before the iowa industrial commissioner
 
         ____________________________________________________________
 
                   :
 
         SHERYL MILLEDGE,    :
 
                   :
 
              Claimant, :
 
                   :
 
         vs.       :
 
                   :      File No. 858610
 
         B.Q.C., INC.,, :
 
                   :        A P P E A L
 
              Employer, :
 
                   :      D E C I S I O N
 
         and       :
 
                   :
 
         WAUSAU INSURANCE,   :
 
                   :
 
              Insurance Carrier,  :
 
              Defendants.    :
 
         ___________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         January 10, 1990 is affirmed and is adopted as the final agency 
 
         action in this case. 
 
         Defendants shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of September, 1991.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                        INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Jacob J. Peters
 
         Attorney at Law
 
         233 Pearl St.
 
         P.O. Box 1078
 
         Council Bluffs, Iowa 51502
 
         
 
         Mr. Philip J. Willson
 
         Attorney at Law
 
         P.O. Box 249
 
         Council Bluffs, Iowa 51502
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed September 9, 1991
 
            Byron K. Orton
 
            WRM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            SHERYL MILLEDGE,    :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 858610
 
            B.Q.C., INC.,, :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            WAUSAU INSURANCE,   :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed January 
 
            10, 1990.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         SHERYL MILLEDGE
 
         
 
                 Claimant,
 
         
 
         VS.
 
                                         File No.  858610
 
         
 
         B.Q.C., INC.,
 
                                         A R B I T R A T I 0 N
 
              Employer,
 
                                         D E C I S I 0 N
 
         and
 
         
 
         WAUSAU INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Sheryl 
 
         Milledqe, claimant, against B.Q.C., Inc., employer, and Wausau 
 
         Insurance, insurance carrier, defendants, for benefits as the 
 
         result of an alleged injury which occurred on August 20, 1987.  A 
 
         hearing was held in Council Bluffs, Iowa, on  September 7, 1988, 
 
         and the case was fully submitted at the close of the hearing.  
 
         Claimant was represented by Jacob J. Peters.  Defendants were 
 
         represented by Philip Willson.  The record consists of the 
 
         testimony of Sheryl Milledge, claimant; Danny A. Milledge, 
 
         claimant's husband; Kathryn K. VanVoltenberg, personnel director; 
 
         Jon A. Rice, II, production supervisor; Linda Frederiksen, plant 
 
         manager; Christine A. McIntosh, group king leader; Clara M. 
 
         Briseno, coworker; joint exhibits 1 through 28 and 30 through 43.  
 
         Joint exhibit 41, a video tape of plant operations, was placed in 
 
         the custody of defendants' counsel pending the expiration of all 
 
         appeal periods.  Both attorneys submitted outstanding posthearing 
 
         briefs.  The deputy ordered a transcript of the hearing.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters at the time 
 
         of the hearing:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the injury.
 
         
 
         
 
         
 
         MILLEDGE V. B.Q.C., INC.
 
         Page 2
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
              That claimant was married and entitled to three exemptions 
 
         at the time of the injury.
 
         
 
              That the provider of medical services or supplies would 
 
         testify that the amounts charged are fair and reasonable and that 
 
         defendants are not offering contrary evidence.
 
         
 
              That the provider of medical services and supplies would 
 
         testify that the medical expenses were incurred for reasonable 
 
         and necessary medical treatment and defendants are not offering 
 
         contrary evidence, except, defendants do dispute that the items 
 
         in exhibits 34 through 40 were reasonable and necessary expenses 
 
         of this injury.
 
         
 
              That the expenses are causally connected to the work injury 
 
         is disputed as to the expenses in exhibits 34 through 40.
 
         
 
              That defendants make no claim for benefits paid prior to 
 
         hearing under an employee non-occupational group health plan or 
 
         as workers' compensation benefits.
 
         
 
              That there are no bifurcated claims.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether claimant sustained an injury on August 20, 1987, 
 
         which arose out of and in the course of employment with employer.
 
         
 
              Whether the alleged injury was the cause of either temporary 
 
         or permanent disability.
 
         
 
              Whether claimant is entitled to either temporary or 
 
         permanent disability benefits, and if so, the nature and extent 
 
         of benefits.
 
         
 
              Whether claimant is entitled to medical benefits, and in 
 
         particular, whether claimant is entitled to the medical expenses 
 
         in exhibits 34 through 40 for decongestant medicine and a bed.
 
         
 
              What is the proper rate of weekly compensation.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Claimant, age 39, is married and has one dependant child.  
 
         She completed tenth grade and has not obtained a GED.  She has no 
 
         additional educational or vocational training.  Her past 
 
         employments have been either strenuous or production line types 
 
         of jobs.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         MILLEDGE V. B.Q.C., INC.
 
         Page 3
 
         
 
         
 
              Claimant acknowledged and defendants pointed out a number of 
 
         problems that claimant encountered prior to this alleged injury 
 
         (transcript page 17).
 
         
 
              Claimant experienced sacroiliac pain on May 29, 1979, after 
 
         lifting tires out of a car trunk while employed by McIntyre Olds.  
 
         She was examined in the emergency room and released.  An x-ray 
 
         was normal.  Claimant lost a week from work and received workers, 
 
         compensation.  She then returned to work (exhibits 15 & 33; tr. 
 
         pages 17-19).
 
         
 
              On November 8, 1981, claimant was seen in the emergency room 
 
         for onset of low back pain while standing, no trauma associated.  
 
         There was no numbness, tingling or radiation in the extremities.  
 
         Claimant was diagnosed as having acute lumbar strain, medicated 
 
         and released.  She was unemployed at the time.  She did not 
 
         immediately recall this incident (ex. 16, tr. pp. 19 & 20).
 
         
 
              On March 3, 1983, claimant was hospitalized until March 14, 
 
         1983, for low back pain.  At that time she was employed by 
 
         employer's predecessor company.  She encountered onset of severe 
 
         back pain while lifting a ten pound hub off of a reel.  She was 
 
         diagnosed as having acute lumbar strain, but her lumbar spine was 
 
         described as normal (ex. 17).  She was off work two weeks and 
 
         paid workers' compensation and returned to her former job with 
 
         employer (exs., 4-7; tr. pp. 20-24).
 
         
 
              On October 18, 1985, claimant suffered tendonitis of the 
 
         left shoulder while packaging 65 pound buckets of nuts and bolts 
 
         for another employer.  She received physical therapy and returned 
 
         to work about a month later (exs. 18 & 32; tr. pp. 24 & 25).
 
         
 
              The records of Alan Fisher, M.D., claimant's personal 
 
         physician, show that he treated her for mechanical low back 
 
         strain on April 12, 1981; January 7, 1982; January 25, 1983; 
 
         March 22, 1983; March 30, 1983; April 8, 1983; April 15, 1983; 
 
         May 4, 1983; and August 23, 1985 (ex. 1, pp. 1-6).
 
         
 
              None of her doctors had ever recommended surgery for these 
 
         prior incidents (tr. p. 23).
 
         
 
              Claimant has worked for employer, or its predecessor, off 
 
         and on since 1984.  She reapplied for work in September 1986.  
 
         She notified employer on the employment application that she had 
 
         received workers' compensation for prior injuries and that she 
 
         was subject to a job restriction that she was not to lift over 25 
 
         pounds (ex. 43; tr. pp. 26 & 27).  She had not seen a doctor 
 
         about her back since 1983 and was not treating or taking any 
 
         medications for her back (tr. p. 27).  Claimant returned as a 
 
         king operator on the second shift from 3:00 p.m. to 11:00 p.m., 
 
         with Jon Rice as her supervisor (tr. pp. 28-30).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         MILLEDGE V. B.Q.C., INC.
 
         Page 4
 
         
 
         
 
              On July 19, 1987, claimant and her husband were in a 
 
         motor-cycle accident.  The motorcycle struck a dog and her 
 
         husband said they were going down.  Claimant said she stepped off 
 
         the leaning motorcycle and was not injured.  The bike went down 
 
         and her husband was scraped up (tr. pp. 30-33).
 
         
 
              At the time of this alleged injury, on Thursday, August 20, 
 
         1987, claimant had been working as a final packer for 
 
         approximately two weeks.  Her usual job was king operator.  
 
         Finished and inspected cassettes were placed in a tub of 
 
         approximately 500 tapes and then placed on a skid.  Claimant 
 
         placed a floor jack under the skid and pulled them into the 
 
         backroom where they were stickered.  Claimant then returned the 
 
         tapes and placed them in boxes of 30 tapes with two rows of 15 
 
         tapes each.  She stacked the boxes of 30 into stacks of three and 
 
         then placed them on a pushcart.  She then pushed a cart of 48 
 
         boxes of cassette tapes to labeling and placed them on a table 
 
         three boxes of 30 at a time.  She then picked them up three at a 
 
         time and put them on another skid.  Final packing required more 
 
         bending, pushing and pulling than her usual job as a king 
 
         operator.  The last step was that she or Jon Rice pulled the skid 
 
         back to shipping  (tr. pp. 35-38 & 59).
 
         
 
              Claimant did not feel well when she came to work on 
 
         Thursday, August 20, 1987, and felt worse as the shift 
 
         progressed.  The pain was localized in her right lower hip.  
 
         Claimant complained about her back at break with her  
 
         co-employees and took some aspirins that were given to her by a 
 
         co-employee at that time.  Her husband brought her lunch and she  
 
         complained to him about her back at lunch break.  She complained 
 
         about her back to a co-employee, Clara Briseno.  Briseno told 
 
         claimant to report it to Jon Rice, but claimant said she did not 
 
         do so because Rice expected her to be able to do her job (tr. pp. 
 
         38-41).
 
         
 
              The following day, claimant testified she called Linda 
 
         Frederiksen, plant manager, and reported she hurt her back the 
 
         night before and obtained permission to see a chiropractor.  
 
         Claimant saw Stanley A. Dirks, M.S., D.C., on Friday, August 21, 
 
         1987 (ex. 9).  He took an x-ray and told her she had a ruptured 
 
         disc in her back.  She said he took her off work for a week  (tr. 
 
         pp. 41-45).  On August 22, 1987, Dr. Kirks wrote, "SHERYL 
 
         MILLEDGE is under my care for a low back injury sustained  while 
 
         on the job.  She will be unable to work until Friday, September 
 
         4, 1987." (ex. 10).
 
