to address is the nature and extent of 
 
        claimant's disability. The parties stipulated in the prehearing 
 
        report that if defendants were found liable for benefits, then 
 
        the healing period would be stipulated to be from June 29, 1987 
 
        to December 1, 1987.
 
        
 
            With respect to the issue of permanent partial disability, 
 
        it is noted that two physicians have provided functional 
 
        impairment ratings. Originally, Dr. Roberts determined claimant 
 
        sustained a five percent functional impairment. Dr. Roberts 
 
        later changed the rating to 17 percent. The basis for his 
 
        decision was stated in his deposition. He opined: "The 
 
        differential of 12 percent is the reflection of weakness in his 
 
        lower extremity now which I felt was not functionally limiting at 
 
        the time of the initial evaluation." (Ex. 14, p. 22, 11. 10-13)
 

 
        
 
 
 
 
 
        
 
            Dr. Neiman, a neurologist, also evaluated claimant. He 
 
        opined in his report of April 11, 1988, that claimant had a 
 
        functional impairment of 25 percent. However, Dr. Neiman was not 
 
        the treating physician. He only saw claimant on one occasion and 
 
        that was for the purpose of evaluation. Dr. Roberts was the 
 
        treating physician. He had begun treating claimant about a month 
 
        after the injury. Greater weight is accorded to the opinion of 
 
        Dr. Roberts. See: Reiland v. Palco, Inc., Thirty-Second 
 
        Biennial Report of the Industrial Commissioner 56 (1975); Dickey 
 
        v. ITT Continental Baking Company, Thirty-Fourth Biennial Report 
 
        of the Industrial Commissioner 89 (1979). The undersigned finds 
 
        that claimant has a functional impairment of 17 percent due to 
 
        claimant's gradual injury. Claimant did not seek medical 
 
        attention for his back from August of 1987 until December of 
 
        1987. Claimant is still able to complete his same basic work-out 
 
        routine at the fitness center where he is a member. Since March 
 
        of 1988, claimant has worked out four times per week. He uses 
 
        various free weights to complete his routine. While claimant has 
 
        modified his routine, he is still able to maintain continuous 
 
        activity.
 
        
 
             Claimant argues he has a loss of earning capacity as a 
 
             result of his injury. At the time of his injury, claimant was 
 
             earning $16.14 per hour. He testified he was working five days 
 
             per week for nine or nine and one-half hours per day prior to the 
 
             injury date.
 
        
 
            Claimant has provided a list of approximately 44 businesses 
 
        where he has submitted job applications since December of 1987. 
 
        Most of the businesses have been involved in the area of fitness. 
 
        Since claimant's last day of work as a truck driver, he has 
 
        worked as a security guard at two concerts at the Five Seasons 
 
        Center, and he has also worked as a bartender for one month.
 
        
 
            Currently, claimant is employed on a part-time basis at a 
 
        fitness center in Cedar Rapids, Iowa. Claimant works 
 
        approximately eight hours per week at the minimum wage rate. His 
 
        job duties include supervising the free weight area, helping 
 
        members with their fitness programs, cleaning and doing general 
 
        maintenance around the premises.
 
        
 
            Claimant is also taking college classes at the University of 
 
        Iowa. He is enrolled on a full time basis in the physical 
 
        education program. Claimant drives from Cedar Rapids to Iowa 
 
        City three days per week. Claimant has had four years of college 
 
        but he needs another year after the present one in order to 
 
        receive his degree. Claimant has indicated a desire to work in 
 
        the fitness field after graduation, although it is speculative 
 
        what the job market will be if claimant graduates. It is 
 
        likewise unknown what salary ranges can be anticipated upon 
 
        claimant's graduation.
 
        
 
             The undersigned finds claimant has sustained an industrial 
 
             disability. Claimant is unable to return to his position as a 
 
             truck driver due to his work injury. Dr. Roberts has restricted 
 
             claimant from driving or riding in a motorized vehicle for more 
 
             than one or two hours per day. Claimant is also restricted with 
 
             respect to repetitive bending, stooping or reaching, and he is 
 
             not to lift more than 50 pounds.
 
        
 
            Claimant has sought other employment. He has applied at 
 
        numerous establishments. It is not clear claimant has been 
 
        refused employment because of his back condition. Nevertheless, 
 
        it is evident claimant has endeavored to secure employment. 
 
        Claimant is still seeking to rehabilitate himself by returning to 
 

 
        
 
 
 
 
 
        college. There is little indication whether future employment, 
 
        upon graduation, will result in a loss of earnings or a loss of 
 
        earning capacity. Likewise, there is little indication whether 
 
        future employment, upon graduation, will result in greater 
 
        earnings or an increased earning capacity.
 
        
 
             Therefore, in light of the foregoing, it is the decision of 
 
             the undersigned that claimant, as a result of this work related 
 
             injury, has an industrial disability of 22 percent.
 
        
 
            The final issue to address is whether claimant is entitled 
 
        to medical benefits under section 85.27. The parties, in the 
 
        prehearing report, stipulated that:
 
        
 
            l) The provider of the services would testify that the fees 
 
        were reasonable;
 
        
 
            2) The provider of the services would testify that the 
 
        treatment was reasonable and necessary treatment of the alleged 
 
        work injury; and,
 
        
 
            3) The causal connection of the expenses to treatment for a 
 
        medical condition upon which claimant is now basing his claim is 
 
        admitted but that the causal connection of the condition to a 
 
        work injury remains an issue to be decided.
 
