BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            RAYMOND P. DEROSEAR,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 858124
 
                                          :
 
            DEROSEAR ELECTRIC, INC.,      :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            UNITED FIRE & CASUALTY        :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Claimant Raymond P. DeRosear seeks benefits under the 
 
            Iowa Workers' Compensation Act upon his petition in 
 
            arbitration against his wholly-owned defendant employer 
 
            DeRosear Electric, Inc., and its insurance carrier, United 
 
            Fire & Casualty Company.  He asserts that he sustained 
 
            industrial disability in the course of his employment 
 
            following a fall from the roof of a home owned by his 
 
            father.
 
            
 
                 This cause was bifurcated and a decision rendered on 
 
            May 24, 1991, finding that claimant was entitled to coverage 
 
            under the workers' compensation insurance contract between 
 
            DeRosear Electric and United Fire & Casualty Company.  
 
            Remaining issues came on for hearing before the undersigned 
 
            in Des Moines, Iowa, on December 12, 1991.  The following 
 
            witnesses testified at hearing:  Claimant, Paula DeRosear, 
 
            Robert Warren, Ronald DeRosear, Verle DeRosear, Michael 
 
            O'Brien, Fred Hoenig, Shawn O'Brien, William Catalona, M.D., 
 
            Charles Fisher and Kent Muntz.  The following exhibits were 
 
            received:  joint exhibits 1 through 31 and 31A; defendants' 
 
            exhibits A-1, A-2, A-3, B, C, D, E and F; and, claimant's 
 
            exhibit Z.
 
            
 
                          
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                                      ISSUES
 
            
 
                 The parties have stipulated that claimant's alleged 
 
            injury caused temporary disability from June 12, 1987, 
 
            through May 10, 1989, that if permanent disability has been 
 
            sustained, it is an industrial disability, and that 
 
            entitlement to medical benefits is not disputed.
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  Whether an employment relationship existed between 
 
            Raymond DeRosear and DeRosear Electric, Inc., on June 12, 
 
            1987;
 
            
 
                 2.  Whether claimant sustained an injury on that date 
 
            arising out of and in the course of such employment;
 
            
 
                 3.  Whether the injury caused permanent disability and 
 
            the extent thereof; and,
 
            
 
                 4.  The proper rate of compensation.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Raymond DeRosear, 43 years of age at hearing, was 
 
            president and owner of DeRosear Electric, Inc., on June 12, 
 
            1987, a Friday.  Claimant and his wife Paula DeRosear 
 
            visited his father Verle DeRosear at about 6:00 p.m. that 
 
            night.  Claimant and Verle went up to the roof to install 
 
            shingles.  Paula and claimant's daughter also went up to 
 
            carry shingles.  In addition, Mr. DeRosear's daughter's 
 
            boyfriend, one Darren Long, appeared and was also allowed to 
 
            help.  About an hour after Long appeared, claimant 
 
            accidently stepped backwards off the roof and suffered 
 
            severe injuries in the fall.  His recovery has been 
 
            courageous but incomplete.
 
            
 
                 Raymond DeRosear began working for Verle DeRosear in 
 
            approximately 1971.  Verle at that time operated DeRosear 
 
            Electric as a sole proprietor.  Claimant eventually became a 
 
            partner to his father and the business was incorporated in 
 
            1982.  Shortly thereafter, Verle retired and the business 
 
            was purchased by Ray.  The purchase price of $150,000 was to 
 
            be paid largely in monthly installments.  Supposedly, the 
 
            corporation itself assumed the debt load, rather than Ray.  
 
            Of course, if the corporation be considered a separate legal 
 
            entity, it makes no sense for it to assume another's 
 
            liability (without any consideration whatsoever) merely to 
 
            finance a change of ownership.  As shall be seen, this is 
 
            but one of many financial irregularities involving the 
 
            relationship between DeRosear Electric, Inc., and members of 
 
            the DeRosear family.
 
            
 
                 In any event, the business fell on hard times and 
 
            discontinued payments to Verle.  As of the end of both 1986 
 
            and 1987, some $92,000 remained unpaid.
 
            
 
                 In 1987, Verle DeRosear began construction of a new 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            home.  According to Verle, all necessary materials were 
 
            purchased through DeRosear Electric, but he had begun 
 
            stockpiling these as early as the 1960s.  The electrical 
 
            materials he purchased through DeRosear Electric in 1987 
 
            were inadequate to rewire a house of that size.  However, 
 
            Verle earlier testified by deposition that he had no 
 
            supplies of materials on hand to begin, testimony he agreed 
 
            at trial was incorrect.  He explained the discrepancy by 
 
            indicating that he had meant he had no material on hand 
 
            prior to starting DeRosear Electric, rather than prior to 
 
            contracting with DeRosear Electric for assistance in 
 
            constructing his home.  According to Verle, DeRosear 
 
            Electric (whose only employees are Raymond, his wife Paula 
 
            and his brother Ron) was compensated for materials and labor 
 
            supplied.  Furthermore, he made payment even though the same 
 
            corporation owed him a preexisting debt of $92,000.  Some of 
 
            these payments were made in cash directly to Ray so that 
 
            those funds need not be exposed to creditors through deposit 
 
            in a bank, Ray being in financial trouble at the time.
 
            
 
                 Verle also has a third son, Jeff.  Jeff also worked on 
 
            the home in 1987, but was paid nothing.  Ray and Ron, on the 
 
            other hand, were supposedly paid their regular hourly wage 
 
            for this work as employees of the corporation.  Ron and Ray, 
 
            presumably less filially inclined than Jeff, commonly worked 
 
            nights and weekends.  However, payroll records show that 
 
            neither was paid any overtime in connection with this 
 
            project.  It will be recalled that on the night claimant was 
 
            injured, he was shingling along with Verle and his 
 
            daughter's boyfriend, Darren Long.  In deposition testimony 
 
            of March 28, 1989, Raymond testified that his daughter and 
 
            wife were both up on the roof helping by carrying shingles 
 
            to the roofers.  Page 84 of that deposition is attached to 
 
            Respondent's Resistance to Claimant's Motion for Partial 
 
            Summary Judgment filed March 25, 1991.  Under Iowa Code 
 
            section 17A.12(6)(b), the record in a contested case 
 
            includes all pleadings, motions and intermediate rulings.
 
            
 
                 On March 27, 1987, DeRosear Electric billed Verle 
 
            DeRosear for certain materials in the amount of $275.17.  
 
            Verle paid no labor charges prior to the subject injury.  
 
            This payment, which preceded the injury date, is consistent 
 
            with a project actually contracted to DeRosear Electric.  
 
            However, it is also consistent with Verle merely having 
 
            ordered needed materials through DeRosear Electric to take 
 
            advantage of the contractor's discount customarily granted 
 
            by materials suppliers.  The corporation was certainly not 
 
            averse to helping Verle out in irregular ways.  For example, 
 
            the company insured Verle's health through Blue Cross/Blue 
 
            Shield in 1986, 1987 and probably 1988, even though he was 
 
            neither an employee nor an officer of the corporation.
 
            
 
                 Time records kept by Ron DeRosear on a job sheet 
 
            dedicated to the Verle DeRosear project show that he and Ray 
 
            worked substantial hours on the job beginning April 11, 
 
            1987, in particular showing Ray assigned three hours of work 
 
            laying shingles on June 12.  Obviously, this is consistent 
 
            with a preexisting good faith contract between Verle and 
 
            DeRosear Electric.  Defendants, on the other hand, view this 
 
            document, joint exhibit 2, as manufactured evidence, a 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            position not without support in the record.  This job sheet 
 
            is, at the least, irregular in that it does not conform with 
 
            normal procedure.  Ron and Ray each kept work sheets in 
 
            their trucks.  Normally, if the two men worked together on a 
 
            project, only one would record the hours.  If one man worked 
 
            alone, he would record his own hours on his own work sheet.  
 
            That was not done in this case.  The Verle DeRosear job 
 
            sheet was kept only by Ron.  When Ray worked alone, he 
 
            supposedly reported his hours to Ron, who would then make an 
 
            appropriate record on his job sheet.  It is most odd that 
 
            Ron, rather than Ray, was assigned responsibility for 
 
            keeping the work sheet, since he worked alone for the first 
 
            time on June 22.  Ray, on the other hand, is shown working 
 
            alone on April 11 (as the very first entry, presumably when 
 
            the job sheet was first kept--but why not in Ray's truck?) 
 
            and 16, May 12, 18, 26, 27 and 30 and June 1, 7 and 12.  It 
 
            is undisputed that all of the entries are in Ron's 
 
            handwriting.  Ron testified that he did not prepare the 
 
            exhibit at a single sitting.  However, the exhibit certainly 
 
            looks as though it were prepared that way.  The spacing of 
 
            each page has its own character.  For each line (each entry 
 
            is double-spaced), the name of the worker, the hours worked 
 
            and the duty performed are recorded.  On the first half of 
 
            the first page, there are generally consistent gaps of 
 
            roughly one-half inch between the hours worked and the 
 
            duties performed; on the bottom half of that page, the 
 
            duties performed appear more like a column, although shifted 
 
            to the right on the June 5 entry, when both men worked.  On 
 
            the second page, the "duties" look remarkably like a column, 
 
            such as might be the case if the entire page was prepared in 
 
            a single sitting.  Likewise the third page, except even more 
 
            so.  Handwriting looks remarkably consistent throughout all 
 
            three pages, unlike what one might expect of entries made at 
 
            different times and circumstances in a truck.  Although a 
 
            photocopy was received into evidence rather than the 
 
            original, there appears no dramatic difference between 
 
            writing instruments and the pressure used, since all writing 
 
            appears to be of equal darkness and thickness.  The document 
 
            has also been altered.  Charles Fisher, a certified public 
 
            accountant, pointed out that an entry at one time appeared 
 
            for July 3 on an earlier copy, but has now been deleted.  
 
            The photocopy received appears to show a deleted entry on 
 
            the second page immediately following June 27.  Exhibit 2 is 
 
            more consistent with a theory of manufacture by Ron to 
 
            bolster Ray's case that the injury was work related, rather 
 
            than incurred during participation in a family construction 
 
            project.
 
            
 
                 Verle was eventually billed for labor.  Invoice number 
 
            7903 shows five payments made by Verle beginning June 30, 
 
            1987, and ending March 28, 1988.  The invoice bears the 
 
            initial date of June 2, 1987.  Curiously, invoices numbered 
 
            7901 and 7902, which presumably would have been used first 
 
            on the pad, are dated July 21 and July 22, respectively.
 
            
 
                 Invoices 7930 through 7933 reflect all labor on the 
 
            project from April 4 through September 4, 1987.  These four 
 
            invoices were apparently prepared as a single continuing 
 
            document on or about September 4.  Charles Fisher testified 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            that invoices 7930, 7931 and 7932 were out of time sequence.  
 
            Fisher apparently failed to notice that these three invoices 
 
            were prepared as a single continuing document with invoice 
 
            number 7933, which shows a last entry of September 4.  
 
            Invoice 7929, not related to this action, is dated September 
 
            2; invoice 7935, also unrelated, relates to services between 
 
            June 24 and September 10.  Therefore, it is clear that these 
 
            invoices are not out of time sequence as Fisher suggested.
 
            
 
                 However, Fisher pointed out other incongruities in his 
 
            testimony.  Comparing cash receipts to DeRosear Electric's 
 
            bank account, some of the cash paid by Verle was not 
 
            deposited until long after it was received.  Ron and Ray 
 
            claim they worked but were paid no overtime, although this 
 
            is required by federal law.  Job sheets on this supposed 
 
            project were prepared only by Ron as previously discussed.  
 
            Federal tax returns substantially understate income in 1987, 
 
            improperly evading taxes of some $1,100.  Sales tax records 
 
            to a small degree understate actual taxable items.  Personal 
 
            items appear to have been purchased through the corporation 
 
            (Verle's Blue Cross/Blue Shield, some of Ray's Mastercard 
 
            payments and Ray's personal 1988 income tax were all paid by 
 
            the corporation and characterized as "business expenses").  
 
            On occasion, Ray withdrew cash when making deposits for the 
 
            business, rather than putting the funds in the corporate 
 
            account.  In addition, the corporation (when it had the 
 
            money) paid Ray $550 per month in addition to his wage (Ray 
 
            had personally mortgaged his home as collateral for a Small 
 
            Business Administration loan to the business).  Ray failed 
 
            to report that income on his personal tax returns.
 
            
 
                 Although DeRosear Electric engaged in numerous 
 
            construction activities including electrical work, cement 
 
            work, trenching, water line installation, carpentry, patch 
 
            roofing (the Verle DeRosear "project" is concededly the only 
 
            whole-roof job), welding and remodeling of trailers, none of 
 
            these activities other than indoor electrical work was 
 
            admitted to United Fire & Casualty Company, the workers' 
 
            compensation insurance carrier.  This, of course, resulted 
 
            in a premium cost to DeRosear Electric lower than the cost 
 
            to which it would have been entitled had full disclosure 
 
            been made.  This remained the case even though coverage was 
 
            discussed with Kent Muntz and actually changed with respect 
 
            to office work.
 
            
 
                 Claimant and his wife did not initially treat the 
 
            injury as work related with respect to insurance coverage.  
 
            When he was admitted to the hospital immediately following 
 
            the fall, insurance coverage was listed under Blue 
 
            Cross/Blue Shield, the company health and accident carrier.  
 
            The same insurer was cited when claimant was transferred to 
 
            a more specialized hospital for surgery.  This observer has 
 
            little doubt that had claimant fallen from a roof during 
 
            regular working hours while doing routine electrical work 
 
            for a commercial account, the compensation carrier would 
 
            have been listed upon hospital admission.  In a conversation 
 
            with insurance agent Muntz on June 15, 1987, Paula asked 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            whether the injury would be covered by workers' compensation 
 
            insurance.  The mere fact that this inquiry was made is 
 
            inconsistent with a legitimate work injury.
 
            
 
                 In a telephone conversation with Robert Warren, a 
 
            claims representative for United Fire & Casualty, claimant 
 
            commented that he did not know the exact rate or charge for 
 
            the Verle DeRosear job, but "just wanted to help his dad."
 
            
 
                 Thus, the record shows much that is suspicious or 
 
            irregular.  Many of these matters can be (and were) 
 
            explained away in one way or another, but the cumulative 
 
            effect is great.  It is clear that the accounts and doings 
 
            of the corporate entity were commonly used or misused as 
 
            might be advantageous to family members.  The finder of 
 
            fact, considering the entire body of evidence, is not 
 
            convinced that Raymond DeRosear was engaged in work 
 
            activities at the time of his fall, as opposed to simply 
 
            helping out his father along with other family members.  It 
 
            should not be forgotten that he (or as alleged, the 
 
            corporate entity) still owed in excess of $90,000 to Verle 
 
            at the time this work was performed, supposedly for his 
 
            regular (hourly) wage.
 
            
 
                                conclusions of law
 
            Claimant has the burden of proving by a preponderance of the 
 
            evidence that he received an injury on June 12, 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. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 
 
            (1967). 
 
            The words "out of" refer to the cause or source of the 
 
            injury.  Crowe v. DeSoto Consol. School Dist., 246 Iowa 402, 
 
            68 N.W.2d 63 (1955). 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union, 
 
            et al., Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v. 
 
            DeSoto Consol. School Dist., 246 Iowa 402, 68 N.W.2d 63 
 
            (1955).
 
            
 
                 Claimant bears the burden of persuasion to prove that 
 
            his fall arose out of and in the course of employment.  As 
 
            seen above, the finder of fact remains unpersuaded.  
 
            Claimant's burden of proof has not been met with respect to 
 
            the "arising out of" and "in the course of" requirements.  
 
            Accordingly, the cause must be resolved in favor of 
 
            defendants.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing from this proceeding.
 