         
 
              Claimant testified that on the way home from Dr. Dirks' 
 
         office on Friday, August 21, 1987, she stopped at employer's 
 
         place of business to report a workers' compensation claim, but 
 
         the receptionist, Debbie, told her to come back on Monday because 
 
         Kathryn K. VanVoltenberg was not there.  Claimant said she did 
 
         not work that night (tr. pp. 42-45).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         MILLEDGE V. B.Q.C., INC.
 
         Page 5
 
         
 
         
 
              When Dr. Dirks could not relieve her pain on Friday or 
 
         Saturday, he sent claimant to the hospital to meet R. Schuyler 
 
         Gooding, M.D., a neurosurgeon at the hospital, on Saturday 
 
         afternoon, August 22, 1987 (ex. 10; tr. pp. 46-49).
 
         
 
              Dr. Gooding looked at Dr. Dirks' x-rays, took his own x-rays 
 
         and took a myelogram on Monday, August 24, 1985.  The tests 
 
         disclosed a ruptured disc and claimant consented to surgery on 
 
         Wednesday, August 26, 1987.  She was in the hospital for 11 days 
 
         (tr. pp. 49 & 50).
 
         
 
              The hospital records show claimant was admitted on August 
 
         22, 1987 and discharged on September 1, 1987, with a principle 
 
         diagnosis of herniated nucleus pulposus secondary to trauma, L5, 
 
         Sl (ex. 10, p. 1).
 
         
 
              F.C. Marsh, M.D., recorded on August 22, 1987, on the 
 
         history and physical examination, "This 37-year-old female was in 
 
         her normal state of health until three days prior to admission 
 
         when she had the onset of lower back and right buttocks 
 
         discomfort after doing some continuous lifting at work."(ex. 19, 
 
         p. 4).  A neurological admission note on August 22, 1987, by Dr. 
 
         Gooding stated:
 
         
 
              This patient is a 37-year-old right-handed Caucasian
 
              female who on 8/20/87, after doing an eight-hour shift
 
              of "lifting all night long" in "final packing" where
 
              she was bending over, picking up and carrying boxes of
 
              tapes which actually didn't weight a great deal, but
 
              she did this for eight straight hours.  She progres-
 
              sively developed low back pain which then progressively
 
              has radiated in to her right lower extremity and has
 
              become progressively disabling in spite of conservative
 
              measures provided by Dr. Stanley Dirks.
 
         
 
               ***
 
         
 
              X-rays provided by Dr. Dirks reveal marked narrowing
 
              and degenerative changes at the L5-Sl disc space.
 
         
 
         (ex. 19, p. 6)
 
         
 
              The myelogram disclosed extradural defect with amputation of 
 
         the nerve root sheath at L5, Sl (ex. 19, p. 8).  "The overall 
 
         impression was that the patient had a ruptured disc at the L5-Sl 
 
         level on the right." (ex. 19, p. 9).  On the discharge summary, 
 
         Dr. Gooding wrote, "This patient is a 37-year-old Caucasian 
 
         female who was injured at work on 8/20/87 while lifting boxes all 
 
         night long." (ex. 19, p. 2).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              On March 8, 1988, Dr. Gooding wrote that claimant:
 
         
 
         
 
         
 
         MILLEDGE V. B.Q.C., INC.
 
         Page 6
 
         
 
         
 
              ....was.a 37-year-old lady who progressively developed
 
              low-back pain which radiated into the Right lower
 
              extremity, following an eight-hour work shift on
 
              8/20/87, wherein she was bending over, picking up, and
 
              carrying boxes of tapes constantly throughout her
 
              shift, even though the boxes of tapes didn't weigh very
 
              much individually.
 
         
 
              She had a similar episode earlier with the same employer 
 
         lifting heavier boxes.  He continued, "She was admitted to Jennie 
 
         Edmundson Hospital because of the totally disabling nature of her 
 
         low-back problem, which I am definitely of the impression is the 
 
         direct result of her work activities during that eight-hour 
 
         shift, and was started on a conservative in-hospital program."  
 
         He continued, "She was followed by myself, throughout her 
 
         post-operative convalescent period, last being seen on February 
 
         23rd, and released from my care at that time."  He assigned a 25 
 
         pound regular lifting limit and 40 pounds upon occasion, until 
 
         the one-year anniversary of her surgery.  He described her 
 
         impairment as follows:
 
         
 
              I would assign a permanent partial disability, with
 
              regard to the whole person, as a result of this work-
 
              associated injury and subsequent surgery, of 15%.  This
 
              is because the low-back anatomy has not been returned
 
              to a normal state, due to the injury and subsequent
 
              surgery, and as such, she can more easily re-injure it
 
              in the future than would be the case if it had never
 
              been injured in the first place.
 
         
 
              He recommended against returning to bending, lifting and 
 
         carrying constantly and repetitively during an eight-hour shift 
 
         (ex. 13, pp. 1 & 2).
 
         
 
              During the course of her treatment, on December 29, 1987, 
 
         Dr. Goading said, " ... it is recommended that she not use a 
 
         waterbed and use a high quality, firm, regular mattress." (ex. 
 
         12a). Claimant said she slept on the  couch for two months 
 
         because her husband works out of town.  Claimant  said  they 
 
         purchased a conventional bed and that exhibit 40, a receipt for 
 
         $363.95 dated November 3, 1987, is the receipt.for that bed  (tr. 
 
         pp. 51, 52 & 55).
 
         
 
              Claimant testified that Dr. Gooding treated her until 
 
         February 23, 1988. She then saw employer who returned her to work 
 
         at the same job, at the same pay on the same shift and for the 
 
         same supervisor approximately one week after she was released by 
 
         Dr. Gooding.  Claimant testified that she has performed her job 
 
         without any major problems.  She is not in pain anymore  (tr. pp. 
 
         53-55).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         MILLEDGE V. B.Q.C., INC.
 
         Page 7
 
         
 
         
 
              Claimant testified that after the surgery and during her 
 
         recuperation in October 1987, she got pneumonia and treated with 
 
         her family doctor, Alan Fisher, M.D., who told her it was from 
 
         the anesthesia and then lying down.  She identified exhibits 34 
 
         through 39 as the medications prescribed by Dr. Fisher to combat 
 
         the pneumonia (tr. pp. 56 & 57).  Claimant agreed that in the 
 
         past she had been told by a physician not to lift more than 12 
 
         pounds, but that she had lifted more than that as a final packer 
 
         (tr. pp. 58-61).
 
         
 
              Danny Milledge testified that he has been married to 
 
         claimant for about a year and three months. He took her  lunch  
 
         to her on August 20, 1987.  She was complaining about her back 
 
         and asked him for aspirin.  Her back had been bothering her 
 
         during the last part of the week (tr. pp. 61 & 62). He took 
 
         claimant to the plant after seeing the chiropractor on Friday, 
 
         August 21, 1987.  She wanted to pick up her check and report a 
 
         workers' compensation claim.  When she came back out, she said 
 
         she couldn't do it until Monday because the lady who does this 
 
         type of stuff wasn't there that day (tr. pp. 62 & 63).
 
         
 
              Milledge testified that he went to the plant on Monday 
 
         morning ad reported what had happened to Kathy VanVoltenberg the 
 
         personnel director.  He told VanVoltenberg that it was a workers' 
 
         compensation claim.  VanVoltenberg went to talk to someone else, 
 
         presumably Linda Frederiksen, and came back and stated that 
 
         nothing could be done until she talked to Jon Rice, claimant's 
 
         supervisor, and he did not come in until 3:00 p.m.
 
         
 
              Milledge said VanVoltenberg did not want to make up the work 
 
         comp papers at that time, which didn't make any difference to him 
 
         because he had group insurance to cover her bill, which was his 
 
         main concern, because the hospital was inquiring about insurance.
 
         
 
              Milledge said he reported that claimant was having surgery 
 
         and that she would be off work for quite some time (tr. pp. 
 
         64-66).  Milledge testified that at the time of the motorcycle 
 
         accident he was injured, but his wife was not.  She went to work 
 
         on Monday after the accident (tr. pp. 66-68).
 
         
 
              VanVoltenberg testified that she is a nine-year employee of 
 
         employer.  She does art work for the cassette inserts, serves as 
 
         secretary to the general manager and acts as personnel director 
 
         for the company.  She testified that the video was representative 
 
         of claimant's activities for the company (tt. pp. 68 & 69; ex. 
 
         41).  The video demonstrated the king operator job and the final 
 
         packing job.  The weight shown on a 30-count box was 
 
         approximately four to five pounds.  The video demonstrated 
 
         pumping up the floor jack with the foot and pushing and pulling 
 
         the skid (tr. pp. 69-74).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         MILLEDGE V. B.Q.C., INC.
 
         Page 8
 
         
 
         
 
              VanVoltenberg denied that claimant's husband contacted her 
 
         on Monday, August 24, 1987.  She said she first learned claimant 
 
         was off work when she got a call from the hospital on Tuesday or 
 
         Wednesday to verify that claimant had insurance with employer.  
 
         VanVoltenberg denied that claimant's husband ever told her that 
 
         there was a claim that was job related (tr. pp. 74 & 75). 
 
         VanVoltenberg acknowledged that she was on vacation on Friday 
 
         August 22, 1987 (tr. pp. 74 & 78).  The witness did not believe 
 
         there was much difference in the lifting, bending and stooping of 
 
         the king operator job and the final packer job (tr. pp. 76 & 77). 
 
         She also testified that she investigated the workers, 
 
         compensation claim.  She acknowledged that before she began the 
 
         investigation, her boss told her that it was not a valid claim.  
 
         She conceded that her investigation did not include talking to 
 
         claimant or talking to witnesses as to the motorcycle accident, 
 
         but it included only talking to persons in the plant (tr. pp. 79 
 
         & 80). VanVoltenberg testified that claimant is and has been a 
 
         good employee (tr. pp. 77 & 78).
 
         
 
              Jon Rice, second shift production supervisor, testified a 
 
         full skid contains 240 boxes of 30 cassettes in a box and that a 
 
         box weighed approximately four or five pounds.  You bend to 
 
         initially load the skid from the floor up to about four feet.  He 
 
         said claimant could have asked him to operate the floor jack and 
 
         pull the skid.  She did not complain to him of any back pain on 
 
         Thursday, August 20, 1987.  They filled about one and one-half 
 
         skids that night.  He moved the full one about 25 feet-into the 
 
         next bay.  He did not hear her comment to co-employees at break 
 
         about back pain.  Since she has returned to work, she has 
 
         performed her job without difficulty or complaint  (tr. pp. 
 