        
 
            Claimant has established that $745.66 is due for unpaid 
 
        medical expenses and $49.14 is due to claimant for mileage. 
 
        These expenditures are covered under section 85.27.
 
        
 
                       FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
        
 
             WHEREFORE, based on the evidence presented and the 
 
             principles of law previously stated, the following findings of 
 
             fact and conclusions of law are made:
 
        
 
            FINDING 1. Claimant sustained a back injury arising out of 
 
        and in the course of his employment on June 11, 1987.
 
        
 
            FINDING 2. Claimant's back injury was gradual in nature.
 
        
 
            FINDING 3. As a result of the injury on June 11, 1987, 
 
        claimant has an attributable functional impairment of 17 percent 
 
        of the body as a whole.
 
        
 
            FINDING 4. Claimant was unable to continue his employment 
 
        with defendant.
 
        
 
            FINDING 5. Claimant is currently enrolled at the University 
 
        of Iowa on a full time basis.
 
        
 
            FINDING 6. Claimant is employed part-time at a fitness 
 
        center.
 
        
 
            CONCLUSION A. Claimant has met his burden of proving he has 
 
        a 22 percent permanent partial disability attributable to his 
 
        work injury on June 11, 1987.
 
        
 
             FINDING 7. Claimant has incurred medical expenses and 
 
             mileage as a result of his work injury on June 11, 1987.
 
        
 
            CONCLUSION B. Medical expenses in the sum of $745.66 and 
 
        mileage in the sum of $49.14 are due under section 85.27.
 
        
 
                                      ORDER
 
        
 

 
        
 
 
 
 
 
             THEREFORE, defendants are to pay unto claimant one hundred 
 
             ten (110) weeks of permanent partial disability benefits at the 
 
             stipulated rate of three hundred sixty-four and 71/100 dollars 
 
             ($364.71) per week.
 
        
 
            Defendants are to pay unto claimant twenty-three (23) weeks 
 
        of healing period benefits at the stipulated rate of three 
 
        hundred sixty-four and 71/100 dollars ($364.71) per week.
 
        
 
            Payments that have accrued shall be paid in a lump sum 
 
        together with statutory interest thereon pursuant to Iowa code 
 
        section 85.30.
 
        
 
            Defendants are to pay unpaid medical expenses as follows:
 
        
 
                       IMC P.C.                $227.60
 
                       Dr. R. F. Neiman          95.00
 
                       Mercy Hospital           141.00
 
                       
 
                             Total           $463.60
 
        
 
             Defendants are to pay unto claimant for reimbursable medical 
 
             expenses as follows:
 
        
 
                     St. Luke's Hospital     $ 62.26
 
                     Assoc. Pathologists, P.C.  8.40
 
                     C. R. Radiologist, P.C.   21.40
 
                     Dr. LaMorgese            145.00
 
        
 
                     mileage 234 miles x .21 = 49.14
 
        
 
                              Total          $286.20
 
        
 
             Defendants are to be given credit for any benefits 
 
             previously paid to claimant.
 
        
 
            Section 86.13 is a bifurcated issue.
 
        
 
            Costs are assessed against defendants pursuant to Division 
 
        of Industrial Services Rule 343-4.33 including:
 
        
 
                     1. Certified mailings          $ 3.34
 
                     2. Dr. Roberts' report          58.00
 
                     3. Greg Brown's deposition
 
                           transcription              67.90
 
                     4. Office notes & records
 
                           copy costs                 27.70
 
                       5. Dr. Roberts' witness fee    150.00
 
                       6. Court Reporter's fee for
 
                            Roberts' deposition       115.10
 
                       
 
             Defendants shall file a claim activity report upon payment 
 
             of this award.
 
        
 
                                      
 
             Signed and filed this 18th day of May, 1989.
 
             
 
             
 
             
 
             
 
             
 
                                     MICHELLE A. McGOVERN
 
                                     DEPUTY INDUSTRIAL COMMISSIONER
 
        
 
        Copies To:
 
        
 

 
        
 
 
 
 
 
        Mr. Thomas M. Wertz
 
        Attorney at Law
 
        4089 21st Ave. SW
 
        Suite 114
 
        Cedar Rapids, Iowa 52404
 
        
 
        Mr. Ralph W. Gearhart
 
        Attorney at Law
 
        500 MNB Bldg.
 
        P. 0. Box 2107
 
        Cedar Rapids, Iowa 52406
 
        
 
        
 
 
        
 
 
 
 
 
        
 
        
 
        
 
        
 
                                                 51803
 
                                                 Filed May 18, 1989
 
                                                 MICHELLE A. McGOVERN
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        GREG S. BROWN,
 
        
 
            Claimant,
 
                                              File No. 857345
 
        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
 
        
 
        LIBERTY MUTUAL INSURANCE,
 
        
 
             Insurance Carrier,
 
             Defendants.
 
             
 
             
 
             
 
        51803
 
        
 
             Claimant sustained a back injury on the job while he was 
 
             delivering packages. Claimant returned to college rather than to 
 
             his job as a truck driver. Claimant sustained a 22 percent 
 
             permanent partial disability.
 