            
 
                 Costs of this action are assessed to claimant pursuant 
 
            to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1992.
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. C. K. Pettit
 
            Attorney at Law
 
            111 South Madison
 
            Bloomfield, Iowa  52537
 
            
 
            Mr. J. W. McGrath
 
            Attorney at Law
 
            Fourth & Dodge
 
            Keosauqua, Iowa  52565
 
            
 
            Mr. John C. Stevens
 
            Attorney at Law
 
            112 East Second Street
 
            P.O. Box 748
 
            Muscatine, Iowa  52761
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            RAYMOND P. DEROSEAR,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 858124
 
            DEROSEAR ELECTRIC, INC.,      :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
            /                             :
 
            UNITED FIRE & CASUALTY        :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Raymond 
 
            P. DeRosear, claimant, against DeRosear Electric, Inc., as 
 
            the employer, and United Fire and Casualty Company, as the 
 
            insurance company. both as defendants.  
 
            
 
                 The record in the case consists of testimony from the 
 
            claimant; and, claimant's exhibits 1, 2, and 3.
 
            
 
                 The sole issue to be determined is whether claimant is 
 
            a covered employee under the workers' compensation insurance 
 
            policy issued for defendant employer.
 
            
 
                 The relative portion of the policy presents the 
 
            following information:
 
            
 
                 Workers Compensation & Employers Liability 
 
                 Insurance Policy - Information Page
 
            
 
                 Policy No:  60-015 84
 
            
 
                 Issue Date:  02-24-88
 
            
 
                 Insured:   De Rosear Electric Inc
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Item
 
            
 
                 4.  The premium for this policy will be determined 
 
                 by our manuals of rules, classifications, rates 
 
                 and rating plans.  All information required below 
 
                 is subject to verification and change by audit.
 
            
 
                 Premium = Estimated Annual Premium      Rates 
 
                 Apply Per $100 of Remuneration  Premium Basis = 
 
                 Total Estimated Annual Remuneration
 
            
 
                 Classification    Code No.  Premium    Rate  
 
                 Premium
 
                                        Basis
 
            
 
                 Electrical Wiring
 
            within Buildings
 
            & Drivers          5190      $5000      $3.95    
 
            198
 
            
 
                 Clerical Office
 
            Employees NOC      8810       3000        .16      
 
            5
 
            
 
                 ....
 
            
 
                               GENERAL SECTION
 
            
 
                 A. The Policy
 
            
 
                    This policy includes at its effective date the 
 
                 Information Page and all endorsements and 
 
                 schedules listed there.  It is a contract of 
 
                 insurance between you (the employer named in item 
 
                 1 of the Information Page) and us (the insurer 
 
                 named on the Information Page).  The only 
 
                 agreements relating to this insurance are stated 
 
                 in this policy.  The terms of this policy may not 
 
                 be changed or waived except by endorsement issued 
 
                 by us to be part of this policy.
 
            
 
                 B. Who is Insured
 
            
 
                    You are insured if you are an employer named in 
 
                 item 1 of the Information Page.  If that employer 
 
                 is a partnership, and if you are one of its 
 
                 partners, you are insured, but only in your 
 
                 capacity as an employer of the partnership's 
 
                 employees.
 
            
 
            (Cl. Ex. 1) 
 
            
 
                 Subsequent renewals kept the policy in effect from 1986 
 
            through 1988.
 
            
 
                 The issue in the case revolves around claimant's 
 
            position with the company, and focuses on whether claimant 
 
            is covered under the workers' compensation policy in effect 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            at the time of his injury, which occurred on July 12, 1987.
 
            
 
                 Defendant insurance company, United Fire & Casualty 
 
            Company, has sought to avoid coverage to claimant under the 
 
            policy issued to DeRosear Electric, Inc., on the grounds 
 
            that the "classifications" specified by the policy did not 
 
            include the employment activity in which claimant was 
 
            engaged at the time of his injury.
 
            
 
                 Iowa's workers' compensation laws are liberally 
 
            construed to protect the employee.  And, insurance policies 
 
            issued for the purpose of covering workers must be liberally 
 
            interpreted to protect the employee.  See, Bates v. Nelson, 
 
            38 N.W.2d, 631, 240 Iowa 926 (1949).  As the Court stated in 
 
            Bates, "[w]e cannot sanction a construction of our statute 
 
            that places the insurance protection to the employee at the 
 
            risk of possible contractual misunderstanding between the 
 
            employer and insurance carrier."  Bates, 240 Iowa at 931.  
 
            The Court went on to state that:
 
            
 
                 So far as the rights of the [worker] are concerned 
 
                 we think the provisions of the law are a part of 
 
                 the policy whether written into it or not and even 
 
                 when (as here, apparently) the written terms 
 
                 imperfectly or inadequately state the nature and 
 
                 extent of the employment to be covered.  Any such 
 
                 inadequacy or imperfection, due to possible 
 
                 misunderstanding between employer and insurer, may 
 
                 be conceivably be the subject of litigation 
 
                 between them but cannot affect the rights of the 
 
                 employee.  Bates, 240 Iowa at 932
 
            
 
                 At the hearing, claimant testified that he was an 
 
            employee of the corporation of DeRosear Electric, Inc.  
 
            Claimant is also president of the corporation, and as such 
 
            is afforded coverage under a workers' compensation policy 
 
            pursuant to Iowa Code section 85.1(5).  As a result, 
 
            claimant is entitled to coverage under the workers' 
 
            compensation policy in effect at the time of his injury.  
 
            However, further issues, including whether claimant 
 
            sustained an injury which arose out of and in the course of 
 
            his employment will be addressed at a separate hearing.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant is entitled to coverage under the 
 
            insurance policy.
 
            
 
     
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Signed and filed this ____ day of May, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr J W McGrath
 
            Attorney at Law
 
            4th & Dodge Streets
 
            Keosauqua Iowa 52565
 
            
 
            Mr Charles K Pettit
 
            Attorney at Law
 
            111 S Madison
 
            Bloomfield Iowa 52537
 
            
 
            Mr John C Stevens
 
            Attorney at Law
 
            122 E Second Street
 
            Muscatine Iowa 52761
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1402.30
 
                                               Filed March 10, 1992
 
                                               DAVID RASEY
 
            
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            RAYMOND P. DEROSEAR,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 858124
 
                                          :
 
            DEROSEAR ELECTRIC, INC.,      :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            UNITED FIRE & CASUALTY        :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1402.30
 
            Claimant, owner of electrical contracting business, was 
 
            injured in a fall while roofing his father's house with 
 
            other family members.
 
            Given a cumulation of irregularities, claimant did not prove 
 
            that his injury arose out of employment.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    2105
 
                                                    Filed May 24, 1991
 
                                                    PATRICIA J. LANTZ
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            RAYMOND P. DEROSEAR,     
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                  File No. 858124
 
            DEROSEAR ELECTRIC, INC., 
 
                                              A R B I T R A T I O N
 
                 Employer, 
 
                                                 D E C I S I O N
 
            and       
 
                      
 
            UNITED FIRE & CAUSALTY   
 
            COMPANY,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            2105
 
            Pursuant to the hearing assignment order, the only issue to 
 
            be addressed was whether claimant was entitled to coverage 
 
            under the workers' compensation policy in effect at the time 
 
            of the hearing.
 
            Held: Classifications delineated in insurance policies are 
 
            expansive, and are construed liberally in favor of the 
 
            employee.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LARRY ETHELL,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :  File Nos.  858197 & 933329
 
            3 M CORPORATION,              :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            NORTHWESTERN NATIONAL,        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Larry 
 
            Ethell as a result of injuries to his back which occurred on 
 
            March 8, 1987 (858197) and April 6, 1988 (933329).  
 
            Defendants admitted liability in file number 858197 and 
 
            denied liability in file number 933329, but paid weekly 
 
            benefits and medical expenses.
 
            
 
                 The case was heard and fully submitted at Des Moines, 
 
            Iowa, on May 1, 1991.  The record in the proceeding consists 
 
            of joint exhibits 1 through 5 and testimony from claimant, 
 
            Geraldine Ethell, Connie Husted, John Dugan, Jr., and Barb 
 
            Chaldy.
 
            
 
                                      issues
 
            
 
                 The issues presented for determination in file number 
 
            858197 are as follows:
 
            
 
                 1.  Claimant's entitlement to temporary total 
 
            disability or healing period benefits;
 
            
 
                 2.  The causal connection of permanent disability and 
 
            the extent of entitlement to benefits under Iowa Code 
 
            section 85.34 (2)(u); and
 
            
 
                 3.  Claimant's weekly rate of compensation.
 
            
 
                 The issues for determination in file number 933329 are 
 
            as follows:
 
            
 
                 1.  Whether claimant sustained an injury on April 6, 
 
            1988, arising out of and in the course of employment;
 
            
 
                 2.  Whether the alleged injury is a cause of temporary 
 
            disability and the extent of temporary disability;
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 3.  Whether the alleged injury is a cause of permanent 
 
            disability and the extent of entitlement to benefits under 
 
            Iowa Code section 85.34(2)(u); and
 
            
 
                 4.  Claimant's weekly rate of compensation.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received the 
 
            following findings of fact are made:
 
            
 
                 Claimant, Larry Ethell, was a journeyman electrician at 
 
            the time he started work for employer in May 1983.  His work 
 
            for employer consisted of production work in a tape factory.  
 
            Claimant had been laid off from his last electrician job and 
 
            went to work for 3M anticipating that he could obtain 
 
            another job as an electrician.
 
            
 
                 On March 8, 1987, while performing production work for 
 
            employer, claimant injured his low back when he was cradling 
 
            a core that was being pulled by a coemployee.
 
            
 
                 Claimant went off work on July 6, 1987, to receive 
 
            treatment for the injury.  Jerome G. Bashara, M.D., 
 
            diagnosed the injury as a herniated disc and surgery was 
 
            performed on July 29, 1987.  Claimant was off work until 
 
            December 8, 1987.
 
            
 
                 Employer returned claimant to the same work that he was 
 
            performing prior to the injury.  Dr. Bashara rated 
 
            claimant's impairment at 10 percent to the body as a whole 
 
            (exhibit 1, page 6).
 
            
 
                 Claimant, upon his return to work for employer, 
 
            continued to perform production work which required lifting 
 
            weights of 50 to 100 pounds.
 
            
 
                 On April 6, 1988, claimant traded jobs with a coworker.  
 
            On that date claimant experienced increased back pain caused 
 
            by the lifting of heavy cores.  Claimant described his job 
 
            as requiring heavier and more frequent lifting than what he 
 
            had been doing.  Claimant again sought treatment for the low 
 
            back pain with a second low back surgery on June 27, 1988 
 
            (ex. 1, p. 6).
 
            
 
                 Claimant was released to perform light duty work in 
 
            November 1988.  Employer offered light duty employment 
 
            starting November 7, 1988 through November 27, 1988, and 
 
            then informed him that no further work would be offered.
 
            
 
                 Claimant was assigned a 20 percent permanent impairment 
 
            to the body as a whole with 10 percent caused by the April 
 
            6, 1988 injury.  Permanent work restrictions of no lifting 
 
            over 35 pounds, no bending, no stooping, and no twisting 
 
            were assigned by Dr. Bashara (ex. 1, p. 4).
 
            
 
                 Employer offered no further employment and instead 
 
            retained a vocational rehabilitation counselor to assist 
 
            claimant with schooling and reemployment.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Claimant reentered school with robotics as a goal.  
 
            However, he did not complete any robotics classes.  After 
 
            completing some general course work, claimant obtained an 
 
            electricians job with Herschel in March of 1990.  Claimant 
 
            was quickly promoted at this new job and at the time of 
 
            hearing was a master electrician earning $13.55 per hour.  
 
            His starting wage with Herschel was $9.12.
 
            
 
                 Geraldine Ethell testified that she has been claimant's 
 
            wife for 34 years.  She stated that claimant's back hurts 
 
            after long days at work.
 
            
 
                 John Dugan, Jr., testified that he is the plant 
 
            superintendent and personnel manager for Herschel.  His 
 
            employer is a small company which employs about 125 
 
            individuals.  He said that his company was willing to give 
 
            an older, injured worker a second chance.  He stated that 
 
            larger companies generally do not want to hire workers who 
 
            have had prior injuries.  He stated that claimant is an 
 
            excellent worker who had no absences since being hired.
 
            
 
                 Connie Husted is a human resources coordinator for 3M.  
 
            She has worked for employer for the last 17 years.  She 
 
            testified that no work was available with 3M that would meet 
 
            claimant's current work restrictions.  She stated that the 
 
            electrician jobs at 3M would not meet claimant's current 
 
            work restrictions.  She further stated that a vocational 
 
            rehabilitation counselor was hired due to the lack of 
 
            suitable work at 3M.  
 
            
 
                 Barb Chaldy is a vocational rehabilitation expert who 
 
            was retained by employer to assist claimant with schooling 
 
            and reemployment.  Chaldy stated that claimant's grades were 
 
            excellent.  She also stated that electrician jobs in Iowa 
 
            ranged from $6 to $21 per hour, but that claimant's work 
 
            restrictions may preclude him from obtaining certain 
 
            electrician jobs, such as, the positions at 3M.  Chaldy 
 
            described claimant as motivated.
 
            
 
                 The first issue to be decided in file number 858197 is 
 
            the causal connection and extent of permanent partial 
 
            disability.
 
            
 
                 The medical evidence offered reveals that claimant 
 
            sustained 10 percent permanent partial impairment to the 
 
            body as a whole as a result of the March 7, 1988, low back 
 
            injury (ex. 1, p. 6).  Contrary opinions concerning 
 
            impairment were not offered.  It is true that claimant has 
 
            some preexisting treatment for low back pain, but no medical 
 
            evidence linked the March 8, 1987 injury to prior problems.
 
            
 
                 It is found that the March 8, 1987, injury is a cause 
 
            of permanent disability.
 
            
 
                 Claimant's age, education, experience and permanent 
 
            impairment must be considered when assessing industrial 
 
            disability.
 
            
 
                 At the time of injury on March 8, 1987, claimant was a 
 
            49-year-old high school graduate with some post-high school 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            course work.  Claimant had experiences as an industrial 
 
            electrician, factory production worker, jet engine mechanic 
 
            and farm operator.
 
            
 
                 Claimant's impairment was rate 10 percent and he was 
 
            able to return to work for employer at the same job that he 
 
            had held prior to the March 8, 1987, injury.
 
            
 
                 It is found that as a result of the March 8, 1987, low 
 
            back injury, claimant sustained 15 percent industrial 
 
            disability.
 
            
 
                 The next issue concerns claimant's entitlement to 
 
            healing period benefits.  The evidence offered proves that 
 
            claimant was unable to work and under active medical 
 
            treatment as a result of the March 8, 1987 back injury 
 
            staring July 6, 1987 through December 7, 1987.  Claimant has 
 
            proven entitlement to healing period benefits during that 
 
            period in file number 858197.
 
            
 
                 The final issue to be resolved in file number 858197 
 
            concerns claimant's weekly benefit rate.
 
            
 
                 Claimant contends that the week of January 18, 1987, 
 
            should be excluded as claimant was on sick pay.  This 
 
            argument is rejected.  Short weeks are generally excluded as 
 
            not representative of claimant's actual earnings.  However, 
 
            claimant was in fact compensated for the lost time.
 
            
 
                 Claimant also alleges that the premium pay for shift 
 
            differential should be included in the gross weekly 
 
            earnings.  This argument is rejected as agency precedent 
 
            holds to the contrary.  See Burmeister v. Iowa Beef 
 
            Processors, II Iowa Industrial Commissioner Report 59, 64 
 
            (App. Dec. 1982).
 
            
 
                 After deleting the shift differential, the 13-week 
 
            gross earnings beginning with the week of March 8, 1987, 
 
            equal $6,002.10.  The average of the 13 weeks amounts to 
 
            $461.70 which converts to a weekly benefit rate of $286.58 
 
            for a married claimant with three exemptions.  Claimant's 
 
            benefit rate is found to be $286.58 in file number 858197.
 