         81-86).  He said he believed claimant when she said she did not 
 
         report her back pain because she did not want him to know she 
 
         could not do her job (tr. p. 87).  Rice agreed that a skid of 240 
 
         boxes, weighing four pounds each, makes a 960 pounds load  (tr. 
 
         pp. 88 & 89).
 
         
 
              Linda Frederiksen testified she had been plant manager for 
 
         two and one-half years and been employed there for nine years.  
 
         She did not observe claimant on Thursday, August 20, 1987.  She 
 
         did not see claimant's husband on Monday, August 24, 1987.  He 
 
         came in and asked for medical forms because his wife was in the 
 
         hospital and going to have back surgery.  He did not suggest that 
 
         it was job related.  Frederiksen acknowledged that claimant 
 
         called in on Friday, August 21, 1987 and notified her that she 
 
         was going to a chiropractor because her back was bothering her.  
 
         She said claimant did not say why her back was bothering her and 
 
         did not mention a job claim.  She has had no problems doing  her 
 
         work since she returned to work (tr. pp. 89-92).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Frederiksen said claimant is and has been a good worker.  
 
         She said she first learned this was a workers' compensation claim
 
         
 
         
 
         MILLEDGE V. B.Q.C., INC.
 
         Page 9
 
         
 
         
 
         when she got a call from the hospital in the middle of the week, 
 
         five or six days after the alleged injury.  The witness denied 
 
         claimant asked permission to see a chiropractor, but rather 
 
         claimant notified her she was going to see a chiropractor and 
 
         hoped to be in later in the day.  Frederiksen said she knew 
 
         claimant had back problems, had a prior back injury with the 
 
         company, and that claimant had a 25 pound weight restriction.  
 
         The insurance company representative questioned whether this was 
 
         a valid claim since claimant had not notified her supervisor of 
 
         the injury on the day it occurred.  As a result, she conveyed to 
 
         VanVoltenberg that she did not believe that this was a valid 
 
         claim.  Frederiksen said she was at the plant on Friday, August 
 
         21, 1987, when claimant allegedly came in to fill out workers' 
 
         compensation forms, but she did not see her or talk to her  (tr. 
 
         pp. 92-97).
 
         
 
              Clara Briseno, a six-year employee of employer, remembered 
 
         the night of Thursday, August 20, 1987, and recalled claimant was 
 
         complaining a lot.  She said claimant told her that her back was 
 
         hurting real bad.  Briseno suggested she tell Jon Rice.  Claimant 
 
         told Briseno she did not want Rice to think she could not do her 
 
         job.  Briseno had learned about the motorcycle accident, but had 
 
         never heard that claimant was injured  (tr.  pp.  97-101).
 
         
 
              Christine McIntosh, group king leader for two years, 
 
         recalled Thursday night, August 20, 1987.  She said claimant 
 
         worked on final pack.  She did not recall claimant mentioning her 
 
         back on the break, but she was on the phone part of the time.  
 
         McIntosh did not see much difference in the amount of bending and 
 
         lifting between final pack and king operator.  Claimant had 
 
         complained on Monday that she was stiff and that she had been in 
 
         a motorcycle accident.  McIntosh told her to tell Jon Rice, but 
 
         claimant said she would work it out.  McIntosh said that when 
 
         claimant returned to work, she told her that the doctor had told 
 
         her it was an old injury, they took a piece off of the disc, but 
 
         did not remove the disc.  Claimant also said she was supposed to 
 
         lose some weight.  Since she had returned to work, she has had no 
 
         problems or made any complaints about her work  (tr. pp. 
 
         102-106). McIntosh's testimony was not consistent with an earlier 
 
         deposition with respect to the motorcycle accident and she 
 
         continued to believe claimant was stiff from the motorcycle 
 
         accident even though it occurred a month earlier in July (tr. pp. 
 
         106-110).
 
         
 
              The rate of compensation is an issue in this case.  
 
         Claimant's wage records appear in several exhibits  (exs. 20; 21; 
 
         22, pp. 12-14; 23, pp. 4 & 5).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              In a statement given to the insurance company on October 15, 
 
         1987, claimant acknowledged that the pain she experienced on 
 
         August 20, 1987 gradually became worse throughout the night.  
 
         There was no specific accident when she felt a sharp pain.  This
 
         
 
         
 
         
 
         MILLEDGE V. B.Q.C., INC.
 
         Page 10
 
         
 
         
 
         item and other matters are consistent with her testimony at the 
 
         hearing (ex. 15, p. 4).
 
         
 
              Claimant presented the following medical bills for payment:
 
         
 
         
 
         
 
              Jennie Edmundson Hospital    $4,596.69    Ex.  26
 
              R. Schuyler Gooding, M.D.     2,801.00    Ex.  27
 
              Dirks Chiropractic Center       169.00    Ex.  28
 
              Walgreens                       290.12    Ex.  31
 
              Walgreens                        58.44    Ex.  34-39
 
              Home Furniture - new bed        363.95    Ex.  40
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received an injury on August 20, 1987, which 
 
         arose out of and in the course of her employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976);  Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of August 20, 1987, is causally 
 
         related to the disability on which she now bases her claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 
         Lindahl v. L. 0. 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
 
         
 
         
 
         
 
         MILLEDGE V. B.Q.C., INC.
 
         Page 11
 
         
 
         
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
         N.W.2d 128 (1967).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756,  760-61 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812, 815 (1962).
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore 
 
         plain that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of per- 
 
         centages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to  the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that she sustained an injury on August 20, 1987, 
 
         which arose out of and in the course of employment with employer.  
 
         Claimant described an injury caused by continuous bending, 
 
         lifting, carrying, pushing and pulling while working as a final 
 
         packer for approximately two weeks which was not her regular job 
 
         as a king operator.  Claimant's husband and Briseno corroborate 
 
         claimant's account of increasing pain on the night of the injury.  
 
         An injury is an unnatural impairment of health.  Almquist v. 
 
         Shenandoah Nurseries, Inc., 218 Iowa 724, 254 N.W. 35 (1934).  An 
 
         accident is not required. Olson, 255 Iowa 1112, 125 N.W.2d 251, 
 
         257 (1963). Proof of a special incident or unusual occurrence is 
 
         not required.  Ford v. Goode, 240 Iowa 1219, 39 N.W.2d 158 
 
         (1949).  A personal injury may develop gradually over an extended 
 
         period of time.  Black v. Creston Auto Company, 225 Iowa 671, 281 
 
         N.W. 189 (1938); McKeever Custom Cabinets v. Smith, 379 N.W.2d 
 
         368 (Iowa 1985).
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         MILLEDGE V. B.Q.C., INC.
 
         Page 12
 
         
 
         
 
              It is true that claimant had reported and been treated for 
 
         lower lumbar strain and mechanical low back pain intermittently 
 
         since 1979.  One such incident occurred while employed by this 
 
         employer on March 3, 1983, when claimant lifted a 10 pound hub 
 
         off of a reel, lost two weeks from work and collected  workers' 
 
         compensation (exs. 4-7; tr. pp. 20-24).  It is also true that 
 
         claimant suffered from degenerative disc disease and marked 
 
         narrowing of the interspaces at L5, Sl as demonstrated by the 
 
         x-rays of Dr. Dirks (ex. 19, p. 6).  However, as claimant's 
 
         attorney points out, employers take employees "as is" and subject 
 
         to any active or dormant health impairments.  Lawyer and Higgs, 
 
         Iowa Workers' Compensation--Law and Practice, section 4-2, p. 21.  
 
         Employer is liable if claimant's degenerative disc becomes 
 
         symptomatic through any cause originating in the performance of 
 
         work for which she was hired. Hanson v. Dickinson, 188 Iowa 728, 
 
         732, 176 N.W. 823, 824 (1920). A back condition that is 
 
         aggravated, accelerated or lighted.up by employment activity is 
 
         deemed a personal injury in the Act.  Nicks v. Davenport Produce 
 
         Co., 254 Iowa 130, 115 N.W.2d 812 (1962).
 
         
 
              The employment is a proximate cause if it is a substantial 
 
         factor in bringing about the result; it need not be the only 
 
         cause.  Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
         1980).
 
         
 
              Dr. Gooding definitively attributed the injury to claimant's 
 
         work several times.  Dr. Marsh said the onset occurred after 
 
         doing some continuous lifting at work (ex. 19, p. 4).  Dr. 
 
         Gooding said the injury progressively developed after an eight 
 
         hour shift of lifting all night long in final  packing bending 
 
         over, picking up and carrying boxes of tapes which actually 
 
         didn't weigh a great deal, but she did it for eight hours 
 
         straight (ex. 19, p. 6). On his discharge summary Dr. Gooding 
 
         wrote, "This patient is a 37-year-old Caucasian female who was 
 
         injured at work on 8/20/87 while lifting boxes all night  long." 
 
         (ex. 19, p. 2). In his final evaluation letter on March 3, 1988, 
 
         Dr. Gooding wrote that claimant developed this injury following 
 
         an eight-hour shift on August 20, 1987, of bending over, picking 
 
         up and carrying boxes of tapes even though they did not weigh 
 
         very much.  He said he was "definitely of the impression" it was 
 
         a direct result of the work activities during this eight-hour 
 
         shift (ex. 13). Dr. Gooding is the treating physician and 
 
         operating neurosurgeon.  He is the primary and practically the 
 
         only doctor involved in the case.  Defendants did not ask for a 
 
         transfer of care.  Defendants did not request an independent 
 
         medical examination under Iowa Code section 85.39, paragraph one.  
 
         Dr  Goodings' testimony is uncontroverted.  It is the only 
 
         medical expert testimony in the case.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Defendants point out that claimant was involved in a 
 
         motorcycle accident about one month prior to this injury.
 
         
 
         
 
         
 
         MILLEDGE V. B.Q.C., INC.
 
         Page 13
 
         
 
         
 
         Claimant and her husband testified that she stepped off the bike 
 
         before it fell and that claimant was not injured, she did not 
 
         seek any medical treatment and she lost no time from work.  This 
 
         evidence is not controverted, contradicted, rebutted or refuted 
 
         by any other evidence introduced by defendants.  Therefore, the 
 
         only evidence and the weight of the evidence is that claimant was 
 
         not injured in the motorcycle accident.
 
         
 
              Claimant and her husband testified that they stopped at the 
 
         plant on Friday, August 21, 1987, and told Debbie, the 
 
         receptionist, that they wanted to report a workers' compensation 
 
         claim.  Although several other plant employees testified at the  
 
         hearing, defendants did not introduce any evidence from Debbie to 
 
         contradict or rebut this evidence of claimant and her husband.  
 