             
 
        
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         OTTO B. KRUG, JR.,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 File No. 857440
 
         COVENANT MEDICAL CENTER, INC.,:
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         ALEXSIS RISK MANAGEMENT,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Otto B. Krug, 
 
         Jr., against his former employer, Covenant Medical Center, Inc.  
 
         The case was heard and fully submitted at Waterloo, Iowa on April 
 
         21, 1989.  The record in the proceeding consists of testimony 
 
         from Otto B. Krug, Jr., and Shirley Krug.  The record also 
 
         contains claimant's exhibits 1, 2, 3, 4 and 5.  Exhibits 1 and 2 
 
         are subdivided into subparts.
 
         
 
                                      ISSUES
 
         
 
              Claimant alleges that he sustained an injury on February 4, 
 
         1987 when he was struck on the top of his head by a chain and 
 
         chain hoist.  The employer and its insurance carrier failed to 
 
         file an answer within the time ordered by this agency.  As a 
 
         sanction for such failure to comply,.the employer and its 
 
         insurance carrier were prohibited from participating further in 
 
         the proceeding.
 
         
 
              In view of the prohibition against participation, there are 
 
         no stipulations and all issues must be proven by the claimant.  
 
         The issues which exist are therefore: .Determination of the 
 
         existence of an employer-employee
 
         relationship; whether an injury occurred which arose out of and 
 
         in the course of employment; determination of causation between 
 
         the injury and any disability or expenses; determination of the 
 
         claimant's entitlement to weekly
 
         
 
         
 
         
 
         KRUG v. COVENANT MEDICAL CENTER, INC.
 
         Page 2
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         compensation for temporary total disability, healing period, 
 
         permanent partial disability or permanent total disability; and, 
 
         determination of the rate of compensation.  Since defendants' 
 
         evidence and participation was cut off, there are no defenses.
 
         
 
                               SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Only the evidence most pertinent to this decision is 
 
         discussed, but all of the evidence received at the hearing was 
 
         considered in arriving at this decision. Conclusions about what 
 
         the evidence showed are inevitable with any summarization.  The 
 
         conclusions in the following summary should be considered to be 
 
         preliminary findings of fact.
 
         
 
              Otto B. Krug, Jr., is a 56-year-old married man who lives at 
 
         Cedar Falls, Iowa.  His wife is Shirley Krug.
 
         
 
              Claimant exhibited a speech defect and wore a cervical 
 
         collar at the hearing.  He stated that he had completed the 
 
         twelfth grade in 1952, but had difficulty with reading and 
 
         spelling.  He stated that he was unable to pronounce some words.  
 
         He felt that he performed adequately in math.
 
         
 
              After high school, claimant worked at John Deere for a time, 
 
         but then left and worked as a farmhand for approximately 15 
 
         years.  He went to California and worked on an avocado ranch for 
 
         three years.  He then returned to Iowa and farmed for 
 
         approximately six years.  In 1978, claimant ceased farming and 
 
         obtained a job at Schoitz Hospital, which changed its name to 
 
         Covenant Medical Center, Inc.
 
         
 
              At the hospital, claimant worked in the maintenance 
 
         department doing whatever needed to be done.  He stated that he 
 
         had no problem performing that job or any of the prior jobs which 
 
         he had held.  Claimant stated that he liked the job.
 
         
 
              Claimant testified that on February 4, 1987 he was using a 
 
         chain hoist to pull a 600-pound pump motor.  He stated that the 
 
         hoist pulled loose from the ceiling and fell approximately 12 
 
         feet striking him on the head.  Claimant stated that the hoist 
 
         weighed 48 pounds.  Claimant went to the hospital emergency room 
 
         where he was treated.  Claimant was examined, but the only 
 
         identifiable injuries were two lacerations of approximately three 
 
         centimeters each in length on the top of his head.  The only 
 
         complaint shown by the records was a headache at the site of 
 
         those lacerations.  The records indicate that claimant denied any 
 
         symptoms such
 
         
 
         
 
         
 
         KRUG v. COVENANT MEDICAL CENTER, INC.
 
         Page 3
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         as neck pain, diplopia, blurry vision, lightheadedness or loss of 
 
         consciousness.  X-rays of claimant's skull were negative.  X-rays 
 
         of his cervical spine showed narrowed third and sixth disc spaces 
 
         with hypertrophic changes.  When the sutures were subsequently 
 
         removed on February 9, 1987, claimant denied having any problems 
 
         (exhibit 2, tab Q, pages 470-472). On April 27, 1987, a CT scan 
 
         of claimant's head was performed.  The results were interpreted 
 
         as being negative (exhibit 2, tab Q, page 474).
 
         
 
              Following the incident that occurred on February 4, 1987, 
 
         claimant continued to perform the duties of his employment at 
 
         Covenant Medical Center, Inc.
 
         
 
              On April 24, 1987, claimant sought medical treatment from 
 
         Ronald R. Roth, M.D. Dr. Roth's office notes indicate a history 
 
         consistent with the injurious event of which claimant testified 
 
         at hearing.  The complaints which are reported include diffuse 
 
         pain.  The reports state, "The pain is diffuse nad [sic) on top 
 
         of the head and similar to the day it happened.  At times comes 
 
         and goes and occurs 1 time a wake [sic].  He has well healed scar 
 
         in a V-shape about 3 cm. each arm of the V, top of the head." 
 