            
 
                 The next series of issues concern file number 933329.
 
            
 
                 The first issue to be decided is whether claimant 
 
            sustained an injury to his low back on April 6, 1988, 
 
            arising out of and in the course of employment.  Claimant 
 
            testified that on April 6, 1988, he reinjured his low back 
 
            while lifting heavy cores at work which weighed up to 100 
 
            pounds.  The treating doctors documented a medical history 
 
            consistent with claimant's testimony.
 
            
 
                 A statement was taken by employer and offered as 
 
            exhibit 3.  The statement was not dated or signed.  It 
 
            recited an incident when claimant was riding a lawn mower 
 
            and suffered increased low back pain.  It is unclear when 
 
            the lawn mower incident occurred and the statement is, 
 
            therefore, given no weight.
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 The totality of the evidence presented leads to the 
 
            finding that on April 6, 1988, claimant injured his low back 
 
            while performing work for employer.
 
            
 
                 The next issue concerns whether the April 6, 1988, 
 
            injury is a cause of permanent disability.  The treating 
 
            orthopedic surgeon opined that the second injury did result 
 
            in 10 percent permanent partial impairment (ex. 1, p. 4).  
 
            
 
                 Dr. Bashara's opinion is found to be correct and 
 
            claimant has sustained his burden in proving that the April 
 
            6, 1988, injury is a cause of permanent disability.
 
            
 
                 The extent of industrial disability is the next issue 
 
            to be considered.  Factors to be considered include 
 
            claimant's age, education, experience, impairment, work 
 
            restrictions and employer's offer of work. 
 
            
 
                 At the time of injury on April 6, 1988, claimant was 
 
            age 50 with similar education and work experience as 
 
            previously discussed in file number 858197.  His impairment 
 
            for the second injury is 10 percent and his work 
 
            restrictions are best described as no lifting over 35 
 
            pounds, no stooping, no twisting and no bending.  Employer 
 
            failed to reemploy claimant due to the work injury and the 
 
            resulting work restrictions.  However, employer did make a 
 
            good faith offer of vocational rehabilitation.
 
            
 
                 Claimant did not obtain any real benefits from his 
 
            further schooling.  Claimant is now employed in a job as an 
 
            electrician that pays more than what he was earning at the 
 
            time of the April 6, 1988 injury.  However, the present 
 
            earnings alone do not dictate the extent of industrial 
 
            disability.  It is clear that the work restrictions prevent 
 
            claimant from accessing a distinct segment of the job 
 
            market.  Mr. Dugan's testimony that claimant would have 
 
            difficulty obtaining jobs with larger employers is 
 
            convincing.  
 
            
 
                 Having considered all the evidence received, it is 
 
            found that claimant is presently 40 percent industrially 
 
            disabled.  The prior 15 percent industrial disability 
 
            awarded in file number 858197 must be deducted from this 
 
            amount.  Claimant's award of industrial disability 
 
            attributable to file number 933329 is 25 percent.
 
            
 
                 It is noted that the parties offered considerable 
 
            evidence concerning the possibility of claimant being laid 
 
            off or of claimant obtaining a different job.  Evidence 
 
            concerning the possibility of future events occurring is far 
 
            too speculative to consider.  Should claimant suffer a lay 
 
            off with a resulting loss in actual wages he may be entitled 
 
            to apply for review-reopening as this would constitute a 
 
            change in condition not contemplated at the time of the 
 
            hearing.
 
            
 
                 The next issue concerns claimant's entitlement to 
 
            healing period benefits.  Claimant was off work starting 
 
            June 13, 1988 through November 6, 1988.  He worked light 
 
            duty starting November 7, 1988 through November 27, 1988.  
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            He was again taken off work on November 28, 1988, due to the 
 
            unavailability of light duty work.
 
            
 
                 It is found that claimant was off work and under active 
 
            medical care for the April 6, 1988, injury during the period 
 
            starting June 13, 1988 through November 6, 1988.  It is 
 
            found that claimant was temporarily partial disabled as a 
 
            result of the April 6, 1988, injury during the period 
 
            November 7, 1988 through November 27, 1988.
 
            
 
                 The final healing period begins on November 28, 1988.  
 
            The next issue concerns the end of the final healing period.  
 
            It is generally held that a healing period ends when 
 
            significant improvement from the condition is no longer 
 
            expected.  It is found that such occurred on January 12, 
 
            1989, when Dr. Bashara assigned permanent work restrictions 
 
            and directed the claimant to return only as needed (ex. 1, 
 
            p. 11).  Therefore, the final healing period begins on 
 
            November 28, 1988, and continued through January 12, 1989.  
 
            The causal connection of the healing periods is found to 
 
            exist based upon claimant's testimony and the medical 
 
            records offered which reveal that claimant was under active 
 
            medical care for the treatment of the April 6, 1988, back 
 
            injury during the periods in question in file number 933329.
 
            
 
                 The parties stipulated that April 11, 1989, is the 
 
            commencement date for payment of permanent partial 
 
            disability.  A deputy commissioner is free to make findings 
 
            different from a stipulation if supported by the record.  
 
            Permanent partial disability commences upon the termination 
 
            of healing period benefits.  Since the last day of healing 
 
            period payments is January 12, 1989, it follows that 
 
            permanent partial disability begins on January 13, 1989, in 
 
            file number 933329.
 
            
 
                 The final issue in file number 933329 concerns 
 
            claimant's weekly rate of compensation.  Claimant's gross 
 
            earnings for the 13 weeks prior to April 6, 1988, total 
 
            $5,973.20 with a weekly average of $459.48.  The week of 
 
            February 21, 1988 is excluded as short weeks are not 
 
            representative of claimant's average earnings.  The weeks 
 
            December 27, 1987 and January 3, 1988, are also excluded as 
 
            they contain holidays which also are not representative of 
 
            claimant's earnings. 
 
            
 
                 The average weekly wage of $459.48 results in a weekly 
 
            benefits rate of $289.94, based upon a status of married and 
 
            three exemptions.
 
            
 
                 It is found that claimant has proven entitlement to a 
 
            weekly benefit rate of $289.94 in file number 933329.
 
            
 
                 The parties joint stipulations filed May 8, 1991, are 
 
            approved and made part of the pleadings.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on April 6, 1988, 
 
            which arose out of and in the course of his employment.  
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            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 words "out of" refer to the cause or source of the 
 
            injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 
 
            68 N.W.2d 63 (1955). 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63.
 
            
 
                 Claimant has sustained his burden of proving that on 
 
            April 6, 1988, he sustained an injury to his low back 
 
            arising out of and in the course of employment.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injuries of March 8, 
 
            1987 and April 6, 1988, are 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). 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 Section 85.34(1), Code of Iowa, provides that healing 
 
            period benefits are payable to an injured worker who has 
 
            suffered permanent partial disability until (1) he has 
 
            returned to work; (2) is medically capable of returning to 
 
            substantially similar employment; or (3) has achieved 
 
            maximum medical recovery.  The industrial commissioner has 
 
            recognized that healing period benefits can be interrupted 
 
            or intermittent.  Willis v. Lehigh Portland Cement Company, 
 
            Vol. 2-1, State of Iowa Industrial Commissioner Decisions, 
 
            485 (1984).
 
            
 
                 Employer is responsible for temporary partial 
 
            disability pursuant to Iowa Code section 85.33(2), (3), and 
 
            (4).
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 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 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.   See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 Claimant has established in file number 858197 and file 
 
            number 933329 that the respective injuries are causally 
 
            connected to both permanent disability and temporary 
 
            disability.
 
            
 
                 In file number 858197, claimant has established 
 
            entitlement to healing period benefits beginning July 6, 
 
            1987 through December 7, 1987.
 
            
 
                 In file number 933329, claimant has established 
 
            entitlement to intermittent healing period benefits 
 
            beginning June 13, 1988 through November 6, 1988, and 
 
            November 28, 1988 through January 12, 1989.  Claimant is 
 
            also entitled to temporary partial disability during the 
 
            period November 7, 1988 through November 27, 1988.
 
            
 
                 Upon considering all the material factors, it is found 
 
            that the evidence in file number 858197 supports an award of 
 
            15 percent permanent partial disability which entitles the 
 
            claimant to recover 75 weeks of benefits under Iowa Code 
 
            section 85.34(2)(u).
 
            
 
                 Upon considering all the material factors, it is found 
 
            that the evidence in file number 933329 supports an award of 
 
            25 percent permanent partial disability which entitles the 
 
            claimant to recover 125 weeks of benefits under Iowa Code 
 
            section 85.34(2)(u).
 
            
 
                 The basis of compensation shall be the weekly 
 
                 earnings of the injured employee at the time of 
 
                 the injury.  Weekly earnings means gross salary, 
 
                 wages, or earnings of an employee to which such 
 
                 employee would have been entitled had the employee 
 
                 worked the customary hours for the full pay period 
 
                 in which the employee was injured, as regularly 
 
                 required by the employee's employer for the work 
 
                 or employment for which the employee was employed, 
 
                 computed or determined as follows and then rounded 
 
                 to the nearest dollar:
 
            
 
                 ...
 
            
 
                 6.  In the case of an employee who is paid on a 
 
                 daily, or hourly basis, or by the output of the 
 
                 employee, the weekly earnings shall be computed by 
 
                 dividing by thirteen the earnings, not including 
 
                 overtime or premium pay, of said employee earned 
 
                 in the employ of the employer in the last 
 
                 completed period of thirteen consecutive calendar 
 
                 weeks immediately preceding the injury.
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
            (Iowa Code section 85.36)
 
            
 
                 Short weeks are not included in the 13 weeks for 
 
            determining the rate under Iowa Code section 85.36(6); Lewis 
 
            v. Aalf's Mfg Co., I Iowa Industrial Commissioner Report 
 
            206, 207 (Appeal Decision 1980).
 
            
 
                 Night shift differential is considered premium pay that 
 
            is not used when calculating the average weekly wage.  
 
            Burmeister, II Iowa Industrial Commissioner Report 59, 64.
 
            
 
                 Claimant has established in file number 858197 that his 
 
            weekly benefits rate is $286.58.
 
            
 
                 Claimant has established in file number 933329 that his 
 
            weekly benefits rate is $289.94.
 
            
 
                 Iowa Code section 85.34(2) provides that compensation 
 
            for permanent partial disability shall begin at the 
 
            termination of the healing period.  Iowa Code section 
 
            85.34(2)(u) provides that compensation for a nonscheduled or 
 
            body as a whole injury shall be paid in relation to 500 
 
            weeks and the disability bears to the body as a whole.
 
            
 
                 The hearing deputy is free to make findings different 
 
            from a stipulation if supported by the record.  DeHeer v. 
 
            Clarklift of Des Moines, IAWC Decisions of the Iowa 
 
            Industrial Commissioner 179 (1989).
 
            
 
                 The evidence presented proves that the commencement 
 
            date for payment of permanent partial disability in file 
 
            number 933329 is January 13, 1989.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE, ORDERED:
 
            
 
                 Defendants are to pay claimant healing period benefits 
 
            in file number 858197 at the rate of two hundred eight-six 
 
            and 58/100 dollars ($286.58) for the period July 6, 1987 
 
            through December 7, 1987.
 
            
 
                 Defendants are to pay claimant seventy-five (75) weeks 
 
            of permanent partial disability in file number 858197 at the 
 
            rate of two hundred eight-six and 58/100 dollars ($286.58) 
 
            commencing December 8, 1987.
 
            
 
                 Defendants are to pay claimant intermittent healing 
 
            period benefits in file number 933329 at the rate of two 
 
            hundred eighty-nine and 94/100 dollars ($289.94) for the 
 
            periods June 13, 1988 through November 6, 1988 and November 
 
            28, 1988 through January 12, 1989.
 
            
 
                 Defendants are to pay claimant temporary partial 
 
            disability in file number 933329 for the period November 7, 
 
            1988 through November 27, 1988.
 
            
 
                 Defendants are to pay claimant one hundred twenty-five 
 
            (125) weeks of permanent partial disability in file number 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            933329 at the rate of two hundred eighty-nine and 94/100 
 
            dollars ($289.94) commencing January 13, 1989.
 
            
 
                 It is further ordered that defendants shall receive 
 
            credit for benefits previously paid.
 
            
 
                 It is further ordered that all accrued benefits are to 
 
            be paid in a lump sum.
 
            
 
                 It is further ordered that interest will accrue 
 
            pursuant to Iowa Code section 85.30. 
 
            
 
                 It is further ordered that the costs of this action are 
 
            assessed against defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 It is further ordered that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of May, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MARLON D. MORMANN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Larry Spaulding
 
            Attorney at Law
 
            801 Grand Ave STE 3700
 
            Des Moines, Iowa  50309
 
            
 
            Mr. Roger L. Ferris
 
            Attorney at Law
 
            1900 Hub Tower
 
            699 Walnut
 
            Des Moines, Iowa  50309
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      51100 51802 51803 53002
 
                      Filed May 21, 1991
 
                      Marlon D. Mormann
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LARRY ETHELL,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :  File Nos.  858197 & 933329
 
            3 M CORPORATION,              :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            NORTHWESTERN NATIONAL,        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            51100 51802 51803 53002
 
            
 
            Claimant sustained an injury to the low back which resulted 
 
            in surgery and 10 percent impairment.  At age 49, with 
 
            excellent experience as an industrial electrician, claimant 
 
            was reemployed by employer at same job.  Temporary total 
 
            disability and 15 percent industrial disability was awarded. 
 
            Claimant reinjured his back doing same job and incurred 
 
            another surgery with a 20 percent combined impairment and 
 
            35-pound lifting restriction.  Employer did not reemploy, 
 
            but offered vocational rehabilitation.  Claimant entered 
 
            school, but quit due to finding a higher paying job as 
 
            compared to the last injury.  Claimant awarded an additional 
 
            25 percent due to loss of access to job market 
 
            notwithstanding an increase in actual earnings.  Claimant 
 
            was motivated.
 
            Claimant's weekly rate of compensation excluded night shift 
 
            differential as it was a premium pay.  Weeks involving 
 
            illness were included as claimant was compensated for the 
 
            leave.  Short weeks and holidays were excluded as they did 
 
            not adequately represent claimant's earnings.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOHN K. SWANSON,
 
         
 
              Claimant,                               File No. 858390
 
                                        
 
         vs.                                       A R B I T R A T I O N
 
         
 
         PEPSI COLA BOTTLING COMPANY                  D E C I S I O N
 
         OF ESTHERVILLE, IOWA,
 
         
 
              Employer,                                  F I L E D
 
         
 
         and                                            MAY 25 1990
 
         
 
         NATIONAL UNION FIRE                   IOWA INDUSTRIAL 
 
         COMMISSIONER
 
         INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                             STATEMENT OF THE CASE
 
         
 
              This is a proceeding in  arbitration brought by John K. 
 
         Swanson, claimant, against Pepsi Cola Bottling Company, employer 
 
         (hereinafter referred to as Pepsi), and National Union Fire 
 
         Insurance company, insurance carrier, defendants, for workers' 
 
         compensation benefits as a result of an alleged injury on March 
 
         4, 1987.  On March 6, 1990, a hearing was held on claimant's 
 
         petition and the matter was considered fully submitted at the 
 
         close of this 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 and written exhibits were received during the hearing 
 
         from the parties.  The exhibits offered into the evidence are 
 
         listed in the prehearing report.
 
         
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
         
 
              1.  On March 4, 1987, claimant received an injury which 
 
         arose out of and in the course of his employment with Pepsi.
 
         
 
              2.  Claimant has been paid temporary total disability or 
 
         healing period benefits through June 14, 1988.
 
         
 
              3.  If the injury is found to have caused permanent 
 
         disability, the type of disability is an industrial disability to 
 
         the body as a. whole.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              4.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits shall be $420.21.
 