         The weight of the evidence, then, also rests with claimant on  
 
         this point.
 
         
 
              For the foregoing reasons, it is determined that claimant 
 
         sustained the burden of proof by a preponderance of the evidence 
 
         that she sustained an injury on August 20, 1987, which arose out 
 
         of and in the course of employment with employer.
 
         
 
              The next issue is temporary disability.  Claimant  completed 
 
         the second shift on the date of the injury, August 20, 1987.  Dr. 
 
         Dirks took claimant off work on August 21, 1987  until September 
 
         4, 1987 (ex. 10). Dr. Gooding hospitalized claimant on August 22, 
 
         1987 and continued to keep her off work until February 23, 1988 
 
         (ex. 13). Defendants contend that Dr. Gooding talked about a 
 
         return to work four months after the surgery with limitations 
 
         (ex. 12). This is true, but it turned out to be only speculation 
 
         or a statement of possibilities on his part as of that date, 
 
         October 31, 1987.
 
         
 
              In reality, what actually happened was that claimant was 
 
         kept off work by Dr. Gooding until February 23, 1988 (ex. 13). 
 
         Defendants maintained they had light work available, but claimant 
 
         did not ask for it.  Once the treating physician takes an injured 
 
         employee off work, it is not the duty of claimant to request the 
 
         doctor for a release for an early return to work with limitations 
 
         and then arrange light duty for herself with employer.  If this 
 
         result is desired, it is incumbent on employer to make such 
 
         arrangements. Employer introduced no evidence of requesting an 
 
         early release from the doctor or offering claimant work within 
 
         the doctors' limitations.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Therefore, claimant has sustained the burden of proof by a 
 
         preponderance of the evidence that the injury was the cause of 
 
         temporary disability and that she is entitled to temporary 
 
         disability benefits from August 21, 1987 to February 24, 1988.  
 
         Claimant was last seen by Dr. Gooding on.February 23, 1988, 
 
         therefore, it was not feasible for her to return to work on that
 
         
 
         
 
         
 
         MILLEDGE V. B.Q.C., INC.
 
         Page 14
 
         
 
         
 
         date. The first reasonable date that she should be expected to 
 
         return to work is the following day, February 24, 1988.
 
         
 
              The next issue is permanent disability.  Defendants disputed 
 
         whether the injury was to a scheduled member or to the body as a 
 
         whole.  However, defendants introduced no evidence or made no 
 
         argument at hearing or in their brief to support the proposition 
 
         that the injury was to a scheduled member. A back injury is an 
 
         injury to the body as a whole.  Dr. Gooding assessed an 
 
         impairment to the whole person of 15 percent (ex. 13).  
 
         Therefore, claimant has sustained the burden of proof by a 
 
         preponderance of the evidence that the injury was the cause of 
 
         permanent disability and that she has sustained a permanent 
 
         impairment of 15 percent of the body as a whole.
 
         
 
              Defendants argue that Dr. Gooding used an improper 
 
         consideration because he stated, " ... she can more easily 
 
         re-injure it in the future than would be the case if it had never 
 
         been injured in the first place." (exs. 11 & 13). Dr. Gooding 
 
         should be allowed this latitude in making an impairment rating.  
 
         Any impairment rating is simply a professional judgment based on 
 
         many factors which will vary in the professional judgment of 
 
         different physicians.  It is determined here that a destruction 
 
         or a weakening of the body's physical structure making it more 
 
         vulnerable to additional injury is a proper consideration for a 
 
         doctor in making an impairment rating and for the industrial 
 
         commissioner or a deputy industrial commissioner in determining 
 
         industrial disability.  The Umphress case, cited by defendants, 
 
         did not hold that future problems were not a basis for industrial 
 
         disability, but rather that speculative situations that may or 
 
         may not occur in the future were not a proper basis for 
 
         industrial disability.  Umphress v. Armstrong Rubber 
 
         Company, file number 723184 (Appeal Decision August 27,  1987).  
 
         In the instant case, Dr. Gooding's opinion relates to the present 
 
         time and situation and continues on into the future.  His opinion 
 
         is definitive not speculative.
 
         
 
              The fact that Dr. Gooding used the term disability rather 
 
         than impairment is not unusual.  Both doctors and attorneys 
 
         inadvertently use the terms interchangeably, as well as, others 
 
         in the workers' compensation area. The Supreme Court of Iowa did 
 
         the same thing in Olson, 255 Iowa 1112, 125 N.W.2d 251 (1963).  
 
         The court used the term disability although it was obvious that 
 
         the court was discussing impairment ratings.  Beyer v. Iowa 
 
         Beef Processors, Inc., file number 759698, filed December 3, 
 
         1987.  Consequently, it is determined that claimant sustained a 
 
         15 percent permanent impairment to the body as a whole.  Dr. 
 
         Gooding, in the best interest of his workers' compensation 
 
         patients, should quit calling impairment disability.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         MILLEDGE V. B.Q.C., INC.
 
         Page 15
 
         
 
         
 
              At age 39, claimant is at the peak of her earnings capacity.  
 
         This makes claimant's loss more severe than it would be for a 
 
         younger or older worker. Becke v. Turner-Busch, Inc., 
 
         Thirty-fourth Biennial Report of the Industrial Commissioner 34  
 
         (Appeal Decision 1979); Walton v. B & H Tank Corp., II Iowa 
 
         Industrial Commissioner Report 426 (1981); McCoy v. Donaldson 
 
         Company, Inc., file numbers 782670 & 805200 (Appeal Decision 
 
         April 28, 1989).
 
         
 
              Claimant's earning capacity is further adversely affected by 
 
         the fact of a tenth grade education, without GED, and without any 
 
         other educational or vocational training.  Claimant has always 
 
         performed manual labor and production line jobs and has few, if 
 
         any, transferable skills.  Her lack of education or skilled 
 
         training adversely affects her employability in the competitive 
 
         labor market.
 
         
 
              Claimant has returned to work for employer doing the same 
 
         job, for the same pay, on the same shift.  Employer has accepted 
 
         her back to work even though she suffered a back injury at work, 
 
         had a lumbar laminectomy and has filed a workers' compensation 
 
         claim.  This is to employer's credit and is a factor to be 
 
         considered in determining industrial disability.  Claimant, 
 
         therefore, cannot show a loss of actual earnings at this time 
 
         even though she does have a loss of earning capacity.
 
         
 
              At the same time, this does not mean that this employer's 
 
         toleration for this injury would transfer to another job.  A work 
 
         connected back injury, a lumbar laminectomy, and a 15 percent 
 
         impairment rating to the body as a whole would reduce claimant's 
 
         ability to compete in the competitive job marketplace.  Hartwig 
 
         v. Bishop Implement Co., IV Iowa Industrial Commissioner Report 
 
         159 (Appeal Decision June 28, 1984).  Claimant might not find 
 
         other new prospective employers so gracious with these factors.  
 
         Todd v. Department of General Services, Buildings and Grounds, IV 
 
         Industrial Commissioner Report 373 (1983).
 
         
 
              In addition, even though the 25 pound weight restriction of 
 
         Dr. Gooding has expired one year after the surgery, the 25 pound 
 
         weight restriction that appears on her employment application, 
 
         which was due to the tendonitis in the left shoulder and arm, has 
 
         never been removed by whoever imposed it and reduces her 
 
         employability in the competitive labor market (tr. pp. 27 & 58; 
 
         ex. 43). In addition, claimant testified that B. Rassekh, M.D., a 
 
         neurosurgeon, who treated her earlier, told her not to lift more 
 
         than 12 pounds (tr. p. 61).  Therefore, claimant is foreclosed 
 
         from many of the most numerous, easiest to obtain and sometimes 
 
         the highest paying jobs in the competitive labor market that 
 
         require manual labor and strenuous work.  Michael v. Harrison 
 
         County, Thirty-fourth Biennial Report of the Industrial 
 
         Commissioner 218, 220 (Appeal Decision January 30, 1979);
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         MILLEDGE V. B.Q.C., INC.
 
         Page 16
 
         
 
         
 
         Rohrberg v. Griffin Pipe Products Co., I Iowa Industrial 
 
         Commissioner Report 282 (1984).
 
         
 
              Therefore, from the point of view of claimant's age of 39; 
 
         her tenth grade education and no real job skills for the 
 
         competitive labor market; her 25 pound and 12 pound weight 
 
         restrictions that preceded this injury; the 15 percent impairment 
 
         rating which was caused by this injury; the fact that claimant 
 
         has had a job-related back injury and lumbar laminectomy and 
 
         filed an action to recover under the workers' compensation  law; 
 
         and considering all of the factors used to determine industrial 
 
         disability; and employing agency expertise  [Iowa  Administrative 
 
         Procedure Act 17A.14(5)]; it is determined that claimant has 
 
         sustained a 25 percent industrial disability to the body as a 
 
         whole.
 
         
 
              The next issue is medical expenses.  In her deposition, 
 
         claimant showed Dr. Gooding's bill as $2,836, however, no 
 
         itemized bill is produced.  At hearing, claimant introduced an 
 
         itemized bill from Dr. Gooding in the amount of $2,801 (ex. 27). 
 
         An itemized bill from the hospital in the amount of $4,596.69 is 
 
         produced (ex. 26). Dirks Chiropractic Center in the amount of 
 
         $169 is supported by an itemized bill  (ex. 28).  The Walgreens 
 
         prescriptions do not total $352.36 as alleged by claimant, but 
 
         rather total $290.12 (ex. 31).  The following medical expenses 
 
         are then determined to be caused by this injury:
 
         
 
         
 
              Jennie Edmundson Hospital    $4,596.69    ex.  26
 
              Dr. Gooding                   2,801.00    ex.  27
 
              Dr. Dirks                       169.00    ex.  28
 
              Walgreens                       290.12    ex.  31
 
                                TOTAL      $7,856.81
 
         
 
              The bed in the amount of $363.95 is not allowed for a number 
 
         of reasons. First of all, it was not prescribed, only 
 
         recommended.  Second, Dr. Gooding did not recommend a bed, he 
 
         only recommended a regular mattress rather than a water mattress.  
 
         Third, there is conflicting evidence on the cost of the bed, in 
 
         exhibit 12A, the cost is shown as $260 rather than $363.95.  
 