         (Exhibit 2, tab E, pages 279-280) Dr. Roth ordered a CT scan of 
 
         the head which was negative.  He referred claimant to A. K. 
 
         Nakhasi,  M.D., and also to David Poe, M.D., and to Robert L. 
 
         Bedard, L.P.T. Dr. Poe found no abnormalities on his examination, 
 
         other than limited motion of the cervical spine.  On August 21, 
 
         1987, Dr. Poe indicated that claimant was fit for light-duty work 
 
         and with proper rehabilitation might be a candidate for full duty 
 
         (exhibit 2, tab I, page 381).
 
         
 
              Claimant received physical therapy from Bedard commencing 
 
         May 28, 1987 and running through 1988.  Throughout the course of 
 
         treatment, claimant indicated general improvement of his symptoms 
 
         and on August  24,  1988, Bedard reported that it appeared that 
 
         claimant's recovery had hit a plateau and that claimant's 
 
         discomfort would be chronic (exhibit 2, tab D, pages 222-269). 
 
         Throughout the course of treatment, Bedard referred to claimant's 
 
         condition as a neck strain, muscle strain, post-concussion 
 
         syndrome, cervical spine strain, cervical compression syndrome or 
 
         variations of those conditions.  On July 13, 1987, Dr. Roth 
 
         authorized claimant to be taken off work for three weeks (exhibit 
 
         2, tab E, page 282).
 
         
 
              Claimant has not since made a successful return to any type 
 
         of work.  He was released to return to restricted light work in 
 
         early 1988, but none was made available to him (exhibit 2, tab E, 
 
         pages 285 and 286).  Claimant was then released to return to work 
 
         without restrictions on February
 
         
 
         
 
         
 
         KRUG v. COVENANT MEDICAL CENTER, INC.
 
         Page 4
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         15, 1988.  Claimant worked February 16, 1988.  He stated that his 
 
         employer assigned him to perform work which required drilling 
 
         overhead while standing on a ladder.  Claimant stated that the 
 
         work aggravated his condition (exhibit 2, tab A, pages 101, 102, 
 
         117 and 118).
 
         
 
              Claimant was seen by orthopaedic surgeon James E. Crouse, 
 
         M.D., on June 16, 1987.  Dr. Crouse diagnosed claimant as having 
 
         a cervical sprain with cervical spondylosis.
 
         
 
              Dr. Nakhasi conducted nerve conduction velocity and 
 
         electromyography studies on December 28, 1987.  The studies were 
 
         interpreted as being normal.  Dr. Nakhasi stated that claimant 
 
         had no cervical radiculopathy. When conducting  his physical 
 
         examination, Dr. Nakhasi found no focal motor or sensory 
 
         deficits.  He stated that claimant should be able to return to 
 
         his normal work and function.
 
         
 
              X-rays taken June 26, 1987 of claimant's cervical spine 
 
         showed minimal changes to have occurred since 1981 when claimant 
 
         sustained a cervical spine injury in an automobile accident 
 
         (exhibit 2, tab Q, page 476).
 
         
 
              Claimant underwent neuropsychological testing under the 
 
         direction of John D. Bayless, Ph.D., a licensed psychologist.  
 
         Bayless felt that claimant had a moderate to severe developmental 
 
         learning disability affecting reading and spelling skills.  He 
 
         nevertheless found claimant to have average intellectual 
 
         functioning with some verbal deficits.  Bayless found no evidence 
 
         of cognitive deficits referable to central nervous system disease 
 
         and no evidence of partial complex seizures.  Bayless noted that 
 
         should claimant's pain render him unable to resume physical work, 
 
         the reading and spelling deficits would render him essentially 
 
         unemployable (exhibit 2, tab B, pages 125 and 126).  Bayless 
 
         noted that according to claimant, his learning disability had 
 
         been life-long and was not affected by this accident.
 
         
 
              Claimant was also evaluated by psychologist Ralph Scott, 
 
         Ph.D. Scott indicated that claimant suffered from organic 
 
         impairment as shown by claimant's severe problems in expressive 
 
         language and poor memory for auditory,messages.  He also noted 
 
         inconsistencies in test results (exhibit 2, tab R, pages 489 and 
 
         490).
 
         
 
              Claimant was seen by Jerome Bernhoft, M.D.   In a  eport 
 
         dated September 8, 1987, Dr. Bernhoft stated that claimant had a 
 
         contusion to his skull and a neck sprain.  He found degeneration 
 
         in claimant's cervical spine which possibly
 
         
 
         
 
         
 
         KRUG v. COVENANT MEDICAL CENTER, INC.
 
         Page 5
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         preexisted the injury, but may have been aggravated by the injury 
 
         (exhibit 2, tab J, page 395).
 
         
 
              While claimant was seeing Dr. Roth and W. H. Verduyn, M.D., 
 
         he was also seeing Steven W. Tarr, M.D.  Dr. Tarr's notes 
 
         indicate that claimant in 1978 noted experiencing a lump in his 
 
         throat and posterior headaches which had lasted for approximately 
 
         30 years (exhibit 2, tab K, pages 398,  399 and 402-412).
 