         
 
              5.  All requested medical benefits have been or will be paid 
 
         by defendants.
 
         
 
                                      ISSUE
 
         
 
              The only issue submitted by the parties for determination in 
 
         this proceeding is the causal connection of the claimed 
 
         disabilities to the work injury and the extent of claimant's 
 
         entitlement to disability benefits.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Having heard the testimony and considered all the evidence, 
 
         the deputy industrial commissioner finds as follows:.
 
         
 
              A credibility finding is necessary to this decision as 
 
         defendants place claimant's credibility at issue during 
 
         cross-examination as to the nature and extent of the injury and 
 
         disability.  From his demeanor while testifying, claimant is 
 
         found credible.
 
         
 
              Claimant worked for Pepsi from February 1970 until July 24, 
 
         1987.  Claimant began as a driver/route salesman.  He was 
 
         promoted to route manager and later to district manager.  The 
 
         injury herein occurred while claimant was a district manager.  As 
 
         a district manager, claimant supervised two route managers who in 
 
         turn supervised three or four driver/route salesmen.  Claimant 
 
         earned $735 per week in this job at the time of the injury.  
 
         Claimant received favorable performance appraisals from his 
 
         supervisors at Pepsi.  Claimant's testimony on his performance is 
 
         uncontroverted in the record.
 
         
 
              On or about March 4, 1987, claimant injured his low back 
 
         while stacking eight packs of 16 ounce Pepsi bottles for display 
 
         in a Hy Vee supermarket.  While turning to place one of the eight 
 
         packs on the display, claimant felt immediate low back pain, hip 
 
         pain and leg pain.  Claimant rated the pain as eight or nine on a 
 
         ten point scale.  Claimant said that before the injury he 
 
         experienced low back pain but that such pain never exceeded five 
 
         on a ten point scale.
 
         
 
              Claimant first began receiving treatment for low back and 
 
         leg pain in 1976 from a chiropractor.  Claimant described his 
 
         symptoms at that time as a tightness for which he would receive 
 
         periodic adjustments.  Claimant continued chiropractic care until 
 
         1986 when he began to see his family doctor, Brian W. Nelson, 
 
         M.D., when his chiropractor retired.  Claimant returned to Dr. 
 
         Nelson in January 1987 with complaints of low back and leg pain.  
 
         Claimant received physical therapy at that time upon a diagnosis 
 
         of mild degenerative disc disease and deconditioning.
 
         
 
              After the work injury, claimant returned to Dr. Nelson for 
 
         treatment.  At that time, Dr. Nelson first noted that claimant's 
 
         leg pain exceeded his low back pain which he stated was different 
 
         than claimant's previous symptoms.  Upon a diagnosis of acute 
 
         exacerbation and probable herniated disc, claimant was referred 
 
         for a CT scan which confirmed the diagnosis of a herniated disc 
 
         at the L4-5 level of claimant's spine.  Claimant continued 
 
         working and received conservative care until July 1987 but 
 
         the.treatment failed to improve claimant's condition and he 
 
         discontinued working.  Claimant was referred for evaluation to 
 
         Ensor E. Transfeldt, M.D., an orthopedic surgeon.  After his 
 
         examination in September 1987, Dr. Transfeldt agreed with the 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         diagnosis of a herniation and following more testing, he 
 
         recommended surgery.  In January 1988, Dr. Transfeldt performed 
 
         low back surgery upon claimant called a laminectomy and multi 
 
         level fusion of the low back.  Following a long recovery, 
 
         claimant was released to light duty on June 14, 1988.  However, 
 
         claimant was not allowed to return to work by Pepsi.  On October 
 
         28, 1988, Dr. Transfeldt indicated that claimant had reached 
 
         maximum healing.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              As of the date of the hearing, claimant had not returned to 
 
         work in any capacity and remains unemployed.  Claimant said he 
 
         was told by Pepsi at one time that there would be a job waiting 
 
         for him but none has been offered.  Claimant has made a 
 
         reasonable effort to seek replacement employment.  Claimant has 
 
         been referred to several places by a vocational rehabilitation 
 
         consultant retained by defendants.
 
         
 
              As a result of the work injury of March 4, 1987, claimant 
 
         has a significant permanent partial impairment to the body as a 
 
         whole. Claimant is permanently restricted from activity 
 
         consisting of repetitive bending, lifting, twisting, and can only 
 
         occasionally lift in excess of 20 pounds.  Claimant is unable to 
 
         stand or walk for any prolonged period of time.  Claimant has 
 
         difficulty riding in automobiles.  With reference to the extent 
 
         of physical impairment, the combined opinions of Dr. Transfeldt, 
 
         along with those of John Walker, M.D., and John Dougherty, M.D., 
 
         two other orthopedic surgeons, clearly demonstrated permanent 
 
         partial impairment.  Unfortunately, there was no consensus of 
 
         opinion as to the exact percentages.  Dr. Transfeldt used a 
 
         standard under "Minnesota statutes."  Dr. Walker arrived at a 34 
 
         percent permanent partial impairment and Dr. Dougherty did not 
 
         provide a numerical rating.  However, all agreed to the type of 
 
         permanent restrictions that claimant would have to be placed 
 
         under for the rest of his life.
 
         
 
              With reference to the causal connection of claimant's 
 
         permanent partial impairment to the work injury, the combined 
 
         views of Dr. Transfeldt and Dr. Dougherty, along with the clear 
 
         views of claimant's family physician, were convincing.  All of 
 
         these doctors noted an increase in symptoms at the time of the 
 
         work injury and that the symptoms were different than what 
 
         claimant had experienced before.  Although claimant had 
 
         significant prior back problems, he was never given a permanent 
 
         partial impairment rating nor was his activities restricted until 
 
         after the work injury in this case.  It was clear that the work 
 
         injury was the precipitating factor leading to surgery and 
 
         claimant's current physical impairment.
 
         
 
              As a result of the work injury of March 4, 1987, claimant 
 
         has suffered a total loss of his earning capacity and remains 
 
         unemployable in the competitive labor market.  Claimant has not 
 
         returned to work either at Pepsi or anywhere else since the 
 
         surgery.  Claimant has made a laudable but unsuccessful effort to 
 
         return to work by completing all referrals made for him by 
 
         vocational counselors.  Claimant has applied on his own to 
 
         numerous employers in the area of his residence with absolutely 
 
         no success.  Outside of Pepsi, claimant's only past employment 
 
         has been in manual labor jobs in the construction industry and in 
 
         a few railroad jobs which claimant says are no longer available 
 
         to him.  Claimant's condition prevents a return to work to any of 
 
         the jobs he has held in the past.
 
         
 
              Claimant is 49 years of age.  His age deters from the 
 
         prospect of successful retraining but is too young for 
 
         retirement. At 49 years of age he should be in the most 
 
         productive years of his working life.  Consequently, his loss of 
 
         earnings due to a disability is much more severe than would be 
 
         the case for a younger or an older individual.  Claimant has a 
 
         high school education and had good grades while in high school.  
 
         However, retraining does not appear a viable option at the 
 
         present time. Stanley Thorp.testified at hearing and appeared 
 
         very credible. Thorp opined from his review of claimant's work 
 
         history and skills testing that claimant is not competitively 
 
         employable.  The vocational consultants retrained by defendants 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         made no opinion as to claimant's employability but only made a 
 
         passing reference that claimant's depression may deter in his 
 
         ability to seek replacement employment.  The view that claimant's 
 
         depression is playing a role in claimant's unemployability was 
 
         not convincing.  Claimant appears to have been angry only with 
 
         the counselor who failed to provide him with a path toward 
 
         reemployment.  It is the opinion of this deputy commissioner that 
 
         the counselor unfairly assumed that claimant possessed this 
 
         attitude when interviewing with prospective employers.  How a 
 
         counselor can arrive at this conclusion without talking to the 
 
         prospective employers is unknown.  The unsuccessful referral 
 
         efforts adds considerable weight to the finding that claimant is 
 
         indeed unemployable.  It is therefore found that to the extent 
 
         claimant does suffer from depression of some sort, this has no 
 
         effect on his loss of earning capacity.  It is unnecessary to the 
 
         issues in this case to decide whether or not an episode of 
 
         confusion at the hospital during claimant's surgery in January of 
 
         1988 was due to alcoholism or to claimant's depression.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Despite a wide variety of jobs available at Pepsi, Pepsi has 
 
         not offered claimant any sort of gainful employment.  Apparently, 
 
         even claimant's employer believes claimant is not employable in 
 
         any capacity.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
               I.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American, Inc., 
 
         290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
         288 N.W.2d 181 (Iowa 1980).
 
              
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish, v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient along to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Asse 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). 
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In the case sub judice, the above principles were applied to 
 
         arrive at the conclusion that claimant's work injury indeed was a 
 
         permanent aggravation of a preexisting condition as it was a 
 
         significant precipitating factor leading to claimant's current 
 
         permanent disability.  The lack of a specific finding as to 
 
         percentage of permanent partial impairment is unnecessary in 
 
         assessing disability in an industrial disability case.  The focus 
 
         of attention is not on a particular percentage of functional loss 
 
         but a percentage of loss of earning capacity as will be discussed 
 
         below.  The critical findings in industrial disability cases 
 
         concern claimant's work/activity restrictions.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              II.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  As the claimant has shown that 
 
         the work injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors. These factors 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.  
 
         Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  See 
 
         Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 
         28, 1985).
 
         
 
              In the case sub judice, although claimant may have had some 
 
         back problems before March 4, 1987, defendants have failed to 
 
         demonstrate any rational means to apportion an award of 
 
         industrial disability.  Apportionment of disability between a 
 
         preexisting condition and an injury is proper only when there is 
 
         some ascertainable disability which existed independently before 
 
         the injury occurred.  Varied Enterprises, Inc. v. Sumner, 353 
 
         N.W.2d 407 (Iowa 1984).  There was no ascertainable disability 
 
         prior to March 4, 1987.
 
         
 
              Apportionment is not possible in a permanent total 
 
         disability case because the benefits are not payable for a 
 
         definite time period under Iowa Code section 85.34(3), but are 
 
         paid to claimant indefinitely during the period of his 
 
         disability.  Therefore, when the record presents the proverbial 
 
         "straw that broke the camel's back," permanent total disability 
 
         benefits will be fully awarded. See Loftus v. Waterloo Community 
 
         School District, Case No. 777678, Arbitration Decision filed 
 
         March 27, 1989; Brown v. Nissen Corporation, Arbitration Decision 
 
         filed June 29, 1988.
 
         
 
              Furthermore, after claimant establishes a causal connection 
 
         between the claimed disability and the work injury, claimant does 
 
         not have the burden to establish the lack of a preexisting 
 
         condition.  There is no agency precedent as to this precise point 
 
         of law  and this conclusion was drawn from the general law of 
 
         torts in which a plaintiff in a personal injury case is not 
 
         normally charged with the burden as to the actual apportionment 
 
         of damages.  Any burden of that nature must be assumed by the 
 
         defendant since the defendant is the party standing to gain by 
 
         litigating the apportionment issue.  Two damages in tort actions, 
 
         section 15.34(1)(a); Wonder Life Company v. Liddy, 207 N.W.2d 27 
 
         (Iowa 1973).  If no apportionment can be made, the defendant is 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         responsible for the entire damage.  Becker v. D & E Distributing 
 
         Company, 24.7 N.W.2d 727, 731 (Iowa 1976).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Finally, Pepsi has refused to return its injured worker to 
 
         the work place.  A refusal by an employer to reemploy the injured 
 
         worker is evidence of lack of employability.  2 Larson, section 
 
         57.61, Pages 10-167.90-95; Sunbeam Corp. v. Bates, 609 S.W.2d 102 
 
         (1980) ; Army & Air Force Exchange Service v. Neuman, 278 F.Supp 
 
         865 (W.D. La 1967) ; Leonardo v. Uncas Manufacturing Company, 77 
 
         R.I. 245, 75 A 2d 188 (1950).
 
         
 
              It should be noted that the automatic burden shifting to the 
 
         defense in permanent total disability cases (what is termed the 
 
         "odd-lot doctrine") was not plead in this case and was not 
 
         applied in this case to arrive at this award.  Claimant simply 
 
         proved by a preponderance of the evidence that he is 
 
         unemployable.
 
         
 
              Therefore, it was found that claimant has suffered a total 
 
         loss of earning capacity as a result of the work injury.  Based 
 
         upon such a finding, claimant is entitled as a matter of law to 
 
         permanent total disability benefits under Iowa Code section 
 
         85.34(3) from the date of injury for an indefinite period of time 
 
         in the future.  Although claimant might be retrained in the 
 
         future, the current commissioner has stated that we are only to 
 
         assess claimant's current disability, not his future disability. 
 
         The potential of success of any retraining effort is not to be 
 
         considered at this time.  Umpress v. Armstrong Rubber Co., Appeal 
 
         Decision filed August 27, 1987; Stewart v. Crouse Cartage Co., 
 
         Appeal Decision filed February 20, 1987.  This agency is 
 
         certainly available upon proper application by the defense in the 
 
         future to review such matters should successful retraining and 
 
         placement occur.
 
         
 
                                      ORDER
 
         
 
              1.  Defendants shall pay to claimant permanent total 
 
         disability benefits at the rate of four hundred twenty and 21/100 
 
         dollars ($420.21) per week from March 4, 1987.  These weekly 
 
         benefits shall continue indefinitely during the period of 
 
         claimant's disability.
 
         
 
              2.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for weekly 
 
         benefits previously paid.
 
         
 
              3.  Defendants shall pay the interest on weekly benefits 
 
         awarded herein as set forth in Iowa Code section 85.30.
 
              
 
              4.  Defendants shall pay the cost of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
              
 
              5.  Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Signed and filed this 25th day of May, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       LARRY P. WALSHIRE
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Joseph L. Fitzgibbons
 
         Attorney at Law
 
         108 North 7th St
 
         Estherville, IA  51334
 
         
 
         Ms. Judith Ann Higgs
 
         Attorney at Law
 
         701 Pierce St, Suite 200
 
         P 0 Box 3086
 
         Sioux City, IA  51102
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1807
 
                                            Filed May 25, 1990
 
                                            LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOHN K. SWANSON,
 
         
 
              Claimant,
 
                                                       File No. 858390
 
         vs.
 
                                                    A R B I T R A T I O N
 
         PEPSI COLA BOTTLING COMPANY
 
         OF ESTHERVILLE, IOWA,                         D E C I S I O N
 
         
 
              Employer,
 
         
 
         and
 
         
 
         NATIONAL UNION FIRE
 
         INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1807
 
         
 
              Permanent total disability benefits awarded to a district 
 
         manager of a soft drink bottling company.  A crucial element in 
 
         the award was the fact that the company refused to return 
 
         claimant to work in any capacity.  It was held that this was 
 
         evidence of unemployability.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JAMES FORD,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 858396
 
            CGA BUILDERS,                 :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            IMT INSURANCE COMPANY,        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon claimant's 
 
            petition filed January 7, 1988.  Claimant allegedly 
 
            sustained an injury arising out of and in the course of 
 
            employment with CGA Builders when he fell from a ladder on 
 
            October 22, 1987.  He now seeks benefits under the Iowa 
 
            Workers' Compensation Act from that alleged employer (the 
 
            existence of an employment relationship being denied) and 
 
            its insurance carrier, IMT Insurance Company.
 
            
 
                 Hearing on the arbitration petition was had in Des 
 
            Moines, Iowa, on January 9, 1990.  The record consists of 
 
            claimant's testimony and joint exhibits A through L, 
 
            inclusive.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report, the parties have 
 
            stipulated:  that if defendants are liable for permanent 
 
            partial disability, claimant has suffered an industrial 
 
            disability to the body as a whole and the proper 
 
            commencement date is February 15, 1988; that the proper rate 
 
            of weekly benefits is $140.71; that affirmative defenses are 
 
            not applicable.
 