         Fourth, claimant and Dr. Gooding must not have felt the need was 
 
         too imperative because claimant said she slept on the couch for 
 
         two months because her husband was not home.  Fifth, claimant 
 
         cites no authority to demonstrate that regular everyday personal 
 
         property in a home should be or ever has been considered a 
 
         medical expense under Iowa Code section 85.27 by this agency.
 
         
 
              Claimant contends that she contracted pneumonia after 
 
         receiving anesthesia for surgery and then lying down so much 
 
         during her recuperation at home.  This  is  quite  possible.  She 
 
         contends that the prescriptions in the total amount of $58.44, in 
 
         exhibits 34 through 39, were prescribed for the pneumonia.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         MILLEDGE V. B.Q.C., INC.
 
         Page 17
 
         
 
         
 
         Claimant's testimony does not sustain the burden of proof by a 
 
         preponderance of the evidence that these prescriptions were 
 
         necessitated by this injury. Causal connection is typically 
 
         established by expert medical testimony.  Claimant failed to 
 
         obtain any evidence from the prescribing doctors that these 
 
         prescriptions were for pneumonia which was caused by this injury 
 
         or the surgery for this injury.  The medical bills in exhibits 34 
 
         through 39 are not allowed.
 
         
 
              The next issue is the proper rate of compensation.  Claimant 
 
         is an hourly employee.  The first unnumbered paragraph of Iowa 
 
         Code section 84.36 and section 85.36(6) provides as follows:
 
         
 
                 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:
 
              
 
                                     ***
 
              
 
                 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.
 
         
 
              Lawyer and Higgs, Iowa Workers' Compensation--Law and 
 
         Practice, section 12-4, page 97:
 
         
 
                 It is not uncommon in determining the rate under
 
              section 85.36(6) for a non-salaried employee to find
 
              that there are weeks within the thirteen consecutive
 
              weeks prior to the injury that contain absences due to
 
              illness, vacation or other causes.  Since the worker
 
              often does not get paid unless he works, these weeks
 
              are not representative of his earnings.  The agency has
 
              consistently ruled that these weeks are not included in
 
              the thirteen weeks for determining the rate under Iowa
 
              Code section 85.36(6).  Instead, the "short" weeks are
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              skipped and additional weeks are included until
 
              thirteen completed consecutive weeks are accumulated
 
              for the calculation.  The rationale for this method of
 
         
 
         
 
         
 
         MILLEDGE V. B.Q.C., INC.
 
         Page 18
 
         
 
         
 
              determining the weekly earnings is based on the mandate
 
              of the first unnumbered paragraph of Iowa Code section
 
              85.36 which requires a determination of earnings to
 
              which an employee,"would have been entitled had he
 
              worked the customary hours for the full pay period in
 
              which he was injured.... "
 
         
 
         (footnotes excluded)
 
         
 
              The case of Lewis v. Aalfs Manufacturing Co., I Iowa 
 
         Industrial Commissioner Report 206 (Appeal Decision December 30, 
 
         1980) provides as follows:
 
         
 
              ... Claimant did not work 13 consecutive weeks between
 
              May 6, 1978 and the date of the injury in September
 
              1978.  However, it is clear that the requirement of 13
 
              consecutive weeks must be interpreted in light of the
 
              first unnumbered paragraph of section 85.36 which
 
              mandates that one determine the weekly earnings "at the
 
              time of the injury," and that said earnings are those
 
              to which the employee "would have been entitled had he
 
              worked the customary hours for the full pay period in
 
              which he was injured.... "  Here, as in many other
 
              cases, claimant had vacations and layoffs which broke
 
              the string of weeks.
 
              
 
                 The requisite action, then, is to determine what
 
              claimant was earning when she was hurt; subsection 6
 
              qualifies this requirement by stating a method of
 
              computation.  Reading the first unnumbered paragraph
 
              and subsection 6 together, the best method of calcula-
 
              tion would be to determine the last 13 completed con-
 
              secutive weeks...
 
         
 
              Applying the foregoing principles, the proper rate for this 
 
         case is determined as follows:
 
         
 
              The last completed pay period immediately preceding the 
 
         injury was August 16, 1987.  Working backward, then, and 
 
         selecting 13 representative weeks produces this result.  
 
         Claimant's normal work week was 40 hours.
 
         
 
         
 
               HOURS    DATE             GROSS PAY
 
         1.     40     8-16-87           $203.60
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         2.     38.1   8-09-87            195.46
 
         3.     40     8-02-87            203.60
 
         4.     40     7-26-87            203.60
 
         5.     40     7-19-87            203.60
 
         6.     40     7-12-87            196.80
 
                32     7-05-87            NOT USED-NOT REPRESENTATIVE
 
         7.     40     6-28-87            196.80
 
         
 
         
 
         MILLEDGE V. B.Q.C., INC.
 
         Page 19
 
         
 
         
 
         8.     40     6-21-87            196.80
 
                16     3-29-87            NOT USED-NOT REPRESENTATIVE
 
         9.     40     3-22-87            176.00
 
         10.    40.1   3-15-87            176.44
 
                32     3-08-87            NOT  USED-NOT REPRESENTATIVE
 
         11.    40     3-01-87            176.00
 
         12.    40     2-22-87            176.00
 
         13     40     2-15-87            176.00
 
         
 
                                         $2480.70
 
         
 
              During layoff, claimant continued to be an employee of this 
 
         employer.  To obtain 13 weeks, the layoff period is simply 
 
         eliminated from the calculation because no wages were paid during 
 
         that period of time.  Layoffs are specifically mentioned in the 
 
         Lewis case.
 
         
 
              A total of $2,480.70 divided by 13 = *Gross weekly wage of 
 
         $190.82.  Using The Guide to Iowa Workers' Compensation Claim 
 
         Handling for July 1, 1987, it shows on page 19 that the rate of 
 
         compensation for a gross weekly wage of $191 for a married person 
 
         with three exemptions is $134.12.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented, the following 
 
         findings of fact are made:
 
         
 
              That claimant has been employed by employer intermittently 
 
         due to layoffs from 1983 until the date of the hearing on 
 
         September 7, 1988.
 
         
 
              That claimant sustained an injury to her lower back on 
 
         August 20, 1987 from bending, lifting, carrying, pushing and 
 
         pulling while working an eight-hour shift as a final packer which 
 
         was not her normal job; her normal job was king operator.
 
         
 
              That the injury was a gradual onset type of injury; there 
 
         was no accident, special occurrence or specific event.
 
         
 
              That Dr. Gooding stated numerous times, as quoted in this 
 
         decision, that the injury was caused by her employment activities 
 
         on the night of August 20, 1987; and Dr. Marsh also attributed 
 
         the injury to claimant's work activities on.August 20, 1987; 
 
         there is no contradictory evidence from any other source.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That the injury caused claimant to be taken off work on 
 
         August 21, 1987 by Dr. Dirks.
 
         
 
              That claimant was continued off work by Dr. Gooding until 
 
         February 24, 1988.
 
         
 
         
 
         
 
         MILLEDGE V. B.Q.C., INC.
 
         Page 20
 
         
 
         
 
              That Dr. Gooding assessed an impairment rating of 15 percent 
 
         to the whole person.
 
         
 
              That claimant is age 39, has a tenth grade education without 
 
         a GED or any additional education or vocational training.
 
         
 
              That claimant's past employments have been manual labor or 
 
         production line types of work.
 
         
 
              That claimant has returned to work for the same employer in 
 
         the same job for the same pay.
 
         
 
              That claimant has no restrictions or limitations as a result 
 
         of this injury or the surgery.
 
         
 
              That claimant had preexisting restrictions from other 
 
         doctors at other times of:  (1) not to lift more than 25 pounds 
 
         due to tendonitis of the left shoulder and arm and (2) not to 
 
         lift more than 12 pounds imposed by Dr. Rassekh.
 
         
 
              That the combination of a work caused back injury resulting 
 
         in a lumbar laminectomy with a 15 percent impairment to the body 
 
         as a whole, which involved a litigated workers' compensation 
 
         claim, coupled with claimant's preexisting restrictions of not to 
 
         lift over 25 pounds due to her left arm and shoulder and not to 
 
         lift over 12 pounds imposed by Dr. Rassekh, severely limits 
 
         claimant's employability and,thus her earning capacity in the 
 
         competitive labor market and with other employers.
 
         
 
              That these factors foreclose many jobs in the competitive 
 
         labor market.
 
         
 
              That claimant has sustained an industrial disability of 25 
 
         percent to the body as a whole.,
 
         
 
              That the rate of compensation is determined to be $134.12 
 
         per week as shown above.
 
         
 
              That claimant incurred medical expenses of:  (1) Jenny 
 
         Edmundson Hospital-$4,596.69; (2) R. Schuyler Gooding-$2,801; (3) 
 
         Dirks Chiropractic Center $169; and (4) Walgreens-$290.12 caused 
 
         by this injury.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the evidence presented and the foregoing 
 
         principles of law, the following conclusions of law are made:
 
         
 
              That claimant sustained an injury on August 20, 1987, which 
 
         arose out of and in the course of employment with employer.
 
         
 
         
 
         
 
         MILLEDGE V. B.Q.C., INC.
 
         Page 21
 
         
 
         
 
              That the injury was the cause of temporary disability 
 
         benefits from August 21, 1987 to March 24, 1988.
 
         
 
              That the injury was the cause of permanent disability.
 
         
 
              That claimant sustained a 25 percent industrial disability 
 
         to the body as a whole.
 
         
 
              That claimant is entitled to 125 weeks of permanent partial 
 
         disability benefits.
 
         
 
              That the proper rate of compensation is $134.12 per week.
 
         
 
              That claimant is entitled to the medical expenses enumerated 
 
         above in the findings of fact, which total $7,856.81.
 
         
 
              That claimant is not entitled to recover the expenses shown 
 
         in claimant's exhibits 34 through 40 for certain prescription 
 
         drugs and a bed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant twenty-six point eight five 
 
         seven (26.857) weeks of healing period benefits to claimant for 
 
         the period from August 21, 1987 to February 24, 1988 at the rate 
 
         of One Hundred Thirty-four and 12/100 Dollars ($134.12) per week 
 
         in the total amount of Three Thousand Six Hundred Two and 06/100 
 
         Dollars ($3,602.06) commencing on August 21, 1987.
 
         
 
              That defendants pay to claimant one hundred twenty-five 
 
         (125) weeks of permanent partial disability benefits at the rate 
 
         of One Hundred Thirty-four and 12/100 Dollars ($134.12) in the 
 
         total amount of Sixteen Thousand Seven Hundred Sixty-five Dollars 
 
         ($16,765) commencing on February 24, 1988.
 