         
 
              While receiving physical therapy from Bedard, claimant also 
 
         was receiving chiropractic treatments from Michael  J. Blough, 
 
         D.C.  Dr. Blough issued a report dated February 7, 1989 wherein 
 
         he felt that claimant's physical impairments limited him to 
 
         clerical-type or sedentary activities, that claimant was 
 
         moderately impaired mentally, and that in general claimant was 
 
         totally and permanently  disabled.  He felt that claimant's 
 
         condition was the result of a work-related injury, but that 
 
         claimant was a suitable candidate for occupational rehabilitation 
 
         and could work part-time (exhibit 2, tab H, page 372). Dr. Blough 
 
         subsequently stated that claimant had been slowly improving since 
 
         June 29, 1987, but that he would be unable to return to any 
 
         gainful employment (exhibit 2, tab H, page 373).
 
         
 
              Claimant also sought chiropractic treatment from David E. 
 
         Vorland, D.C. Dr. Vorland indicated that claimant's prognosis was 
 
         uncertain, but that he had been treating claimant for a 
 
         work-related injury (exhibit 2, tab H, page 374).
 
         
 
              Claimant in the past had obtained treatment from Andrew J. 
 
         Sassack III, M.D., for problems with choking.  A  barium swallow 
 
         test conducted at that time was interpreted as being negative 
 
         (exhibit 2, tab G, page 338).
 
         
 
              Claimant was first seen by psychiatrist P. B.  Raju, M.D., 
 
         on September 27, 1987 and was subsequently seen by Dr. Raju five 
 
         or six times.  Dr. Raju diagnosed claimant as suffering from 
 
         reactive depression and started anti- depressant medication.  Dr. 
 
         Raju indicated that from a psychiatric standpoint, he did not 
 
         consider claimant to  be disabled (exhibit 2, tab L, pages 439 
 
         and 440).
 
         
 
              The records indicate that claimant had injured his neck, in 
 
         particular the. right side, in an automobile accident that 
 
         occurred on September 21, 1980 when he was rear-ended.  He 
 
         received treatment from Drs. Roth and Poe for that incident. 
 
         X-rays were taken on January 20, 1981 which showed mild 
 
         hypertrophic changes.  Claimant was diagnosed as having a 
 
         persistent cervical strain syndrome
 
         
 
         
 
         
 
         KRUG v. COVENANT MEDICAL CENTER, INC.
 
         Page 6
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         (exhibit 2, tab E, pages 275, 276 and 290; exhibit 2, tab I, 
 
         pages 381 and 384).
 
         
 
              Claimant was thoroughly evaluated at the Abbott Northwestern 
 
         Hospital, Sister Kenny Institute.  At the time of the initial 
 
         evaluation, he was diagnosed as having chronic pain syndrome and 
 
         it was recommended that he enter the pain management clinic which 
 
         was offered at the center (exhibit 2, tab C, pages 172-176).  
 
         Claimant entered the program as an in-patient from November 13, 
 
         1988 through December 2, 1988.  While there, a functional 
 
         capacity assessment showed him to be capable of handling weights 
 
         in the range of 30-45 pounds (exhibit 2, tab C, pages 205  and 
 
         206).  The director of the chronic pain rehabilitation program 
 
         reported to Dr. Verduyn on December 8, 1988 that he felt that 
 
         claimant had not made significant progress.  He felt that 
 
         claimant was capable of returning to light or medium work which 
 
         required occasional lifting of 25-30 pounds.  Matthew Monsein, 
 
         M.D., also stated that when considering claimant's age, physical 
 
         limitations and educational level, it was doubtful he would be 
 
         able to find employment (exhibit 2, tab C, pages 213 and 214).
 
         
 
              The record reflects that claimant made application for 
 
         Social Security disability benefits on October 5, 1987, but that 
 
         the claim has been denied and was awaiting  hearing  (exhibit 2, 
 
         tab G, page 350).
 
         
 
              Dr. Verduyn's notes indicate that claimant felt the 
 
         evaluation which he received at the Sister Kenny Institute when 
 
         he was evaluated there on July 11, 1988 had been helpful (exhibit 
 
         2, tab A, page 104; exhibit 2, tab D, page 269).  Records from 
 
         the hospital indicate that no treatment of any nature was 
 
         provided on July 11, 1988, only testing and evaluation (exhibit 
 
         2, tab C, pages 161 and 162).
 
         
 
              The last three pages of exhibit 2, tab A, are unnumbered and 
 
         constitute a report from Dr. Verduyn dated March 21, 1989.  That 
 
         report contains a good general summary of claimant's treatment.  
 
         Dr. Verduyn diagnosed claimant's condition as post-head injury 
 
         syndrome due to a 48-pound hoist falling on his head from 
 
         approximately 12 feet.  He felt that claimant had sustained a 
 
         significant head  injury in that accident and that the head 
 
         injury made claimant unable to effectively complete a 
 
         rehabilitation program when combined with claimant's severe 
 
         learning disability.  Dr. Verduyn felt that claimant is 
 
         permanently and totally disabled due to the injury that claimant 
 
         suffered on February 4, 1987.
 
         
 
         
 
         
 
         KRUG v. COVENANT MEDICAL CENTER, INC.
 
         Page 7
 
         
 
         
 
              Claimant testified that at the present time he takes several 
 
         medications, one of which was prescribed by Dr. Raju, his 
 
         psychiatrist. Claimant stated that the neck brace which he wore 
 
         at hearing had been prescribed by Dr. Crouse who told him to wear 
 
         it when riding or driving in a car.  Claimant stated that he sees 
 
         a chiropractor and physical therapist twice per week.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant testified that in general he is practically 
 
         helpless.  He stated that he is unable to do the things he wants 
 
         to do and at times is even unable to turn over in  bed.  He 
 
         stated that he has felt terrible and has been in pain ever since 
 
         the accident.
 