            
 
                 Issues presented for resolution include:  whether an 
 
            employment relationship existed between claimant and CGA 
 
            Builders on or about October 22 or 23, 1987; whether 
 
            claimant sustained an injury arising out of and in the 
 
            course of that alleged employment on or about that date; 
 
            whether the alleged injury caused either temporary or 
 
            permanent disability and the extent thereof; the extent of 
 
            claimant's entitlement to medical benefits (it being 
 
            stipulated that the fees charged for medical services and 
 
            supplies are fair and reasonable and incurred for reasonable 
 
            and necessary treatment, but causal connection to the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            alleged work injury is disputed); taxation of costs.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all of the evidence, finds:
 
            
 
                 Claimant was 37 years of age at the time of hearing and 
 
            had completed the eleventh grade.  However, he has since 
 
            obtained his General Equivalency Diploma, had further 
 
            training during an eight-year stint with the United States 
 
            Marines, has learned carpentry at a technical school and, at 
 
            the time of hearing, was attending classes at a community 
 
            college seeking a degree in commercial art.  However, he 
 
            anticipated that at his present rate of progress, obtaining 
 
            this degree would take approximately 4-5 years.
 
            
 
                 Claimant's work history includes silk screening shirts, 
 
            working on call for various contractors, laying floor tile 
 
            on Navy ships, laying floor tile in retail establishments 
 
            for a small contractor, and concrete work and framing.
 
            
 
                 In the five weeks before the claimed work injury, 
 
            claimant entered into a relationship with one Dennis Paul 
 
            Russo wherein claimant supplied labor for the construction 
 
            of various projects, especially garages and concrete work.  
 
            Russo at that time operated as a construction business, 
 
            obtaining most of his contracts from another individual, one 
 
            Dwight Roquet.
 
            
 
                 Claimant was paid an hourly wage for his labor, but not 
 
            at a set rate.  Rather, the rate of pay varied by project.  
 
            The formula used was to divide net profits by the total 
 
            hours worked by all workers on a particular job; this 
 
            quotient was then multiplied by the number of hours 
 
            contributed by claimant to determine his total wage for the 
 
            project.  During the five weeks claimant worked, his hourly 
 
            rate varied from $4.69 to $9.14 and he worked from 15 to 
 
            42.5 hours, earning an average gross weekly wage of $222.73.
 
            
 
                 Unlike Russo, claimant was not in business as a 
 
            contractor.  Claimant furnished only a hammer and nail pouch 
 
            in addition to his labor, while Russo furnished such tools 
 
            as staple gun, table saw, trucks, air compressor, 
 
            wheelbarrows, wood forms, picks and shovels.  Russo 
 
            determined where and when crews worked (claimant worked with 
 
            at least one other individual, one Roger Hanson).  Russo 
 
            agreed in his deposition testimony of November 30, 1989, 
 
            that he bore responsibility for performance of the work 
 
            under Roquet and had the option of discharging claimant or 
 
            anyone else who failed to perform the work to his 
 
            satisfaction.  Although claimant was sufficiently skilled so 
 
            as not to constantly need direct and immediate supervision, 
 
            Russo took it upon himself in at least some respects to 
 
            control precisely how the work was performed:  for example, 
 
            he very specifically (if unsuccessfully) instructed claimant 
 
            in how to operate an extension ladder.
 
            
 
                 Claimant lacked credibility as a witness.  In 
 
            particular, he confessed to a long history of failing to 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            report income on his federal tax returns.  Although the 
 
            record does not indicate that claimant has been convicted of 
 
            tax fraud, his confession of this criminal conduct in open 
 
            court is the functional equivalent for impeachment purposes.  
 
            Little weight has been assigned his testimony except to the 
 
            extent it is otherwise corroborated.
 
            
 
                 Claimant described the work injury as occurring on a 
 
            Thursday (a standard calendar shows that October 22, 1987 
 
            was a Thursday) while he was stapling plywood to a garage 
 
            from a ladder.  The ladder slipped and he fell, landing on 
 
            his elbow.  He immediately made complaint of the injury to 
 
            Russo and promptly visited the Beaverdale Clinic where notes 
 
            of Robert C. Larson, M.D., reflect that a laceration was 
 
            sutured on that date.
 
            
 
                 According to claimant, his back began hurting the next 
 
            morning and he found himself unable to move upon awakening.  
 
            Claimant worked the next week, but his back remained sore.  
 
            He was seen at Charter Hospital in Des Moines on October 31 
 
            and referred to Sinesio Misol, M.D., a Diplomate of the 
 
            American Board of Orthopaedic Surgery.  Dr. Misol first saw 
 
            claimant on November 23, 1987.
 
            
 
                 A spinal CT scan was performed at Charter Community 
 
            Hospital and read by Carter S. Young, D.O., on November 17.  
 
            Dr. Young's impression was of moderately severe facet 
 
            arthropathy at L5-S1 (the disc was normal in appearance) and 
 
            mild diffuse annular bulges at L3-4 and L4-5 without 
 
            evidence of disc herniation.
 
            
 
                 Dr. Misol wrote on April 22, 1988 that claimant showed 
 
            no objective abnormality and was advised to continue 
 
            physical therapy.  When claimant failed to improve, he 
 
            ordered an MRI examination which revealed degenerative disc 
 
            disease localized to L3-4 with no evidence of nerve 
 
            impingement or other difficulty.  Dr. Misol noted that 
 
            claimant had shown little evidence of being under severe 
 
            pain, but assessed him as having a five percent physical 
 
            impairment of the spine "mostly based on his symptoms."  Dr. 
 
            Misol opined that the degenerative disc disease might or 
 
            might not be a result of claimant's fall at work and there 
 
            would be no way of answering that question one way or the 
 
            other.  He did not contemplate or advise any surgical 
 
            treatment.  Dr. Misol reviewed the CT scan of October 31 and 
 
            found it essentially within normal limits.  His initial 
 
            impression was of back pain post-fall without objective 
 
            abnormality.
 
            
 
                 Claimant was dissatisfied with Dr. Misol's conclusions 
 
            and was referred by his attorney to Jerome G. Bashara, M.D.  
 
            Dr. Bashara, a board-certified orthopaedic surgeon, 
 
            testified by deposition on December 29, 1989.
 
            
 
                 In the meantime, claimant next worked for a janitorial 
 
            business beginning February 15, 1988 and remaining so 
 
            employed for some 2-3 months.  He claims it was necessary to 
 
            quit that job because of back pain.  It is more likely that 
 
            claimant quit that job because of his involuntary 
 
            hospitalization for alcoholism from April 6, 1988 until 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            early in May of that year.  Soon after his release from the 
 
            hospital, claimant accepted work as a laborer with a 
 
            business known as SKT.  About two weeks into that job, 
 
            claimant "moved wrong" and his back "went out on [him]" 
 
            causing him to be "on [his] back for a few weeks."
 
            
 
                 Thereafter, claimant saw Dr. Bashara for the first time 
 
            on August 5, 1988.  The history given to Dr. Bashara 
 
            concerning this incident was:  "Approximately one month ago 
 
            he attempted returning to construction work for 2 weeks and 
 
            developed an increase in low back pain.  He quit working at 
 
            that time."
 
            
 
                 It is clear to this observer that Dr. Bashara was not 
 
            aware that claimant had been disabled as a result of this 
 
            incident for a matter of weeks, or he would surely have 
 
            referred to this in his chart notes; he did not mention this 
 
            incident at all in his deposition testimony, despite the 
 
            rather dramatic consequences of "moving wrong."
 
            
 
                 In about August 1988, claimant began working for an 
 
            enterprise known as ABC Signs where he remained employed 
 
            through the date of hearing.
 
            
 
                 Dr. Bashara concluded that claimant had sustained a 
 
            mild compression fracture at T12 and a disc injury at L3-4.  
 
            He attributed both problems to the work injury and assigned 
 
            claimant a 10 percent permanent impairment rating.  
 
            Restrictions imposed at the time of claimant's first 
 
            appointment included no excessive bending, stooping or 
 
            twisting of the lower back and no lifting over 50 pounds.  
 
            It is not clear that these restrictions were intended to be 
 
            permanent in nature, as that question was never discussed 
 
            during deposition testimony.
 
            
 
                 Dr. Bashara did not believe that claimant suffered from 
 
            degenerative disc disease as opposed to a traumatic injury.  
 
            He explained his difference of opinion with Dr. Misol on the 
 
            basis of the October 31, 1989 Charter Hospital x-rays which 
 
            did not show any evidence of narrowing or degenerative of 
 
            any disc.  Dr. Misol had stated that the injury at T12 was 
 
            either an old fracture or the result of Scheuermann's 
 
            disease; Dr. Bashara disagreed, but noted that there is no 
 
            way to determine the exact age of such a fracture from 
 
            looking at x-rays or slides.
 
            
 
                 Dr. Bashara noted muscle spasms present on August 5, 
 
            1988 and March 10 and October 10, 1989.  Dr. Misol's chart 
 
            notes do not reflect similar findings when claimant was 
 
            treated by that physician.
 
            
 
                 Dr. Bashara's review of the November 17, 1987 CT scan 
 
            indicated a mild bulging at L3-4.  Dr. Misol's review of an 
 
            MRI showed no evidence of disc herniation or protrusion of 
 
            any significance.  That MRI was performed on December 14, 
 
            1987 and was read by radiologist Dr. De Vries as showing 
 
            mild, noncompressive protrusions at L3-4 and L4-5, moderate 
 
            degeneration of L3-4 and questionable presence of mild to 
 
            moderate facet arthropathy at L4-5 and L5-S1.
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 Claimant was also seen for evaluation by Peter D. 
 
            Wirtz, M.D., an orthopaedic practitioner, on October 16, 
 
            1989.  Claimant at that time complained of low back pain 
 
            with left leg radiation.  Dr. Wirtz diagnosed degenerative 
 
            disc disease at L3-4, L4-5.  He opined that claimant had not 
 
            suffered a fracture at T12.  The doctor noted that claimant 
 
            as early as Dr. Misol's examination of November 23, 1987 had 
 
            full range of motion without neurological condition and 
 
            concluded that he had reached maximum medical benefit at 
 
            that examination.  He found that claimant's present symptoms 
 
            related to his degenerative disc disease and did not relate 
 
            to any one specific prior incident, concluding that the work 
 
            injury had not left claimant with any functional impairment.  
 
            He did, however, suggest restrictions somewhere between 30 
 
            and 50 pounds of activity based on degenerative lumbar disc.
 
            
 
                                conclusions of law
 
            
 
                 Defendants dispute the existence of an employment 
 
            relationship between claimant and CGA Builders.  However, 
 
            the evidence clearly shows the existence of an employment 
 
            relationship.  Apparently, defendants believe claimant was 
 
            an independent contractor working with Mr. Russo.  An 
 
            independent contractor is a person who contracts with 
 
            another to do something for him, but who is not controlled 
 
            by the other, nor subject to the other's right to control 
 
            with respect to his physical conduct in the performance of 
 
            that contract.  Meredith Publishing Co. v. IESC, 232 Iowa 
 
            666, 6 N.W.2d 6 (1942).  In this case, claimant was paid an 
 
            hourly wage (although it varied from job to job) based on 
 
            the sale of his labor alone.  CGA Builders as personified by 
 
            Dennis Russo provided all the major equipment, contracted 
 
            with customers directly and controlled to some extent the 
 
            manner in which the work was performed (as will be recalled, 
 
            claimant was specifically instructed as to how to operate an 
 
            extension ladder).  Russo conceded that he had the right to 
 
            discharge claimant, and there is no indication that claimant 
 
            was in a position to hire his own assistants in performing 
 
            job duties.  The evidence clearly shows that an employment 
 
            relationship existed at the time of the work injury.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on October 22, 
 
            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 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 
 
            68 N.W.2d 63 (1955). 
 
            
 
                 "An injury occurs in the course of the employment when 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Musselman v. 
 
            Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). 
 
            
 
                 Despite claimant's lack of credibility, he has also 
 
            established that he suffered a work injury on October 22, 
 
            1987.  He promptly reported his fall to Russo and the 
 
            results of that fall were physically manifested by a 
 
            laceration that required suturing on the same day.  There is 
 
            no hint of evidence indicating that claimant was not in the 
 
            course of his employment while stapling plywood from a 
 
            ladder on the project he and Russo were both working on.  
 
            Claimant's injury has been shown to have arisen out of and 
 
            in the course of his employment with CGA Builders.
 
            
 
                 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.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of October 22, 
 
            1987 is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 As discussed below, claimant has failed to establish 
 
            his entitlement to permanent disability.  Pursuant to Iowa 
 
            Code sections 85.32 and 85.33, temporary total disability of 
 
            more than 14 days is payable in effect from the injury until 
 
            the employee has returned to work or is medically capable of 
 
            returning to substantially similar employment, whichever 
 
            first occurs.  Dr. Wirtz was of the view that claimant had 
 
            reached maximum medical benefit on November 23, 1987, which 
 
            would be appropriate in determining his healing period under 
 
            section 85.34 if permanency benefits were awarded.  However, 
 
            maximum medical improvement, one of the tests for ending a 
 
            healing period, is not a test for determining the end of 
 
            temporary total disability.  Claimant returned to work (at 
 
            another job) on February 15, 1988.  Claimant did establish 
 
            that his inability to work from October 31, 1987 through 
 
            February 14, 1988 was causally related to his fall and a 
 
            flare-up of back symptoms.  Temporary total disability 
 
            benefits shall be awarded pursuant to the parties' 
 
            stipulation.
 
            
 
                 There is indeed a conflict in the medical evidence as 
 
            to permanent disability.  Drs. Misol and Wirtz find no 
 
            causal connection between the work injury and what they see 
 
            as degenerative disc disease.  Dr. Bashara, also a 
 
            well-qualified physician, feels otherwise.  Recalling that 
 
            it is claimant's burden to establish his entitlement to 
 
            permanency benefits, it should be noted at this time that 
 
            Dr. Bashara's opinion is substantially weakened because of 
 
            the inadequate history claimant gave him concerning the 
 
            incident during employment with SKT as a laborer.  Dr. 
 
            Bashara thought that claimant merely had increased back 
 
            pain.  This, in the view of the present observer, 
 
            considerably understates the significance of an incident 
 
            that caused claimant to be on his back for a period of 
 
            weeks.  Both the work injury and the SKT incident occurred 
 
            prior to claimant seeing Dr. Bashara for the first time.  
 
            The record does not indicate that claimant had radiological 
 
            studies performed after the SKT incident; in any event, it 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            requires a leap of faith to connect claimant's current 
 
            symptomatology to the work incident given this intervening 
 
            event.  Given claimant's lack of credibility, that leap is 
 
            too great.
 
            
 
                 It is held that claimant has failed to meet his burden 
 
            of proof in establishing a causal nexus between his current 
 
            condition and the work injury.
 
            
 
                 The following medical bills appear to be causally 
 
            related to the work injury (as opposed to the subsequent 
 
            incident with SKT) and compensable:
 
            
 
                 Mid Iowa X-ray and Nuclear Meds, P.C.   $  270.00
 
                 Haines Prosthetics                         173.00
 
                 Charter Hospital                         1,526.00
 
                 Dr. Larson -- Beaverdale Clinic             80.00
 
                 Orthopedic Associates                      245.00
 
                 Dr. Bashara -- office visit                 55.00
 
                 Total                                   $2,349.00
 
            
 
                 The following expenses are remote or have not been 
 
            shown to relate to the time period prior to the SKT 
 
            incident:
 
            
 
            
 
                 Mercy Hospital                          $  511.00
 
                 Charter Outpatient                         265.00
 
                 Total                                   $  776.00
 
            
 
            Those expenses shall not be awarded.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay unto claimant fifteen point two 
 
            eight six (15.286) weeks of temporary total disability 
 
            commencing October 31, 1987 at the stipulated rate of one 
 
            hundred forty and 71/100 dollars ($140.71) and totalling two 
 
            thousand one hundred fifty and 89/100 dollars ($2,150.89).
 