         
 
              That all accrued benefits are to be paid in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That defendants paid no benefits of any kind prior to 
 
         hearing and therefore, no credits are due to defendants.
 
         
 
              That defendants pay to claimant or the provider of medical 
 
         services the medical expenses in the amount of Seven Thousand 
 
         Eight Hundred Fifty-six and 81/100 Dollars ($7,856.81) as 
 
         itemized above in the findings of fact.
 
         
 
         
 
         
 
         MILLEDGE V. B.Q.C., INC.
 
         Page 22
 
         
 
         
 
              That the costs of this action are charged to defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33, 
 
         including the cost of the transcript of the hearing.
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1
 
         
 
              Signed and filed this 10th day of January, 1990.
 
         
 
         
 
         
 
         
 
         
 
                                         WALTER R. McMANUS, JR.
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Jacob J. Peters
 
         Attorney at Law
 
         233 Pearl St
 
         PO Box 1078
 
         Council Bluffs, IA  51502
 
         
 
         Mr. Philip Willson
 
         Attorney at Law
 
         PO Box 249
 
         370 Midlands Mall
 
         Council Bluffs, IA  51502
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                 51106; 51108.50; 51401;            51402.20;
 
                                              51402.30; 51402.40; 
 
         51402.60;                                        51802
 
                                              51803; 51803.10; 52206; 
 
         2500;                                            2700;
 
                                              3001; 3002; 3003
 
                                              Filed January 10, 1990
 
                                              Walter R. McManus, Jr.
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         SHERYL MILLEDGE,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 File No.  858610
 
         B.Q.C., INC.,
 
                                              A R B I T R A T I 0 N
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         WAUSAU INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         51106; 51108.50; 51401; 51402.20; 51402.30; 51402.40; 51402.60;
 
         51802; 51803; 51803.10; 52206
 
         
 
              Claimant proved injury, causal connection, body as whole vs. 
 
         scheduled member, and entitlement to temporary and permanent 
 
         disability benefits.  She had a long-standing bad back, but the 
 
         only physician said several times that her work caused the 
 
         injury.  Work caused the preexisting condition to become 
 
         symptomatic.
 
         
 
              Healing period was for her time off work.
 
         
 
              Permanent partial disability (industrial disability) was 
 
         determined to be 25 percent based on a 15 percent impairment 
 
         rating, age 39, tenth grade education with no GED, past 
 
         employments of manual labor and production line jobs, a 
 
         preexisting restriction not to lift more than 25 pounds, and 
 
         another preexisting restriction not to lift more than 12 pounds.  
 
         Claimant returned to the same job, pay, shift and supervisor, but 
 
         her earning capacity in the competitive labor market was 
 
         definitely reduced.  Also added was the fact that she is now an 
 
         employee with a work-related back injury that involved surgery 
 
         and that she litigated a workers' compensation claim.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         MILLEDGE V. B.Q.C., INC.
 
         Page 2
 
         
 
         
 
         2500; 2700
 
         
 
              Claimant was sleeping in a water bed on a water mattress.  
 
         The doctor recommended a high quality, firm, regular  mattress.  
 
         Claimant was not allowed the expense of a new bed with a new hard 
 
         mattress.  The doctor did not prescribe it, he only recommended 
 
         it; he only recommended a mattress not a complete bed unit; 
 
         claimant introduced two different price figures as the cost  of 
 
         the bed; and claimant cited no cases to support that the payment 
 
         of regular everyday personal property in a home should be, or 
 
         ever has been, considered a medical expense.
 
         
 
              Claimant contended lying down after anesthesia caused 
 
         pneumonia and that this necessitated certain prescriptions for 
 
         decongestants.  These were denied.  Claimant's contention is 
 
         entirely possible, but it is a matter that requires a  statement 
 
         from a physician to establish causal connection.  She presented 
 
         no medical evidence to support her claim.
 
         
 
              Claimant was entitled to other medical benefits ($7,856.81) 
 
         based on itemized bills introduced in evidence accurately added 
 
         up.  There were discrepancies between those alleged in the 
 
         interrogatories and the bills presented at hearing.  Also, 
 
         claimant did not add pharmacy bills correctly.
 
         
 
         3001; 3002; 3003
 
         
 
              Rate was calculated using the last 13 representative weeks 
 
         citing section 85.36, 85.36(6), Lawyer and Higgs and Lewis  vs. 
 
         Aalfs.  This meant the elimination of two 32-hour weeks because 
 
         claimant usually worked a 40-hour week.  This meant the 
 
         elimination of a period of layoff and going back until 13 
 
         representative weeks were available for the calculation.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         NORMA J. WRIGHT,
 
              
 
              Claimant,                                File No. 858615
 
              
 
         vs.                                        A R B I T R A T I O N
 
                                                 
 
         SUPER 8 LODGE OF DES MOINES,                  D E C I S I O N
 
                                            
 
              Employer,
 
                                                          F I L E D
 
         and
 
                                                         FEB 20 1990
 
         UNITED STATES FIDELITY &
 
         GUARANTY CO.                                INDUSTRIAL SERVICES
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Norma J. 
 
         Wright, claimant, against Super 8 Lodge of Des Moines, employer 
 
         and United States Fidelity and Guaranty Co., insurance carrier, 
 
         defendants, for benefits as the result of an alleged injury that 
 
         occurred on May 10, 1985.  A hearing was held in Des Moines, 
 
         Iowa, on December 27, 1988, and the case was fully submitted at 
 
         the close of the hearing.  Claimant was represented by Fredd J. 
 
         Haas. Defendants were represented by Iris J. Post.  The record 
 
         consists of the testimony of Norma J. Wright, claimant; Susan 
 
         Thompson, current manager; joint exhibits 1 through 16 and 
 
         claimant's exhibit 1.  The deputy ordered a transcript of the 
 
         hearing.  Both attorneys submitted outstanding briefs.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters at the time 
 
         of the hearing:
 
         
 
              That an employer-employee relationship.existed between 
 
         claimant and employer at the time of the alleged injury.
 
         
 
              That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is industrial 
 
         disability to the body as a whole.
 
         
 
              That the rate of compensation, in the event of an award, is 
 
         $105.33 per week.
 
         
 
              That defendants make no claim for employee nonoccupational 
 
         group health plan benefits paid prior to hearing.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              That defendants have paid 133 weeks of workers' compensation 
 
         benefits to claimant at the rate of $105.33 per week prior to 
 
         hearing.
 
         
 
              That there are no bifurcated claims.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether claimant sustained an injury on May 10, 1985, which 
 
         arose out of and in the course of employment with employer.
 
         
 
              Whether the alleged injury was the cause of either temporary 
 
         or permanent disability.
 
         
 
              Whether claimant is entitled to either temporary or 
 
         permanent disability benefits, and if so, the nature and extent 
 
         of benefits to which she is entitled.
 
         
 
              Whether claimant is entitled to a TENS unit and an exercycle 
 
         under the provisions of Iowa Code section 85.27.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Claimant, born May 4, 1939, was 45 years old at the time of 
 
         the injury and 49 years old at the time of the hearing.  She 
 
         completed the tenth grade of high school and does not have a GED. 
 
         She received average grades in school, but repeated fifth grade. 
 
         She started to work at age 16 sorting mail for a year and 
 
         one-half.  She then became an addressograph operator and 
 
         microfiche reader for approximately six years, except for a 
 
         period of time when she bore two children.  Other prior 
 
         employments include machine operator making cosmetic labels, 
 
         grill cook, kitchen employee, convenience store clerk and 
 
         cashier, motel maid, laundry person and assistant housekeeper.  
 
         Claimant's detailed employment history is set out in answer to 
 
         interrogatory number 10 (exhibit 8).
 
         
 
              Claimant injured her low back while working at the 
 
         convenience store and injured her right arm at the other motel. 
 
         Her tailbone was removed in 1969 after an accident at home. 
 
         Claimant denied any residual back problems and was able to 
 
         perform all of her jobs prior to this employer without 
 
         difficulty.
 
         
 
              Claimant started to work for employer in January of 1985 in 
 
         the laundry room.  Later she became a maid and eventually 
 
         assistant housekeeper.  On May 7, 1985, she was told that if she 
 
         wanted a job she would have to go to cleaning rooms.  Prior to 
 
         this time, she had no physical problems performing maid work.  
 
         The first day back at maid work wasn't so bad.  On the second day 
 
         she started feeling pulling and hurting in her back.  Every day 
 
         they added one or two more rooms to her list.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              On May 10, 1985, her son and another employee saw claimant 
 
         was having difficulty and they went ahead of her and cleaned her 
 
         bathrooms.  At afternoon break time, claimant got up, walked to 
 
         the middle of the floor and had to lay down because she had pain 
 
         in the middle of her back and some numbness in her legs.  An 
 
         ambulance was called and claimant was taken to the emergency room 
 
         at Mercy Hospital where they gave her a shot and a prescription 
 
         and sent her home with her son (ex. 8, pages 34-38).  She was to 
 
         stay off work for five days, but was off work for ten days, until 
 
         May 20, 1985.  The release to return to work read as follows, 
 
         "The above has had an Acute Strain of the lumbosacral back.  She 
 
         may return to work on 5/20/85 but not on room service." (ex. 11, 
 
         p. 8; transcript p. 41).
 
         
 
              When she returned to work, the assistant housekeeper, Karen 
 
         Larocque, told her that they didn't need her anymore and that she 
 
         no longer had a job.  The manager, Greg Bodenhamer, said it would 
 
         be better for her health if they let her go (tr. p. 41).  A 
 
         termination report signed by Bodenhamer, dated May 21, 1985, 
 
         shows the reason for separation as health, "She has cripling 
 
         [sic] arthiritis [sic] was not reported till incident occured 
 
         [sic].  No alternate positions available." (ex. 11, p. 1).
 
         
 
              Diary notes of the assistant housekeeper, Karen Larocque, 
 
         dated May 8, May 10 and May 20 show there was considerable 
 
         friction between Larocque and claimant.  Larocque had demoted 
 
         claimant for not communicating to her what happened on weekends 
 
         when Larocque was not there.  Claimant's relatives, who also 
 
         worked there, demanded a meeting.  Somehow Larocque picked up the 
 
         idea that claimant had crippling arthritis.  Larocque felt that 
 
         if claimant could not clean rooms, then she was also unable to 
 
         perform the laundry room duties (ex. 11, pp. 2-8).
 