         
 
              Claimant stated that if he stands for too long his hip 
 
         starts hurting and the pain goes up to the top of his head.  He 
 
         stated that walking will relieve the pain and that he walks 
 
         approximately two miles per day.  Claimant stated  that sitting 
 
         in a low chair worsens his pain.  He stated that he has to squat 
 
         to pick things up as he is unable to bend forward because when he 
 
         does it feels like his brain  is hitting the top of his head.
 
         
 
              Claimant stated that he is right-handed, but that if he 
 
         lifts more than a jug of milk with his right hand, he gets a 
 
         terrible pain up to his shoulder and into the top of his head.  
 
         He stated that he is essentially unrestricted with his left hand, 
 
         however.  Claimant stated that he can raise his right hand only 
 
         as high as eye level and that there are times when he is unable 
 
         to hold things with his right hand.
 
         
 
              Claimant stated that prior to the accident, he  was 
 
         sociable, but now he prefers to avoid other people.  He stated 
 
         that he cannot remember things as well.  Claimant stated that 
 
         mentally he simply wishes that he would die and get it over with.
 
         
 
              Claimant stated that at the present time he spends his days 
 
         watching television or walking.  He stated that he is unable to 
 
         do anything in the way of housework.  Claimant testified that he 
 
         is unable to work.
 
         
 
              Shirley Krug, claimant's wife of 13 years, stated that prior 
 
         to the accident, claimant was very patient and responsive to 
 
         people.  She described him as a hard worker who went to work 
 
         faithfully and liked his work.  Shirley stated that currently 
 
         claimant lacks patience, is easy to anger, avoids people whenever 
 
         he is in pain and goes to  bed to relieve his pain.
 
         
 
         
 
         
 
         KRUG v. COVENANT MEDICAL CENTER, INC.
 
         Page 8
 
         
 
         
 
              Shirley testified that prior to the accident, claimant 
 
         helped a friend with farming and engaged in other activities.  
 
         She stated they would go to movies or go dancing.  She stated 
 
         that presently they seldom go  to movies, but do visit friends 
 
         and family.  Shirley stated that prior to the accident claimant 
 
         was a good  handyman and could do almost anything, but that now 
 
         he is unable to perform handyman work due to his right hand 
 
         problem.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Shirley stated that she did not feel claimant could work due 
 
         to his pain, lack of patience and lack of use of his right hand.  
 
         She stated that his memory is impaired.  She felt that at times 
 
         he would start things and then forget what he was doing.  She 
 
         stated that at times he gets lost while driving.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on February 4, 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).
 
         
 
              Claimant's description of the injury-producing event is 
 
         corroborated by the medical evidence.  It is therefore determined 
 
         that claimant was injured when he was struck on the head by a 
 
         chain hoist weighing approximately 48 pounds which had pulled 
 
         loose from the ceiling and fell approximately 12 feet, hitting 
 
         him on the head.
 
         
 
              Following that injury, claimant continued to work until July 
 
         13, 1987 when he was taken off work under the direction of Dr. 
 
         Roth and placed into physical therapy.
 
         
 
              According to claimant, he returned to work on one occasion, 
 
         but it hurt so badly that he said he wanted to kill himself.  He 
 
         was taken to a psychiatrist and was then taken off work again.  
 
         Claimant related that he was released to return to work a second 
 
         time.  He worked eight hours on one day, but then was assigned to 
 
         perform overhead work on the second day which he was not able to 
 
         adequately perform.  He stated that his boss told him that if he 
 
         could not do the entire job, he had no job.  Claimant has not 
 
         since been employed.
 
         
 
              Claimant's injury is a head injury.  Permanent disability 
 
         resulting from such is to be compensated industrially since it is 
 
         not a scheduled member injury.
 
         
 
         
 
         
 
         KRUG v. COVENANT MEDICAL CENTER, INC.
 
         Page 9
 
         
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore 
 
         plain that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Industrial disability or loss of earning capacity is a 
 
         concept that is quite similar to impairment of earning capacity, 
 
         an element of damage in a tort case.  Impairment of physical 
 
         capacity creates an inference of lessened earning capacity.  The 
 
         basis element to be determined, however, is the reduction in 
 
         value of the general earning capacity of the person, rather than 
 
         the loss of wages or earnings in a specific occupation.  
 
         Post-injury earnings create a presumption of earning capacity.  
 
         The earnings are not synonymous with earning capacity and the 
 
         presumption may be rebutted by evidence showing the earnings to 
 
         be an unreliable indicator.  Carradus v. Lange, 203 N.W.2d. 565 
 
         (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
         516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
         34th Biennial Report, 218 (1979); 2 Larson Workmen's Compensation 
 
         Law, sections 57.21 and 57.31.
 
         
 
              W. H. Verduyn, M.D., has been one of claimant's primary 
 
         treating physicians.  In a report dated March  21, 1989,  Dr. 
 