            
 
                 As these benefits have accrued, they shall be paid in a 
 
            lump sum together with statutory interest thereon pursuant 
 
            to Iowa Code section 85.30.
 
            
 
                 Defendants shall pay the following medical providers:
 
            
 
                 Mid Iowa X-ray and Nuclear Meds, P.C.   $  270.00
 
                 Haines Prosthetics                         173.00
 
                 Charter Hospital                         1,526.00
 
                 Dr. Larson -- Beaverdale Clinic             80.00
 
                 Orthopedic Associates                      245.00
 
                 Dr. Bashara -- office visit                 55.00
 
                 Total                                   $2,349.00
 
            
 
                 The costs of this action shall be assessed to 
 
            defendants pursuant to 343 IAC 4.33.
 
            
 
                 Defendants shall file claim activity reports as 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            requested by this agency pursuant to 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Barry Moranville
 
            Attorney at Law
 
            West Bank Building, Suite 212
 
            1601 22nd Street
 
            W. Des Moines, Iowa  50265
 
            
 
            Mr. Cecil L. Goettsch
 
            Mr. Brian L. Campbell
 
            Attorneys at Law
 
            1100 Des Moines Building
 
            Des Moines, Iowa  50309
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1402.10; 5-1801; 5-1803
 
                           Filed November 26, 1990
 
                           DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            JAMES FORD,    :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :         File No. 858396
 
            CGA BUILDERS,  :
 
                      :      A R B I T R A T I O N
 
                 Employer, :
 
                      :         D E C I S I O N
 
            and       :
 
                      :
 
            IMT INSURANCE COMPANY,   :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            1402.10
 
            Claimant provided labor and a hammer for a contractor who 
 
            arranged all jobs, provided all major tools, had the right 
 
            to hire and fire (claimant did not) and who controlled the 
 
            manner in which the work was performed.  Claimant was paid a 
 
            varying hourly wage (net profit was divided by total hours 
 
            worked by entire crew; the quotient was then multiplied by 
 
            claimant's hours to determine his wage for a given project).  
 
            HELD:  Claimant established an employment relationship.
 
            
 
            5-1801; 5-1803
 
            Claimant lacked credibility and suffered an intervening 
 
            accident that put him "on his back" for several weeks.  The 
 
            only physician to find causal relationship to permanent 
 
            impairment did not have an adequate history as to this 
 
            incident.  Claimant proved entitlement to temporary total, 
 
            but not permanent partial disability.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         HARVEY L. LENNIE,
 
         
 
              Claimant,
 
                                                    File No. 858608
 
         vs.
 
                                                 A R B I T R A T I O N
 
         3 M COMPANY,
 
                                                    D E C I S I O N
 
              Employer,
 
                                                       F I L E D
 
         and
 
                                                      JUN 8 1989
 
         NORTHWESTERN NATIONAL INSURANCE,
 
                                              IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                 INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Harvey L. Lennie, against 3M Company, employer, and Northwestern 
 
         National Insurance, insurance carrier, defendants, to recover 
 
         benefits as a result of an alleged injury sustained on May 31, 
 
         1987.  This matter came on for hearing before the deputy 
 
         industrial commissioner in Des Moines, Iowa, on April 26, 1989. 
 
         The record consists of the testimony of claimant; claimant's 
 
         exhibits 1 through 12 and 14 through 22; and defendants exhibits 
 
         1 through 10.
 
         
 
                                    ISSUES
 
         
 
              The issues the parties set out in the prehearing report for 
 
         resolution are:
 
         
 
              1.  Whether claimant's injury arose out of and in the course 
 
         of his employment;
 
         
 
              2.  Whether claimant's disability is causally connected to 
 
         his injury;
 
         
 
              3.  The nature and extent of claimant's permanent 
 
         disability; and
 
         
 
              4.  Whether claimant is entitled to benefits.under 85.27.
 
         
 
                           REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified that he was first employed in 1958 or 
 
         1959, and that his jobs at that time and until his employment on 
 
         June 17, 1974 with the defendant employer were basically manual 
 
                                                
 
                                                         
 
         labor jobs.  Claimant indicated that in several of these pre-June 
 
         17, 1974 jobs he was exposed to noisy environments.  Claimant 
 
         stated that prior to June 17, 1974, he had noticed no hearing 
 
         problem nor had he ever had to his knowledge a hearing test with 
 
         these employers.  Claimant recalled no injuries or accidents 
 
         prior to June 17, 1974 except that in 1969 or 1970 he was knocked 
 
         out and his nose was broken when he was hit on the right side of 
 
         his head at work and in 1970 he was hit on the head with a pipe 
 
         in a bar fight.  Claimant emphasized that he had no hearing loss 
 
         as a result of these injuries.  Claimant related that in April 
 
         1974 he had a preemployment physical before he began his 
 
         employment with defendant employer on June 17, 1974 and that the 
 
         ear exam showed negative.  Claimant acknowledged that the hearing 
 
         test given at that time involved a clock or watch being placed 
 
         next to each ear. Claimant testified that to the best of his 
 
         knowledge he did not have a hearing problem at the time of this 
 
         exam in April of 1974, although on his health questionnaire on 
 
         that date claimant answered yes to the question involving 
 
         "Impaired hearing, noise in ear, running ear, or other ear 
 
         diseases?"  (Def. Ex. 2)
 
         
 
              Claimant described the various jobs that he performed for 
 
         defendant employer up to his last day of work on May 30, 1987. 
 
         Claimant indicated that these jobs in different capacities 
 
         involved working with, near or around noisy to very extraordinary 
 
         noisy machinery up to eight or more hours a day, seven days a 
 
         week.  Claimant indicated that during the period 1975 to 1980 in 
 
         which he was supervisor, he also spent all of his time in the 
 
         plant around the noisy equipment except for approximately two 
 
         hours a day in the office.  The claimant testified that the 
 
         employer gave a hearing test every other year beginning in 1974 
 
         or 1976 and that his hearing test results in 1985 were the first 
 
         indication of a hearing problem.  Claimant stated at that time 
 
         the employer suggested that he see a doctor as to his hearing 
 
         problem. Claimant stated that the test results indicated bad 
 
         hearing in his right ear and that he should wear ear plugs.  
 
         Claimant acknowledged that 3M recommended ear plugs but they were 
 
         not mandatory.  Claimant stated that with ear plugs you cannot 
 
         hear anything and indicated that you must listen to the machines 
 
         to see if something is wrong with them.  Claimant suggested that 
 
         wearing ear plugs could result in a safety problem.  Claimant 
 
         stated it was recommended that he obtain a hearing aid since the 
 
         hearing in his right ear was almost gone and the left ear was 
 
         bad.  Claimant contended that he did not get hearing aids because 
 
         he could not afford them.  Claimant was extensively questioned 
 
         concerning the various tests taken involving the work equipment 
 
         and the noise levels and the estimated hours per day in which he 
 
         would be exposed to the particularly noisy equipment.  Claimant 
 
         testified that he disagreed with the nature of the testing.  
 
         Claimant contended that he was exposed for longer periods of time 
 
         than shown by the test regarding the particular machine tested. 
 
         Claimant also felt that the testing was not done in relation to 
 
         the particular machine in close enough proximity to where the 
 
         claimant would be operating the machine or in contact with it. 
 
         Claimant was questioned as to the Pella Medical Center clinical 
 
                                                
 
                                                         
 
         records of January 18, 1975, which contained a note:  "Had septal 
 
         repair by Dr. Updegraff.  Deaf R. ear."  A notation in the 
 
         nurse's notes at the Knoxville Hospital dated January 6, 1982, 
 
         which indicated:  "This pt. also admits to being deaf in the R. 
 
         ear but does not use a hearing aid & states that he is allergic 
 
         to Tetnus."  Claimant denied that he told the nurse that he was 
 
         deaf. Claimant also contended that he was not deaf in his right 
 
         ear in 1975 or 1982 and does not know how that information got 
 
         into his medical records.
 
         
 
              On January 13, 1988, Michael G. Genz, M.Sc., C.C.C., wrote:
 
         
 
                   The enclosed audiological evaluation for January 8, 
 
              1988, would still indicate Mr. Lennie to have hearing 
 
              sensitivity relatively unchanged since 1986.  A profound 
 
              hearing impairment is still evident in the right ear, and 
 
              this is also substantiated by a negative Stenger test under 
 
              earphone.  Speech discrimination ability remains excellent 
 
              in the left ear, but could not be established in the right 
 
              ear due to the severity of the hearing impairment.  The 
 
              enclosed acoustic impedance test result for January 8th 
 
              would still indicate normal shaped tympanograms for both 
 
              ears.  Acoustic reflexes are present when sound stimulus is 
 
              presented to the left ear, but absent when sounds are 
 
              presented to the right ear as would be consistent with this 
 
              unilateral profound hearing impairment.
 
         
 
              .....He was assured that hearing sensitivity remains 
 
              generally within the normal range in the left ear.
 
         
 
         (Defendants' Exhibit 6)
 
         
 
              On March 22, 1988, Mr. Genz wrote:
 
         
 
              Per the tables contained within this chapter, Mr. Lennie 
 
              would be described as having a 100% hearing impairment in 
 
              the right ear and a 0% hearing impairment in the left ear.  
 
              The tables would then indicate Mr. Lennie to have a 16.8% 
 
              binaural hearing impairment.
 
         
 
         (Defendants' Exhibit 3)
 
         
 
              The Pella Medical Center notes of January 18, 1975, note the 
 
         following:  "Had septal repair by Dr. Updegraff.  Def R. ear."  
 
         The nurse's notes and history of the Knoxville Area Community 
 
         Hospital had the following notations on January 6, 1982, at which 
 
         time the claimant was admitted to the hospital for acute distress 
 
         due to lower back pain:  "This pt. also admits to being deaf in 
 
         the R. ear but does not use a hearing aid and states that he is 
 
         allergic to Tetnus."
 
         
 
                          APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on May 30, 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).
 
         
 
              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)
 
         
 
              Chapter 85B.8 provides:
 
         
 
                   A claim for occupational hearing loss due to excessive 
 
              noise levels may be filed six months after separation from 
 
              the employment in which the employee was exposed to 
 
              excessive noise levels.  The date of the injury shall be the 
 
              date of occurrence of any one of the following events:
 
         
 
                   1.  Transfer from excessive noise level employment by 
 
              an employer.
 
         
 
                   2.  Retirement.
 
         
 
                   3.  Termination of the employer-employee relationship.
 
         
 
                   The date of injury for a layoff which continues for a 
 
              period longer than one year shall be six months after the 
 
     
 
                     
 
                                                         
 
              date of the layoff.  However, the date of the injury for any 
 
              loss of hearing incurred prior to January 1, 1981 shall not 
 
              be earlier than the occurrence of any one of the above 
 
              events.
 
         
 
              Iowa Rule of Civil Procedure 80 provides:
 
         
 
                   (a)  Pleadings need not be verified unless special 
 
              statutes so require and, where a pleading is verified, it is 
 
              not necessary that subsequent pleadings be verified unless 
 
              special statutes so require.  Counsel's signature to every 
 
              motion, pleading, or other paper shall be deemed a 
 
              certificate that:  Counsel has read the motion, pleading, or 
 
              other paper; that to the best of counsel's knowledge, 
 
              information, and belief, formed after reasonable inquiry, it 
 
              is well grounded in fact and is warranted by existing law or 
 
              a good faith argument for the extension, modification, or 
 
              reversal of existing law; and that it is not interposed for 
 
              any improper purpose, such as to harass or cause an 
 
              unnecessary delay or needless increase in the cost of 
 
              litigation.  If a motion, pleading, or other paper is not 
 
              signed, it shall.be stricken unless it is signed promptly 
 
              after the omission is called to the attention of the pleader 
 
              or movant.  If a motion, pleading, or other paper is signed 
 
              in violation of this rule, the court, upon motion or upon 
 
              its own initiative, shall impose upon the person who signed 
 
              it, a represented party, or both, an appropriate sanction, 
 
              which may include an order to pay the other party or parties 
 
              the amount of the reasonable expenses incurred because of 
 
              the filing of the motion, pleading, or other paper, 
 
              including a reasonable attorney fee.  The signature of a 
 
              party who is not represented by counsel shall impose a 
 
              similar obligation on such party.
 
         
 
              The claimant's petition filed November 27, 1987 alleged an 
 
         injury date in paragraph 4 as "ongoing."  On December 1 a 
 
         telephone call was made by this agency for claimant to provide a 
 
         specific date of injury.  This information was not provided until 
 
         the parties stipulated to a date in the prehearing report.
 
         
 
              The parties, in their prehearing report, stipulated to a May 
 
         31, 1987 injury date.  The claimant testified that his last day 
 
         of work with defendant employer was May 30, 1987.  In another 
 
         workers' compensation petition filed on March 30, 1989 the 
 
         claimant is alleging a back injury on May 30, 1987.  All matters 
 
         involving claimant's back injury have been bifurcated from this 
 
         hearing loss claim and will be considered at another date.
 
         
 
              85B.8 is determinative of the date of injury and sets out 
 
         therein that the date of injury shall be the date of occurrence 
 
         of anyone of the following events:  (1) transfer from excessive 
 
         noise level,employment by an employer; (2) retirement; and (3) 
 
         termination of the employer-employee relationship.  There is no 
 
         evidence that the claimant's employment has been affected by any 
 
         of those three items which are jurisdictional.  The record 
 
                                                
 
                                                         
 
         indicates that the claimant is no longer actively working at 
 
         defendant employer due to his back injury.  Although this issue 
 
         was not raised by any party, the undersigned deputy can raise a 
 
         jurisdictional question at any time.  The undersigned finds that 
 
         this agency does not have jurisdiction based on the above 
 
         statute. In fact, there is no occupational hearing loss because 
 
         there is no injury.  Without an injury, there is no loss.  
 
         Therefore, there remains no issue of an injury which arises out 
 
         of and in the course of the claimant's employment.
 
         
 
              85B.8 indicates that "a claim for occupational hearing loss 
 
         due to excessive noise levels maybe filed six months after 
 
         separation from the employment in which the employee was exposed 
 
         to excessive noise level."  (Emphasis added.)  Although the 
 
         parties stipulated to an injury date, the undersigned need not 
 
         accept the stipulation of the parties if the evidence and records 
 
         show facts by law which would be contrary to the parties' 
 
         stipulation.  As referred to earlier, we, in fact, have no injury 
 
         because none of the three statutory requirements were met.
 
         
 
              If we assume for purposes of argument.,that there is an 
 
         injury date of May 31, 1987, the claimant has not met the 
 
         jurisdiction requirements because his petition was filed November 
 
         27, 1987, less than six months after the May 31, 1987 date 
 
         stipulated by the parties.  Although this issue was not raised in 
 
         the prehearing order nor the hearing assignment order by any 
 
         party, the undersigned deputy can raise this jurisdictional 
 
         question on its own.  The court finds on this second point that 
 
         it does not have jurisdiction.
 
         
 
              If the claimant had met the jurisdictional requirements, the 
 
         medical evidence conclusively indicates that the claimant was 
 
         deaf in his right ear.  The claimant told medical personnel in 
 
         January 1975, approximately seven months after he began 
 
         employment with defendant employer, and again in January 1982, 
 
         when complaining of back problems, that he was deaf in the right 
 
         ear.  There is no reason not to believe the claimant's statements 
 
         were true.  We, therefore, have no impairment to the right ear 
 
         that arose out of and in the course of his employment.
 
         
 
              The audiologist's letter of March 22, 1988, which was 
 
         offered as exhibit 1 by the claimant and as exhibit 3 by the 
 
         defendants, states, in part:  "Mr.  Lennie would be described as 
 
         having a 100% impairment in the right ear and a 0% hearing 
 
         impairment in the left ear."  The undersigned finds that claimant 
 
         has no impairment in the left ear.
 