         
 
              Earlier, claimant was counselled by Bodenhamer on April 22, 
 
         1985, for not communicating with Larocque.  The counselling 
 
         statement was signed by Bodenhamer and Larocque.  In the 
 
         employee's signature block is an "x" and these comments, "was not 
 
         given this report to sign", followed by Bodenhamer's initials 
 
         (ex. 11, p. 9).  Claimant received a good initial employment 
 
         interview report on December 31, 1984 (ex. 11, p. 10) at the time 
 
         she applied for the job (ex. 11, p. 11).  She had applied for a 
 
         housekeeper's job and was interviewed by both Bodenhamer and 
 
         Larocque.  Claimant was not sure why they thought she had 
 
         crippling arthritis (tr. p. 41).
 
         
 
              Claimant testified she was treated by Carlton Van Natta, 
 
         M.D., her personal physician, initially.  Dr. Van Natta saw 
 
         claimant on May 13, 1985, July 31, 1985, September 13, 1985 and 
 
         November 5, 1985.  Dr. Van Natta took claimant off work a second 
 
         time on July 30, 1985.  His office notes say, "Rx No Work" (ex. 
 
         5, p. 20).  He sent her to see Steven R. Adelman, D.O., a 
 
         neurologist.  Later Dr. Van Natta sent her to see Robert F. 
 
         Breedlove, M.D., an orthopedic surgeon.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              The emergency room note from Mercy Hospital indicates 
 
         claimant was seen on May 10, 1985 for "LS strain".  She gave a 
 
         history of changing work for employer recently and when she stood 
 
         up from a chair she developed pain in the lumbosacral area and 
 
         could not move her legs.  She also told them she had a history of 
 
         arthritis (ex. 6, p. 27; tr. p. 42).  The Iowa Ambulance Care 
 
         Report shows they found claimant prone on the floor complaining 
 
         of lower lumbar pain resulting from rheumatoid arthritis of the 
 
         spine (ex. 6, p. 28).
 
         
 
              Dr. Adelman saw claimant for back pain.  He reported on June 
 
         25, 1985, that she is a 46-year-old woman with a chronic history 
 
         of low back pain which had increased in severity and frequency 
 
         over the past three to four months.  He said, "Her neurologic 
 
         examination is essentially unremarkable.  I suspect we are 
 
         primarily dealing with lumbosacral strain.  I see no evidence of 
 
         a lumbosacral radiculopathy." (ex. 1, p. 2).
 
         
 
              Claimant denied any knowledge of arthritis in her spine 
 
         prior to the CT scan in November of 1985 (tr. p. 42).  However, 
 
         claimant acknowledged in a statement to the insurance adjuster on 
 
         June 17, 1985, that she had her tailbone removed in 1969 and that 
 
         since then she has had arthritis in her spine (ex. 8, p. 2; ex. 
 
         12). Claimant's major items of health history are given in 
 
         response to interrogatory six, to include a hysterectomy in 1972, 
 
         esophagogastroduodenoscopy in 1977 and a cholescystectomy in 1977 
 
         (ex. 8).  She has been seen at the emergency room and treated by 
 
         Dr. Van Natta for other problems over the years which do not 
 
         appear to be related to this injury (exs 2, 5 & 6).
 
         
 
              Claimant's income tax returns indicated that she earned 
 
         nothing in 1980 and 1981; $4,309 in 1982; nothing in 1983; $3,826 
 
         in 1984; $2631 in 1985 and nothing in 1986.(ex. 9).  Claimant's 
 
         personnel file with a former motel employer showed conflicts of 
 
         personality with superiors which resulted in her termination, but 
 
         her review ratings were good and she received a raise while there 
 
         (ex. 10).  The telephone statement to the insurance adjuster 
 
         appears a second time (ex. 12).  The workers' compensation claim 
 
         against a former motel employer for an injury to her arm and 
 
         breast are in evidence (ex. 13).
 
         
 
              Dr. Van Natta gave a report on February 15, 1986 (ex. 5).  
 
         He also gave a deposition on December 21, 1988 (ex. 14).  He last 
 
         examined claimant on November 18, 1985 for this injury.  He last 
 
         saw her on April 30, 1986, but she did not complain of her back 
 
         at that time.  He did not treat her after the car accident of 
 
         October 12, 1987 and had no knowledge of that incident.  He did 
 
         not know when she reached maximum healing because he did not 
 
         treat her, but referred her treatment to Dr. Breedlove.  At that 
 
         time, he ordered a CT scan and an EMG.  The EMG showed no 
 
         peripheral neuropathy or nerve damage.  The CT scan showed 
 
         degenerative arthritis in the area of L4 and a decrease in the 
 
         size of the disc (ex. 14, pp. 1-17).  Dr. Van Natta did not know 
 
         when she could return to work because he was leaving this up to 
 
         the doctors he had referred her out to (ex. 14, pp. 17-21).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Breedlove recorded visits for claimant on November 21, 
 
         1985; December 31, 1985; February 4, 1986; March 20, 1986 and May 
 
         8, 1986.  He reported to the insurance company on November 21, 
 
         1985 and again on July 29, 1986 (ex. 4).  He gave a deposition on 
 
         December 20, 1988, in which he stated he has been a board 
 
         certified orthopedic surgeon since July of 1985 (ex. 16).  She 
 
         gave this injury as the history for her back complaints.  She 
 
         also mentioned the earlier injury requiring the removal of her 
 
         tailbone.  Her physical examination was essentially normal.  The 
 
         x-rays and CAT scan she brought with her did not indicate any 
 
         evidence of a herniated or ruptured disc.  There was some 
 
         increased reactivity or sclerosis at the L3-L4 vertebral body 
 
         levels which he felt were probably older than the six months that 
 
         she had been having her pain.  The problem at L3, L4 was 
 
         something that preexisted the injury of May 10, 1985 (ex. 16, pp. 
 
         1-7).
 
         
 
              Claimant did not have a herniated disc (ex. 16, p. 7).  He 
 
         diagnosed that she probably had a chronic back strain, 
 
         ligamentous type of injury.  Dr. Breedlove determined that part 
 
         of her problems were contributed to as a result of her cleaning 
 
         the rooms (ex. 16, p. 8).  On November 21, 1985, he advised her 
 
         to continue to stay off work, prescribed Motrin three times a 
 
         day, and instructed her to return in three weeks (ex. 16, p. 8).  
 
         On December 21, 1985, she was doing better and he sent her to the 
 
         Mercy Wellness pool program for water exercises.  Claimant was 
 
         doing extremely well on February 4, 1986..  On February 4, 1986, 
 
         he continued the pool program and prescribed a back corset.  On 
 
         May 8, 1986, she was walking several miles a day, riding a 
 
         bicycle ten miles a day, with minimal discomfort, and she had 
 
         lost 11 pounds.  On July 17, 1986, claimant was unhappy with his 
 
         decision to discontinue physical therapy and to release her to 
 
         return to work full time (ex. 16, p. 11).  He did not feel it was 
 
         medically indicated for her to walk on a treadmill and ride a 
 
         bicycle when she could walk outdoors and purchase an exercycle 
 
         for the exercise aspect (ex. 4, p. 6).  He concluded his report 
 
         to the carrier on July 29, 1986 as follows:
 
         
 
              On physical examination today she had forward flexion of 80 
 
              degrees, lateral bending to the left at 20 degrees, lateral 
 
              to the right of 20 and 15 degrees of rotation, both to the 
 
              left and right, with 0 degrees of extension.  This computes 
 
              to 1% impairment for flexion, 2% each for lateral bending, 
 
              3% each for rotation, and 3% for extension for a total of 
 
              14% permanent partial impairment of the whole body.  I have 
 
              told her I do not have anything further to offer her at this 
 
              time.
 
         
 
              It may be of benefit to the patient for your company to 
 
              purchase an exercycle for her that she might use in her home 
 
              in the future.
 
         
 
         (ex. 4, pp. 6 & 7)
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              The release to return to work on July 17, 1986, was without 
 
         restrictions (ex. 16, p. 12).  Claimant agreed there were no 
 
         restrictions (tr. p. 45).  The functional impairment rating was 
 
         all based on loss of range of motion and nothing was allowed for 
 
         pain (ex. 16, p. 13).  Dr. Breedlove attributed 25 percent of her 
 
         impairment to preexisting problems, wear and tear and aging.  He 
 
         attributed 75 percent of the impairment rating to the injury of 
 
         May 10, 1985 because she was asymptomatic at the time of the 
 
         injury (ex. 16, pp. 13 & 14).
 
         
 
              Claimant came back to see Dr. Breedlove in July 1987 with 
 
         low back and right leg pains, headaches and restless nights.  He 
 
         instructed her to continue with her physical therapy, he 
 
         prescribed a TENS unit and prescribed Motrin again three times a 
 
         day.  She was to return in six weeks time if she was having 
 
         problems, but she did not come back (ex. 16, pp. 14 & 15).
 
         
 
              The fact there was no radiculopathy on November 25, 1985, 
 
         meant there was no herniated or ruptured disc; it meant the 
 
         problem was confined to her low back and that it was only a 
 
         mechanical problem and not a neurological problem (ex. 16, p. 
 
         17). The term sclerosis he used would better be stated reaction 
 
         or reactivity from stress, injury at a fracture, infection, or 
 
         tumors.  Claimant's problem was a mechanical problem of wear and 
 
         tear and degenerate changes involving the bodies of L3 and L4 
 
         from an ongoing process over a period of time (ex. 16, p. 18).  
 
         Claimant was not obese, but was overweight for her age and 
 
         height, which adversely affects the back, but claimant did lose 
 
         weight during the course of her recovery (ex. 16, p. 19).
 
         
 
              Dr. Breedlove's functional impairment rating was based on 
 
         the AMA Guides.  He did not know if she returned to work or not 
 
         on July 17, 1986, when he released her.  She told him that she 
 
         could not work due to her pain (ex. 16, p. 20).  Her degenerative 
 
         condition was not strictly arthritis which occurs between joints 
 
         and between bones, but her degenerative changes were on the 
 
         vertebral bodies and are an indication of the process of aging, 
 
         wear and tear.
 
         
 
              Dr. Breedlove last saw claimant on July 31, 1987 (ex. 16, p. 
 
         22).  At that time she was to take physical therapy, wear a 
 
         corset and she was to get a TENS unit, and she was to return in 
 
         six weeks (mid-September 1987), but did not show up.  She also 
 
         failed to keep appointments on January 14, 1987 and August 2, 
 
         1988.  He thought these may have been appointments she made, but 
 
         then felt better and did not keep the appointment (ex. 16, pp. 21 
 
         & 22).
 