         Verduyn indicated that in view of claimant's learning disability, 
 
         he would likely be unemployable if he were unable to resume 
 
         physical labor type of work.  Dr. Verduyn has diagnosed claimant 
 
         as having post-head injury syndrome.  He indicated that he 
 
         considers claimant to be totally and permanently disabled due to 
 
         the injury that he suffered on February 4, 1987.  Dr. Monsein, 
 
         from the Sister Kenny Institute, in his report of December 8, 
 
         1988 stated, in part, "Considering this individual's age, 
 
         physical limitations, and educational level, I am dubious that 
 
         employment will be available for him."   Dr. Monsein made this 
 
         statement despite his finding that claimant was capable of 
 
         returning to light or medium work.  Covenant Medical Center, 
 
         claimant's employer at the time of injury, has
 
         
 
         
 
         
 
         KRUG v. COVENANT MEDICAL CENTER, INC.
 
         Page 10
 
         
 
         
 
         refused to reemploy him.  That fact of reemployment is strong 
 
         evidence of a lack of employability.  2 Larson Workmen's 
 
         Compensation Law, section 57.61.
 
         
 
              The assessment of this case made by Dr. Verduyn is accepted 
 
         as being correct.  It is therefore determined that claimant is 
 
         permanently and totally disabled within the meaning of Iowa Code 
 
         section 85.34(3).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              In making this determination, it is recognized that claimant 
 
         had preexisting cervical spine problems, but it is also 
 
         recognized that the condition was apparently not disabling prior 
 
         to the February 4, 1987 trauma.
 
         
 
              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 v. Firestone Tire & Rubber Co
 
         ., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United States 
 
         Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 (1960).
 
         
 
              Claimant is therefore entitled to recover weekly 
 
         compensation for permanent total disability payable commencing 
 
         July 13, 1987.  Defendants are entitled to credit for the three 
 
         days of wages paid to claimant when he made his unsuccessful 
 
         attempts to return to work with the employer.
 
         
 
              Under the provisions of Iowa Code section 85.27, defendants 
 
         are responsible for payment of the expenses of claimant's medical 
 
         treatment resulting from the February 4, 1987 injury.  Upon 
 
         examining exhibits 1 through 26, all expenses listed are 
 
         determined to be causally connected to that February 4, 1987 
 
         injury.  Defendants are therefore responsible for payment of the 
 
         following medical expenses, after granting credit for payments 
 
         made by the employer's group carrier, as follows:
 
         
 
         
 
              Ronald R. Roth, M.D.               $  133.80
 
              Orthopaedic Specialists               108.00
 
              Chiropractic Clinic                 3,760.00
 
              David E. Vorland, D.C.              2,117.00
 
              David F. Poe, M.D.                     15.00
 
              Jerome C. Bernhoft, M.D.               30.00
 
              Steven W. Tarr, M.D.                   68.25
 
              C.N.S. Management & Rehabilitation    280.80
 
         
 
         
 
         
 
         KRUG v. COVENANT MEDICAL CENTER, INC.
 
         Page 11
 
         
 
         
 
              Cedarloo Psychiatric Clinic             176.00
 
              HoSung Chung, M.D.                      120.00
 
              M. Eyad Dughly, M.D.                    100.00
 
              Bedard Physical Therapy                 485.00
 
              Clinical Radiologists, P.C.             224.75
 
              Radiologists, Ltd.                       73.00
 
              Consulting Radiologists, Ltd.            54.50
 
              Clinical Prescription Center             97.05
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              Osco Drug Pharmacy                      110.68
 
              Covenant Medical Center               1,941.07
 
              Sister Kenny Institute                7,802.20
 
              Travel and transportation expenses
 
                 to be refunded to claimant           799.75
 
              Total                               $18,496.85
 
         
 
              The rate of compensation was identified as  an issue in the 
 
         case.  The record does not contain sufficient information to make 
 
         an accurate determination of claimant's gross weekly earnings or 
 
         of what the rate of compensation should be.  The rate will 
 
         therefore be determined based upon what evidence was provided.  
 
         Claimant testified that he was paid $9.34 or $9.37 per hour at 
 
         the time of injury and that workers' compensation benefits had 
 
         been paid to him at the rate of $235.06 per week.  Since this was 
 
         not a cumulative trauma injury, the July 1, 1986 benefit schedule 
 
         would be applicable.  Claimant's marital status is married and he 
 
         is entitled to two exemptions.  The weekly benefit rate which had 
 
         been paid would represent gross weekly wages of $375.00.  An 
 
         hourly rate of $9.36 or $9.37 rounds to $375.00 per week, based 
 
         upon a 40-hour work week.  The pay stubs entered into evidence 
 
         appear to show some overtime work, but without having a full 13 
 
         weeks of earnings in evidence, it is not possible to determine 
 
         whether that overtime shown  is common, uncommon, or whether it 
 
         was offset by less than 40 hours of work during other weeks 
 
         preceding the injury.  It is therefore determined that claimant's 
 
         gross weekly wages were in fact $374.80 and that the rate of 
 
         compensation is therefore $235.06 per week.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1. On February 4, 1987, Otto B. Krug, Jr., was an employee 
 
         of Covenant Medical Center where he was employed as a maintenance 
 
         person and paid at the rate of $9.37 per hour.
 
         
 
              2. On February 4, 1987, claimant was struck on the  top of 
 
         the head by a 48-pound chain hoist which had pulled loose from 
 
         the ceiling and fallen 12 feet before striking him.
 