         
 
              This matter has been litigated by the parties resulting in a 
 
         hearing taking considerable time of this agency and the 
 
         attorneys. Two jurisdictional questions have been raised for the 
 
         first time by the undersigned deputy which jurisdictional 
 
         deficiencies should have been known by a reasonable scrutiny of 
 
         the facts and the records which should have resulted in no action 
 
         having been filed in the first instance.  This agency has a 
 
         considerable number of cases on file that have merit for which 
 
                                                
 
                                                         
 
         the agency and its deputy industrial commissioners are making a 
 
         concerted effort to hear and rule thereon. it is cases such as 
 
         these that take the deputies' and the agency's time causing delay 
 
         in a hearing for those cases having merit.  Rule 80 was to serve 
 
         a purpose in preventing such filings.  It appears the message is 
 
         not yet clear to the practicing bar that Rule 80 was adopted to 
 
         discourage ungrounded or spurious filings, undue expenses, 
 
         harassment, unnecessary delay or needless increase in costs of 
 
         litigation.  It puts an obligation on counsel to look into the 
 
         facts on behalf of their clients and make a reasonable 
 
         determination.  The undersigned finds that had the claimant's 
 
         attorney complied with Rule 80, this action should not have been 
 
         filed, and having been filed should not have reached the hearing 
 
         and decision-making stage.  The court costs will be assessed 
 
         against the claimant in this case, but the claimant's attorney 
 
         should individually and personally pay one-half but not less than 
 
         $100 of the claimant's costs, whichever is greater, and shall 
 
         hold the claimant free from personal responsibility or obligation 
 
         as to those costs.  If the claimant has already paid the same, 
 
         claimant's attorney shall reimburse the claimant accordingly.
 
         
 
                             FINDINGS OF FACT
 
         
 
              1.  Claimant began working for the defendant employer June 
 
         17, 1974.
 
         
 
              2.  Claimant's original notice and petition alleging an 
 
         occupational hearing loss was filed on November 27, 1987, less 
 
         than six months after the alleged injury date.
 
         
 
              3.  Claimant failed to establish an injury date as provided 
 
         in 85B.8.
 
         
 
              4.  Claimant filed his petition prematurely as provided by 
 
         85B.8 as any claims for occupational hearing loss due to 
 
         excessive noise levels may be filed six months after separation 
 
         from employment in which the employee was exposed to excessive 
 
         noise levels.
 
         
 
              5.  Claimant failed to prove that he incurred any 
 
         compensable hearing loss in his right or left ear while employed 
 
         with defendant employer.
 
         
 
              6.  Claimant failed to prove any compensable hearing loss 
 
         impairment in his right or left ear resulting from his cumulative 
 
         work injury on May 31, 1987.
 
         
 
              7.  Claimant was deaf in his right ear on January 18, 1975.
 
         
 
              8.  The medical evidence shows claimant has 0 percent 
 
         impairment in his left ear.
 
         
 
                              CONCLUSIONS OF LAW
 
         
 
              Claimant has not proved by the greater weight of evidence 
 
                                                
 
                                                         
 
         that he incurred a compensable occupational hearing loss that 
 
         arose out of and in the course of his employment with defendant 
 
         employer.
 
         
 
              This agency does not have jurisdiction of this matter as 
 
         provided under Iowa Code section 85B.8.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant take nothing from this proceeding.
 
         
 
              That claimant pay the costs of this action.
 
         
 
              As provided under Iowa Rules of Civil Procedure, Rule 80, a 
 
         sanction is imposed upon claimant's attorney, namely:  claimant's 
 
         attorney shall individually and personally pay one-half of the 
 
         costs for which the claimant is responsible, or one hundred 
 
         dollars ($100.00) of the costs, whichever is greater, and if the 
 
         claimant has already paid the court costs, then said attorney 
 
         shall reimburse claimant as provided herein.
 
         
 
              The matter of claimant's back injury, which is a part of 
 
         this file, has been bifurcated from this occupational hearing 
 
         loss issue and the file is to be kept in the active status 
 
         pending final resolution of this additional claim.
 
         
 
              Signed and filed this 8th day of June, 1989.
 
         
 
                    
 
                                                         
 
         
 
         
 
         
 
                                            BERNARD J. O'MALLEY
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Artis I. Reis
 
         Attorney at Law
 
         3939 Grand Ave
 
         Des Moines, IA  50312
 
         
 
         Mr. Roger L. Ferris
 
         Mr. Joseph A. Quinn
 
         Attorneys at Law
 
         1900 Hub Tower
 
         699 Walnut
 
         Des Moines, IA  50309
 
         
 
         Mr. Harold B. Heslinga
 
         Attorney at Law
 
         118 N. Market St
 
         Oskaloosa, IA  52577
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            HARVEY LENNIE,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 858608
 
            3M COMPANY,                   :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            NORTHWESTERN NATIONAL         :
 
            INSURANCE COMPANY,            :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                 This is a proceeding in arbitration brought by Harvey 
 
            Lennie, claimant, against his employer, 3M Company, and its 
 
            insurance carrier, Northwestern National Insurance, to 
 
            recover benefits under the Iowa Workers' Compensation Act as 
 
            a result of an injury occurring on May 30, 1988.
 
            
 
                 This matter came on for a hearing before the 
 
            undersigned deputy industrial commissioner at the office of 
 
            the Iowa Industrial Commissioner in Des Moines, Iowa on 
 
            October 29, 1990.  Briefs were to be filed simultaneously on 
 
            November 9, 1990, and the case was considered fully 
 
            submitted at that time.
 
            
 
                 The record in this case consists of the testimony of 
 
            the claimant, a representive of the insurance company, and a 
 
            vocational rehabilitation counselor; joint exhibits 1 
 
            through 48; defendants' submission of costs for taxation; a 
 
            bill from Neuro-Associates, P.C., for $100.00; a bill from 
 
            Mercy Hospital Medical Center for $65.00; various 
 
            prescription receipts totaling $152.60; proof of payment by 
 
            claimant for the Mercy Medical and Neuro-Associate bills; 
 
            and, mileage incurred by claimant.
 
            
 
                                      issues
 
            
 
                 According to the Hearing Assignment Order and the 
 
            prehearing report the following issues are presented for 
 
            resolution:
 
            
 
                 1.  Whether claimant's disability is causally 
 
                 related to his injury,
 
            
 
                 2.  Whether claimant is entitled to temporary 
 
                 total or healing period benefits,
 
            
 
                 3.  Whether claimant is entitled to permanent 
 
                 partial or permanent total disability benefits,
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 4.  Whether claimant is entitled to medical 
 
                 benefits under Iowa Code section 85.27.
 
            Although both parties addressed the issue of whether 
 
            claimant is an odd-lot employee, this issue was not listed 
 
            on the hearing assignment order, and will not be addressed 
 
            in this decision.  See, Joseph Presswod v. Iowa Beef 
 
            Processors, (Appeal Decision filed November 14, 1986), 
 
            holding an issue not noted on the hearing assignment order 
 
            is an issue that is waived.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard all the testimony, 
 
            reviewed all the exhibits, and having observed the claimant, 
 
            submits the following findings of fact:
 
            
 
                 Claimant was employed by 3M Company in Knoxville from 
 
            mid-1974 (shortly after 3M Company opened its Knoxville 
 
            plant) through May 30, 1987.  During his employment tenure 
 
            with the defendant company, claimant has held a myriad of 
 
            positions, including job assignments as a machine operator; 
 
            assistant coater/treater operator; forklift driver; 
 
            compounder; working supervisor; and quality control.
 
            
 
                 The injury which gives rise to this litigation occurred 
 
            on or about May 30, 1987.  On that date claimant was working 
 
            in the quality control area, earning $10.58/hour.  Claimant 
 
            was pulling trash bags across the floor, stepped on a drum 
 
            lid on the floor, slipped and fell, injuring his lower back.  
 
            He reported his injury to his supervisor, and was treated by 
 
            Steve Havener, M.D., at the Knoxville Area Community 
 
            Hospital on May 31, 1987.  Claimant complained of hip and 
 
            back pain, and x-rays taken at the hospital indicated 
 
            degenerative changes in the back.  Claimant was to stay off 
 
            work for 48 hours, and was instructed to contact a doctor 
 
            the following Monday to determine his work status.  (See 
 
            Joint Exhibit 31).
 
            
 
                 Claimant saw Thomas A. Carlstrom, M.D., on June 9, 
 
            1987.  Dr. Carlstrom ordered a new CT Scan, which showed a 
 
            lesion of the right L5-S1 disc.  He recommended that 
 
            claimant consider surgical treatment but continued to treat 
 
            claimant on a conservative basis for the next one and 
 
            one-half months.  At that time, Dr. Carlstrom indicated that 
 
            claimant would not be able to retain a job which required 
 
            heavy exertion, and indicated claimant had sustained a five 
 
            percent (5%) body as a whole due to this latest episode on 
 
            May 30, 1987.  He did not feel that surgical intervention 
 
            would alter the impairment rating, and did not disagree with 
 
            claimant's decision not to seek surgical treatment at that 
 
            time.  (See, Jt. Ex. 9, Page 1).
 
            
 
                 Claimant did not return to work, but continued to see 
 
            Dr. Carlstrom.  On or about October 8, 1987, claimant's 
 
            weekly benefits were changed from healing period to 
 
            permanent partial disability benefits.
 
            
 
                 On April 6, 1988, Dr. Carlstrom corresponded with the 
 
            adjusting company for the defendant insurance company, and 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            indicated that claimant would be able to work presently.  He 
 
            also restricted claimant's lifting duties of approximately 
 
            25-30 pounds maximum and 15 pounds repetitive.  Claimant was 
 
            to avoid prolonged sitting or standing.
 
            
 
                 On August 2, 1988, Dr. Carlstrom again corresponded 
 
            with the adjusting company.  Claimant was continuing to have 
 
            symptoms without any improvement and Dr. Carlstrom stated 
 
            the following opinion:
 
            
 
                 In my opinion, this injury should be considered 
 
                 related to the 1986 injury.  I have little 
 
                 information in my file about symptoms between the 
 
                 surgical procedure date in 1985 and the 1986 
 
                 injury.  If he remained asymptomatic throughout 
 
                 that time, one would have to say this should be 
 
                 entirely related to the 1986 injury.  If he 
 
                 continued with symptoms between 1985 and 1986, I 
 
                 would relate it to a prior injury.
 
            
 
                 Claimant underwent a lumbar laminectomy on August 4, 
 
            1988.  Claimant continued under Dr. Carlstrom's care until 
 
            February 19, 1989, when Dr. Carlstrom released claimant to 
 
            work in the quality control area of 3M.  On February 17, 
 
            1989, Dr. Carlstrom voiced the following opinion:
 
            
 
                 I think this patient is experiencing a fairly good 
 
                 result, though he still is quite symptomatic.  I 
 
                 gave him a return to work slip and would expect 
 
                 that he will tolerate heavy physical exertion 
 
                 poorly, but light exertion satisfactorily.  I 
 
                 would recommend a lifting restriction of about 30 
 
                 pounds maximum, and 20 pounds for repetitive work, 
 
                 and would recommend that he not be required to sit 
 
                 or stand greater than one hour in one position.  I 
 
                 will see him back in six weeks to see how he is 
 
                 doing after this return to work, and if further 
 
                 changes are required, I'll let you know.  I think 
 
                 he probably has reached maximum benefits of 
 
                 healing at the present time, and should be 
 
                 considered to have an impairment rating of about 
 
                 12-15 percent of the body as a whole.
 
            
 
                 The impairment was to be considered in addition to the 
 
            five percent impairment rating given by Dr. Carlstrom 
 
            immediately following the May 30, 1987 injury.
 
            
 
                 Finally, correspondence dated April 13, 1989 from Dr. 
 
            Carlstrom to Barbara Chaldy of Management Consulting and 
 
            Rehab Services, Inc., stated the following opinion:
 
            
 
                 I think he has probably reached maximum benefits 
 
                 of healing at this time and I think he has 
 
                 experienced about a 20 percent of the body 
 
                 impairment, based upon his postoperative status, 
 
                 and diminished range of motion of his back.
 
            
 
                 I think that he should be able to return to work 
 
                 on a light duty basis.  He is well motivated, and 
 
                 I would think that we should restrict his lifting 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 to 35 pounds on a maximum basis, and to 15-20 
 
                 pounds on a repetitive basis.  He also needs to 
 
                 avoid stooping, bending or twisting.
 
            
 
                 The exhibits indicate that on November 20, 1989, Dr. 
 
            Carlstrom referred claimant to Robert C. Jones, M.D.  Dr. 
 
            Jones rendered a second opinion regarding claimant's 
 
            physical status, and opined that claimant sustained a 20 
 
            percent impairment, and that unless claimant was able to 
 
            find a light duty job, he would be unable to work, given his 
 
            occupational and educational background.  He also indicated 
 
            it might be possible that claimant needed another fusion at 
 
            the L4-5 level.
 
            
 
                 Barbara Chaldy, a rehabilitation consultant, met with 
 
            claimant on several occasions.  She recommended that 
 
            claimant seek a vocational evaluation from the Iowa State 
 
            Department of Vocational Rehabilitation (ISDVR).  Claimant 
 
            was evaluated by the department and was admitted to the 
 
            program on November 13, 1989.  He was discharged two days 
 
            later, because he could not withstand the physical and 
 
            mental demands of the program, and the counselors felt he 
 
            was not able to participate in seeking employment at this 
 
            time.  Specifically, Lynn Bursell, a counselor with ISVRF, 
 
            recommended that claimant undergo further medical 
 
            intervention; pursue his GED at a local college or through 
 
            adult education; reapply for social security; and, check 
 
            into the Mercy Back Clinic.  Claimant, who is 50 years old, 
 
            is currently pursuing his GED.
 
            
 
                 At the time of the hearing, claimant had not returned 
 
            to work, and was drawing social security disability 
 
            benefits.
 
            
 
                 Claimant has several other physical problems which 
 
            limit his employability.  Specifically, he has heart 
 
            problems; is deaf in his left ear, and suffers from cluster 
 
            headaches.  He is missing part of a finger, and cannot 
 
            completely close his right hand.  He also has a problem with 
 
            a great toe on his left foot.
 
            
 
                                conclusions of law
 
            
 
                 The first issue to be resolved is whether there is a 
 
            causal relationship between the alleged injury and the 
 
            disability.
 
            
 
                 As a general rule, the question of causal connection is 
 
            essentially within the domain of expert testimony.  See, 
 
            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 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal 
 
            connection, such testimony may be coupled with nonexpert 
 
            testimony to show causation and be sufficient to sustain an 
 
            award.  Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 
 
            N.W.2d 911, 915 (1966).  Such evidence does not, however, 
 
            compel an award as a matter of law.  Anderson v. Oscar Mayer 
 
            & Co., 217 N.W.2d 531, 536 (Iowa 1974).  To establish 
 
            compensability, the injury need only be a significant 
 
            factor, not the only factor causing the claimed disability.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 
 
            1980).
 
            
 
                 Claimant has a history of back injuries.  In 1983, he 
 
            underwent a lumbar laminectomy at the L5-S1 level; a 
 
            herniated disc was removed by Robert Hayne, M.D.
 
            
 
                 In 1985, Dr. Carlstrom performed a lumbar laminectomy 
 
            at the L5-S1 interspace.  Claimant was given a five percent 
 
            functional impairment to the body as a whole as a result of 
 
            the procedure.  He returned to work after the surgery.  In 
 
            1986, claimant received conservative treatment consisting of 
 
            physical therapy for back pain.  Dr. Carlstrom was the 
 
            treating physican.
 