         
 
              3.  Following that injury, claimant continued to work until 
 
         July 13, 1987 when he was taken off work by his
 
         
 
         
 
         
 
         KRUG v. COVENANT MEDICAL CENTER, INC.
 
         Page  12
 
         
 
         
 
         treating physician.  Claimant has not since made a sustained 
 
         resumption of employment, although he did work on three days in 
 
         an attempt to resume employment.
 
         
 
              4. Otto B. Krug, Jr., and his  wife, Shirley Krug, are 
 
         credible witnesses.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              5. The assessment of this case made by Dr. Verduyn is 
 
         correct.
 
         
 
              6. Otto B. Krug, Jr., is currently unemployable and there is 
 
         no foreseeable chance that his employment status will change in 
 
         the foreseeable future.
 
         
 
              7. Claimant is afflicted with a learning disability which 
 
         limits his potential employment to jobs which are primarily in 
 
         the nature of physical labor.
 
         
 
              8. As a result of the February 4, 1987 injury, claimant 
 
         suffers from pain and loss of use of his r ight hand which 
 
         essentially eliminates him from physical  labor  types of 
 
         positions.
 
         
 
              9. Claimant incurred expenses in obtaining treatment for the 
 
         injury in the total amount of $18,496.85.
 
         
 
                                CONCLUSIONS OF LAW
 
                                        
 
              1. This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2. Otto B. Krug, Jr., is permanently and totally disabled as 
 
         a result of the injuries he sustained on February 4, 1987 when he 
 
         was struck on the head by a chain hoist at his place of 
 
         employment.
 
         
 
              3. Claimant's rate of compensation is $235.06 per week.
 
         
 
              4. Defendants are responsible under the provisions of Iowa 
 
         Code section 85.27 to pay claimant's expenses of medical 
 
         treatment which have not been paid by the employer's group 
 
         insurance carrier in the total amount of $18,496.85.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant weekly 
 
         compensation for permanent total disability at the rate of two 
 
         hundred thirty-five and 06/100 dollars ($235.06) per week payable 
 
         commencing July 13, 1987.  Defendants are granted credit for the 
 
         three (3) days of wages paid when
 
         
 
         
 
         
 
         KRUG v. COVENANT MEDICAL CENTER, INC.
 
         Page 13
 
         
 
         
 
         claimant resumed employment and also for all weekly compensation 
 
         which has been paid prior to hearing.
 
         
 
              IT IS FURTHER ORDERED that defendants pay any unpaid, past 
 
         due amounts in a lump sum together with interest pursuant to Iowa 
 
         Code section 85.30.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              IT IS FURTHER ORDERED that defendants pay the following 
 
         under the provisions of Iowa Code section 85.27:
 
         
 
         
 
              Ronald R. Roth, M.D.                     $   133.80
 
              Orthopaedic Specialists                      108.00
 
              Chiropractic Clinic                        3,760.00
 
              David E. Vorland, D.C.                     2,117.00
 
              David F. Poe,  M.D.                           15.00
 
              Jerome C. Bernhoft, M.D.                      30.00
 
              Steven W. Tarr, M.D.                          68.25
 
              C.N.S.  Management & Rehabilitation          280.80
 
              Cedarloo Psychiatric Clinic                  176.00
 
              HoSung Chung,  M.D.                          120.00
 
              M. Eyad Dughly, M.D.                         100.00
 
              Bedard Physical Therapy                      485.00
 
              Clinical Radiologists, P.C.                  224.75
 
              Radiologists, Ltd.                            73.00
 
              Consulting Radiologists, Ltd.                 54.50
 
              Clinical Prescription Center                  97.05
 
              Osco Drug Pharmacy                           110.68
 
              Covenant Medical Center                    1,941.07
 
              Sister Kenny Institute                     7,802.20
 
              Travel and transportation expenses
 
                 to be refunded to claimant                799.75
 
              Total                                    $18,496.85
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         action pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file claim activity 
 
         reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 16th day of January, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         MICHAEL G. TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         KRUG v. COVENANT MEDICAL CENTER, INC.
 
         Page 14
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Frank Watson, Jr.
 
         Attorney at Law
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         410 Hubbell Building
 
         Ninth & Walnut
 
         Des Moines, Iowa  50309
 
         
 
         Mr. Fred L. Morris
 
         Attorney at Law
 
         Suite 300, Fleming Building
 
         P.O. Box 9130
 
         Des Moines, Iowa  50306-9130
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1402.30, 1402.40, 1804
 
                                         1807, 3001
 
                                         Filed January 16, 1990
 
                                         MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         OTTO B. KRUG, JR.,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 File No. 857440
 
         COVENANT MEDICAL CENTER, INC.,:
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         ALEXSIS RISK MANAGEMENT,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1402.30, 1402.40, 1804, 1807
 
         
 
              Claimant was struck on the head by a chain hoist.  He was 
 
         held to be permanently totally disabled in accordance with the 
 
         assessment of his primary treating physician.  Claimant was aided 
 
         in proving his case by a sanction which prohibited defendants 
 
         from engaging in any activity.
 
         
 
         
 
         3001
 
         
 
              The record did not contain 13 weeks of earnings, so 
 
         claimant's rate was based upon his testimony of hourly earnings 
 
         and a 40-hour work week, despite the fact that the pay stubs 
 
         which claimant introduced showed some overtime work.