            
 
                 As noted earlier, Dr. Carlstrom relates claimant's 
 
            current problem to 1986, when claimant's back condition 
 
            became increasingly symptomatic:
 
            
 
                 As you are aware, I've seen Harvey Lennie on 
 
                 several occasions since 1985 and performed a 
 
                 lumbar laminectomy in July of 1985.  He was able 
 
                 to return to work after the surgery, having a fair 
 
                 amount of discomfort on occasion, but 
 
                 precipitously became worse in the Spring of 1986 
 
                 and has been symptomatic since then with right L-5 
 
                 radicular pain and mild neurologic deficit.  We 
 
                 have treated him conservatively since that time 
 
                 with little improvement in his symptoms and a CT 
 
                 scan performed since that time has shown 
 
                 degenerative changes principally with potential 
 
                 for a herniated disc at L-5, S-1.  He is 
 
                 continuing to have symptoms without any 
 
                 improvement despite his rather low level of 
 
                 activity and because of that I intend to bring him 
 
                 into the hospital next week for a myelogram.  In 
 
                 my opinion, this injury should be considered 
 
                 related to the 1986 injury.  I have little 
 
                 information in my file about symptoms between the 
 
                 surgical procedure date in 1985 and the 1986 
 
                 injury.  If he remained asymptomatic throughout 
 
                 that time, one would have to say this should be 
 
                 entirely related to the 1986 injury.  If he 
 
                 continued with symptoms between 1985 and 1986, I 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 would relate it back to a prior injury.
 
            
 
                 On April 13, 1987, Dr. Carlstrom imposed a 20 percent 
 
            functional impairment to claimant's body as a whole, 
 
            resulting from his postoperative status and diminished range 
 
            of motion of his back.  (See Jt. Ex. 20, p. 1).
 
            
 
                 Of particular controversy are the medical services 
 
            rendered by Robert Jones, M.D.  Dr. Jones saw claimant on 
 
            November 29, 1989, and rendered his opinion that claimant's 
 
            physical impairment was "in the range of 20 percent...."  
 
            Dr. Jones further stated that "unless he can find a light 
 
            duty job somewhere, I think he is unable to work, given his 
 
            occupational and educational background."  (Jt. Ex. 23, p. 
 
            1).
 
            
 
                 Claimant testified that after the 1986 injury, he 
 
            returned to work in the quality control department of 3M, 
 
            and was able to perform his job duties without difficulty.  
 
            (Transcript p. 29).
 
            
 
                 Claimant had undergone medical treatment for his back 
 
            prior to this latest episode.  He had been restricted to 
 
            light duty work at 3M, and apparently performed without 
 
            difficulty his duties as a quality control worker.  There is 
 
            no evidence in the record that claimant had prior medically 
 
            imposed lifting restrictions in addition to the five percent 
 
            (5%) permanent partial impairment rating given to him in 
 
            1985.
 
            
 
                 Clearly, claimant's physical condition has changed 
 
            since the fall in May of 1987, although claimant was 
 
            released to light duty work.  His permanent impairment has 
 
            increased substantially, and he has a lifting restriction of 
 
            some magnitude.
 
            
 
                 After reviewing all of the evidence, it seems clear to 
 
            the undersigned that claimant's disability is causally 
 
            related to his injury of May 1987.
 
            
 
                 The next issue to be determined is whether claimant is 
 
            entitled to medical benefits.
 
            
 
                 Iowa Code section 85.27 provides, in part:
 
            
 
                    For purposes of this section, the employer is 
 
                 obliged to furnish reasonable services and 
 
                 supplies to treat an injured employee, and has the 
 
                 right to choose the care.  The treatment must be 
 
                 offered promptly and be reasonably suited to treat 
 
                 the injury without undue inconvenience to the 
 
                 employee.  If the employee has reason to be 
 
                 dissatisfied with the care offered, the employee 
 
                 should communicate the basis of such 
 
                 dissatisfaction to the employer, in writing if 
 
                 requested, following which the employer and the 
 
                 employee may agree to alternate care reasonably 
 
                 suited to treat the injury.  If the employer and 
 
                 employee cannot agree on such alternate care, the 
 
                 commissioner may, upon application and reasonable 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 proofs of the necessity therefor, allow and order 
 
                 other care.  In an emergency, the employee may 
 
                 choose the employee's care at the employer's 
 
                 expense, provided the employer or the employer's 
 
                 agent cannot be reached immediately.
 
            
 
                 Having previously found that claimant's injury is 
 
            causally related to the alleged disability, defendants are 
 
            liable for medical expenses incurred by claimant for 
 
            treatment of the same.  Claimant is also awarded $.21/mile 
 
            for mileage incurred for medical treatment.
 
            
 
                 The evidence shows that claimant asked Dr. Carlstrom to 
 
            refer him to Dr. Jones, and Dr. Carlstrom obliged.  Referral 
 
            by an authorized physician to another practioner routinely 
 
            is found to be authorized.
 
            
 
                 Therefore, defendants are responsible for the payment 
 
            of Dr. Jones' bill, and all other medical bills incurred as 
 
            a result of claimant's 1987 injury.
 
            
 
                 The next issue presented by the parties for resolution 
 
            is whether claimant is entitled to temporary total/healing 
 
            period benefits, or permanent partial or total disability 
 
            benefits.
 
            
 
                 As a general rule, temporary total benefits are paid to 
 
            an injured worker where no permanent disability is 
 
            anticipated; healing period benefits are paid where a 
 
            permanent disability is a result of the work injury.
 
            
 
                 Iowa Code section 85.34(1) provides that if an employee 
 
            has suffered a personal injury causing permanent partial 
 
            disability, the employer shall pay compensation for a 
 
            healing period from the day of the injury until (1) the 
 
            employee returns to work; or (2) it is medically indicated 
 
            that significant improvement from the injury is not 
 
            anticipated; or (3) until the employee is medically capable 
 
            of returning to substantially similar employment.
 
            
 
                    By the very meaning of the phrase, a person 
 
                 with a "permanent disability" can never return to 
 
                 the same physical condition he or she had prior to 
 
                 the injury....See, 2 A. Larson, The Law of 
 
                 Workmen's Compensation section 57.12 (1981).  The 
 
                 healing period may be characterized as that period 
 
                 during which there is reasonable expectation of 
 
                 improvement of the disabling condition," and ends 
 
                 when maximum medical improvement is reached.  Boyd 
 
                 v. Hudson Pulp & Paper Corp., 177 So.2d 331, 330 
 
                 (Fla.1965).  That is, it is the period "from the 
 
                 time of the injury until the employee is as far 
 
                 restored as the permanent character of his injury 
 
                 will permit.  Winn Drilling Company v. Industrial 
 
                 Commission, 32 Ill.2d 144, 145-6, 203 N.E.2d 
 
                 904,905-6 (1965).  See also W. Schneider, 
 
                 Schneider's Workman's Compensation, section 2308 
 
                 (1957).  Thus, the healing period generally 
 
                 terminates "at the time the attending physician 
 
                 determines that the employee has recovered as far 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 as possible from the effects of the injury.  Winn, 
 
                 203 N.E. at 906.
 
            
 
            Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60, 65 
 
            (Iowa 1981).
 
            
 
                 The record conclusively establishes that claimant 
 
            sustained a permanent injury as a result of the May 1987 
 
            injury; he is therefore entitled to healing period benefits 
 
            during the timeframe in which he was recouperating.  The 
 
            extent of claimant's entitlement to weekly compensation of 
 
            healing period benefits is disputed.  Claimant claims his 
 
            healing period ran from May 31, 1987 through April 6, 1988; 
 
            and, from August 4, 1988 through February 14, 1989.  
 
            Defendants argue May 31, 1987 through October 7, 1987; and 
 
            August 4, 1988 through February 13, 1989.
 
            
 
                 Defendants base their argument on a letter, dated 
 
            October 8, 1987 from Dr. Carlstrom to David Sjulin (an 
 
            adjustor for the adjusting company) indicating that claimant 
 
            should seek employment in a lighter duty situation on a 
 
            permanent basis.  (See Jt. Ex. 9, p. 1).  However, Dr. 
 
            Carlstrom's office notes indicate otherwise.  An entry dated 
 
            December 7, 1989 indicates that the letter to Mr. Sjulin was 
 
            not a work release as it was not communicated to the patient 
 
            as such.  (See Jt. Ex. 30, p. 10).
 
            
 
                 On April 6, 1988, Dr. Carlstrom released claimant to 
 
            return to work, and imposed lifting restrictions.  (See Jt. 
 
            Ex. 10, p. 1).  It is found that claimant's first healing 
 
            period began on May 31, 1987, and ended on April 6, 1988.
 
            
 
                 Dr. Carlstrom performed a lumbar laminectomy on August 
 
            4, 1988, and issued claimant a return to work slip for 
 
            February 20, 1989.  The undersigned finds the second healing 
 
            period to run from August 4, 1988 through February 19, 1989.
 
            
 
                 The last issue to be decided is the extent of 
 
            industrial disability claimant has sustained.
 
            
 
                 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 basic 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, Thirty-fourth Biennial Report of the 
 
            Industrial Commissioner 218 (1979); 2 Larson Workmen's 
 
            Compensation Law, sections 57.21 and 57.31.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 Claimant is 50 years old, and, at the time of hearing, 
 
            had not yet obtained his GED.  From the ages of 11 to 18, he 
 
            was a resident at the training school for boys in Eldora, 
 
            Iowa.  Although he did not graduate, he left the school when 
 
            he was 18, and during the next four to five years held jobs 
 
            with manufacturing plants; the railroad; and a rock quarry 
 
            as a driller and dynamite man.
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
                 In 1962, he obtained employment with Titus 
 
            Manufacturing, and worked as an assembler, painter and spot 
 
            welder for 12 years.  All of these jobs required claimant to 
 
            use his back.
 
            
 
                 In 1974, defendant 3M Company opened their Knoxville 
 
            facility, and claimant was one of the first employees hired 
 
            by the company.  He worked at various jobs, including 
 
            machine operator; assistant coater treater; packer; forklift 
 
            operator; and quality control.  Claimant used his back most 
 
            in his position as assistant coater treater operator.
 
            
 
                 As previously discussed, claimant's physical condition 
 
            can be described as marginal, at best; however, it does not 
 
            appear that any of these prior conditions precluded claimant 
 
            from a productive life in the work force.
 
            
 
                 Motivation is another consideration when determining 
 
            the extent of an industrial disability.  Claimant expressly 
 
            stated he wanted to go back to work for 3M, and made no 
 
            further serious attempts to obtain employment.  Claimant 
 
            previously had held a supervisory position with the company, 
 
            and 3M admitted that claimant would perform well as a 
 
            salaried shift supervisor, a position with duties that would 
 
            fall within claimant's restrictions.  (Tr. P. 106).  And, 
 
            claimant's prior duties in quality control would adhere to 
 
            his medical restrictions.  However, the employer has not 
 
            offered claimant any work at the plant.
 
            
 
                 Claimant had held a position in quality control at 
 
            least three different times in his 3M career, and it is 
 
            unfortunate that the defendant company could not accommodate 
 
            claimant after this latest episode.  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).
 
            
 
                 All factors which determine the amount of industrial 
 
            disability were considered: overall medical condition 
 
            (claimant has a hearing loss and prior back problems); situs 
 
            of injury and nature of injury (increased impairment and 
 
            medical restrictions); work experience and potential for 
 
            rehabilitation (laborer positions and mediocre attempts at 
 
            rehabilitations; GED classes); intellectual, emotional and 
 
            physical qualifications (average); functional impairment due 
 
            to the May 1987 injury (20 percent); age (50); education and 
 
            motivation (below average); earnings before and after the 
 
            injury (reduction).
 
            
 
                 Claimant's credibility and his motivation to work are 
 
            questionable at times, but the medical evidence supports the 
 
            position that claimant is unable to return to the type of 
 
            employment he had performed for, if not all of, most of his 
 
            employment life.  He has certainly sustained a loss of 
 
            earning capacity, and is entitled to further benefits.
 
            
 
                 After considering all of the factors which comprise the 
 
            concept of industrial disability, and the undersigned finds 
 
            claimant has sustained 40 percent industrial disability.
 
            
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
                           
 
            
 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 Defendants shall pay unto claimant two hundred (200) 
 
            weeks of permanent partial disability benefits at the 
 
            stipulated rate of two hundred ninety-two and 34/100 dollars 
 
            ($292.34) per week commencing February 20, 1989.
 
            
 
                 Defendants shall pay healing period benefits at the 
 
            stipulated rate of two hundred ninety-two and 34/100 dollars 
 
            ($292.34) from May 31, 1987 through April 5, 1988, for a 
 
            total of forty-four point four two nine (44.429) weeks.
 
            
 
                 Defendants shall pay healing period benefits at the 
 
            stipulated rate of two hundred ninety-two and 34/100 dollars 
 
            ($292.34) from August 4, 1988 through February 19, 1989.
 
            
 
                 Defendants shall pay claimant's unpaid medical bills in 
 
            the amount of one hundred sixty-five dollars ($165.00); 
 
            prescriptions totaling one hundred fifty-two and 60/100 
 
            dollars ($152.60); and mileage reimbursement of five hundred 
 
            fourteen and 50/100 dollars ($514.50) (two thousand four 
 
            hundred fifty (2450) miles times twenty-one cents ($.21) per 
 
            mile).
 
            
 
                 Defendants shall reimburse claimant for medical 
 
            expenses incurred from Dr. Jones.
 
            
 
                 Defendants shall receive credit for benefits previously 
 
            paid claimant.
 
            
 
                 Benefits that have accrued shall be paid in a lump sum 
 
            together with statutory interest thereon, pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 Costs of this action are assessed against defendants, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of January, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr Harold B Heslinga
 
            Attorney at Law
 
            118 N Market
 
            Oskaloosa Iowa 52577
 
            
 
            Mr Roger L Ferris
 
            Mr Joseph A Quinn
 
            Attorneys at Law
 
            1900 Hub Tower
 
            699 Walnut
 
            Des Moines Iowa 50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1100; 1402.30; 2208
 
                                            2300; 2908
 
                                            Filed June 8, 1989
 
                                            Bernard J. O'Malley
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         HARVEY L. LENNIE,
 
         
 
              Claimant,
 
                                                    File No. 858608
 
         vs.
 
         
 
         3 M COMPANY,                            A R B I T R A T I 0 N
 
         
 
              Employer,                             D E C I S I 0 N
 
         and
 
         
 
         NORTHWESTERN NATIONAL INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1100; 2208; 2300
 
         
 
              Occupational hearing loss case.  Deputy raised two 
 
         jurisdictional issues:  (1) no injury date per 85B.8 
 
         notwithstanding parties' stipulation, and (2) petition filed less 
 
         than six months from stipulated injury date contrary to 85B.8.
 
         
 
         1402.30
 
         
 
              Claimant also failed on the merits.
 
         
 
         2908
 
         
 
              Rule 80 sanctions applied.  Claimant's attorney ordered to 
 
         pay or reimburse claimant for one-half court costs assessed 
 
         against claimant or $100, whichever is greater.  Action should 
 
         have never been filed.
 
 
 
 
 
         
 
         
 
         
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      1803
 
                      FILED JANUARY 29, 1991
 
                      PATRICIA J. LANTZ
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            HARVEY LENNIE, :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :       File No. 858608
 
            3M COMPANY,    :
 
                      :     A R B I T R A T I O N
 
                 Employer, :
 
                      :       D E C I S I O N
 
            and       :
 
                      :
 
            NORTHWESTERN NATIONAL    :
 
            INSURANCE COMPANY,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            1803
 
            Claimant, 50 years old, average intelligence, below-average 
 
            motivation, sustatined a 20 percent functional impairment 
 
            resulting from a fall at work.  Employer failed to offer 
 
            employer any light duty jobs that adhered to medical 
 
            restrictons, which included no lifting of more than 35 lbs 
 
            maximum-15-20 lbs repetitively.  Claimant awarded 40 percent 
 
            industrial disability.