         
 
              Dr. Breedlove signed a prescription for "An exercise 
 
         bicycle" and a "TENS unit for chronic low back and right hip 
 
         pain".  The prescriptions are undated (ex. 15).
 
         
 
              On July 31, 1987, Dr. Breedlove noted that claimant was to 
 
         continue her physical therapy program and that he had given her a 
 
         prescription for a TENS unit and 800 mg of Motrin (ex. 15, p. 2).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant testified she never did receive a TENS unit or an 
 
         exercise bicycle (tr. p. 47).  The insurance carrier denied both 
 
         items by letter to claimant's counsel dated March 17, 1988.  The 
 
         carrier did authorize a one year membership at the closest YMCA 
 
         and remarked that an exercycle can be used there (Claimant's ex. 
 
         1).
 
         
 
              Claimant's only employment since the injury is watching 
 
         children at a day care facility.  There is no lifting or 
 
         cleaning. She took this job in February or March of 1988.  She 
 
         earns $4 per hour and works 20 to 25 hours per week.  She 
 
         characterized this job as a permanent part-time job.  There are 
 
         no employee benefits (tr. pp. 47-49).  There is no evidence 
 
         claimant searched for or applied for any other employment.
 
         
 
              Claimant testified that she continued to have sharp low back 
 
         pains, her feet are always cold, she has trouble with her ankles 
 
         and her right hip feels like it is pushing out and her left leg 
 
         draws back.  Pursuant to Dr. Breedlove's instructions she takes a 
 
         whirlpool bath in the morning to get started and she walks when 
 
         the weather permits.  After working all day, her ankles swell up 
 
         (tr. pp. 49-53).  She has not seen a doctor since she saw Dr. 
 
         Breedlove in July of 1987 (tr. p. 54).  Claimant explained that 
 
         she did not keep the appointment with Dr. Breedlove on August 2, 
 
         1988 because his nurse called her at work and told her that "he 
 
         didn't do backs anymore" and the nurse referred her to go to 
 
         another doctor.  She wanted to see him because she was having 
 
         pain (tr. p. 54).
 
         
 
              Claimant testified that she can no longer vacuum or carry 
 
         groceries.  She purchased her own exercise bicycle and works out 
 
         on it 15 minutes a day (tr. p. 59).  Claimant contended she was 
 
         unable to do any kind of motel work except checking rooms (tr. p. 
 
         60).  Claimant acknowledged she was in a car accident in October 
 
         1987 and received a head injury.  She was not aware that cervical 
 
         x-rays showed mild to moderate degenerative changes at C5, C6 and 
 
         C7.
 
         
 
              Susan Thompson, the current manager, was assistant manager 
 
         at the time of the injury.  She stated claimant was earning $3.60 
 
         per hour at the time of her injury.  Claimant had started in 
 
         January with $3.35 per hour (tr. pp. 80 & 81).  She found 
 
         claimant laying on the floor immediately after her injury.  
 
         Claimant's son was getting her ice.  The son told Thompson that 
 
         his mother had crippling arthritis, she had an attack and that he 
 
         was putting her in ice.  Thompson called an ambulance.  Prior to 
 
         that time Thompson did not know claimant had any problem with her 
 
         back. Thompson believed that the job of laundry room was as 
 
         strenuous as that of maid or room checker (tr. pp. 82 & 83).  The 
 
         witness agreed with claimant's counsel that the reason for 
 
         claimant's termination, as shown on the jacket of her personnel 
 
         file, was stated as, "Health problem, no available position that 
 
         doesn't require lifting or bending."  Claimant's counsel compared 
 
         this with the termination which stated, "She has cripling [sic] 
 
         arthirtis [sic].  Was not reported till incident occured [sic].  
 
         No alternate positions available." (ex. 11, p. 1).  Even when she 
 
         was terminated, the quality of her work was marked good (ex. 11, 
 
         p. 1; tr. pp. 83-86).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received an injury on May 10, 1985, which arose 
 
         out of and in the course of her employment.  McDowell v. Town of 
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of May 10, 1985, is causally related 
 
         to the disability on which she now bases her claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility 
 
         is insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language. 
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id., at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
         N.W.2d 128 (1967).
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W.2d 899, 902 (1935) as follows:  "It is therefore 
 
         plain that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he.is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that she sustained an injury on May 10, 1985, 
 
         which arose out of and in the course of her employment with 
 
         employer.  Claimant's testimony, Thompson's testimony, the 
 
         consistent history given to all of the doctors, and the testimony 
 
         of Dr. Breedlove that this injury contributed to her preexisting 
 
         back condition (ex. 16, p. 8), establish that the incident of May 
 
         10, 1985, at work, was the cause of an injury to her back on that 
 
         date.  Both parties agree that claimant had a number of back 
 
         complaints prior to this injury.  All of the doctors spoke of her 
 
         long-term complaints and the chronic degenerative condition of 
 
         her back.  Dr. Breedlove, however, stated that making beds 
 
         contributed to the resulting problems after May 10, 1985.  He 
 
         considered that she was basically asymptomatic from any serious 
 
         injury prior to that date (ex. 16, pp. 13 & 14).  Dr. Breedlove's 
 
         testimony is not controverted by any other doctor.
 
         
 
              Dr. Breedlove's testimony also established the injury was 
 
         the cause of both temporary and permanent disability.  Dr. 
 
         Breedlove said that cleaning rooms contributed to her injury.  A 
 
         cause is proximate if it is a substantial factor in bringing 
 
         about a result.  It only needs to be one cause; it does not have 
 
         to be the only cause.  Blacksmith v. All-American, Inc., 290 
 
         N.W.2d 348 (Iowa 1980).  The fact that Doctors Van Natta and 
 
         Adelman proceeded to treat claimant on the basis of the history 
 
         of this injury, and did not suggest any other cause for her 
 
         complaints of current pain, support Dr. Breedlove's opinion on 
 
         causal connection.  Defendants did not show any other cause for 
 
         claimant's disability other than a chronic degenerative back 
 
         condition and Dr. Breedlove took that into consideration and 
 
         still found that this injury was the cause of claimant's current 
 
         temporary and permanent disability.  He apportioned the permanent 
 
         disability.  Defendants' proposition that this injury was only a 
 
         temporary aggravation of a preexisting condition is not supported 
 
         by a physician's opinion on that point.
 
         
 
              As to temporary disability benefits, on May 13, 1985, Dr. 
 
         Van Natta took claimant off work from May 10, 1985, the date of 
 
         the injury, to May 20, 1985.  When Dr. Adelman saw claimant on 
 
         June 25, 1985, he did not take claimant off work or suggest that 
 
         she was unable to work.  Claimant has proven that Dr. Van Natta 
 
         took claimant off work again on July 31, 1985, by his office 
 
         note, "Rx No Work" on that date.  Dr. Breedlove returned claimant 
 
         to work on July 17, 1986, after a generous course of physical 
 
         therapy and a long period of recuperation.  That was the date he 
 
         gave in his deposition testimony.  His letter on July 29, 1985 
 
         was reporting her relapse because of claimant's dissatisfaction 
 
         with his decision on July 17, 1985, to discontinue her physical 
 
         therapy and return her to work full time earlier on July 17, 
 
         1985.  Therefore, claimant is entitled to healing period benefits 
 
         from May 10, 1985 to May 20, 1985 and again.from July 31, 1985 to 
 
         July 17, 1986.
 
         
 
              As to permanent disability, Dr. Breedlove determined that 75 
 
         percent of 14 percent was permanent impairment caused by the 
 
         injury of May 10, 1985.  This works out to a permanent physical 
 
         impairment rating of 10.5 percent.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant was 45 years old at the time of the injury and 49 
 
         years old at the time of the hearing.  Earlier, her work history 
 
         was quite regular, but in later years it is not.  The income tax 
 
         returns from 1980 through 1986 show only sporadic and modest 
 
         amounts of income.  Claimant has been married for several years 
 
         and is apparently supported by her husband.
 
         
 
              Claimant only completed the tenth grade and has not been 
 
         motivated to obtain a GED or advance herself in any other 
 
         educational program.  She did not demonstrate a serious search or 
 
         any search to find a full-time job since this injury on May 10, 
 
         1985.  She appears to be happy with the permanent part-time, 
 
         20-25 hours a week job, simply watching children, which she 
 
         started in February or March of 1988.  She earns $4 per hour in 
 
         that job, whereas she was only making $3.60 per hour when she was 
 
         injured. Dr. Breedlove did not impose any restrictions on 
 
         claimant nor did any other doctor.  Her employment limitations 
 
         appear to be self-imposed.
 
         
 
              Based on all of the foregoing considerations, and all of the 
 
         factors used to determine industrial disability; Olson, 255 Iowa 
 
         1112, 1121, 125 N.W.2d 251, 257 (1963); Peterson v. Truck Haven 
 
         Cafe, Inc., Vol. I No. 3 State of Iowa Industrial Commissioner 
 
         Decisions 654, 658 (Appeal Decision February 28, 1985); and 
 
         relying on agency expertise [Iowa Administrative Procedure Act 
 
         17A.14(5)], it is determined that claimant has sustained 15 
 
         percent industrial disability to the body as a whole.
 
         
 
              As to the medical issues, claimant is entitled to a TENS 
 
         unit and an exercise bicycle.  Both items were prescribed by Dr. 
 
         Breedlove on a regular prescription form (ex. 15).  Furthermore, 
 
         Dr. Breedlove's testimony, claimant's testimony and Dr. 
 
         Breedlove's letter, dated July 29, 1986, clearly show he intended 
 
         her to have these items.  These prescriptions are consistent with 
 
         his treatment program for claimant.  These prescriptions are 
 
         reasonable medical treatment.  Defendants have the choice of 
 
         renting them for claimant or purchasing them for claimant. 
 
         Defendants chose to deny liability and therefore, were not 
 
         entitled to choose the care under Iowa Code section 85.27.  The 
 
         long-standing precedent of this agency is that defendants cannot 
 
         dispute liability for the injury and at the same time be entitled 
 
         to choose the medical care.  Barnhart v. MAQ, Inc., I Iowa 
 
         Industrial commissioner Report 16, (Appeal Decision 1981); 
 
         Kindert v. Ft. Des Moines Hotel, Vol. I, NO. 3 State of Iowa 
 
         Industrial Commissioner Decisions, 611 (Appeal Decision 1985); 
 
         Hameister v. Park View Manor, file no. 721585 (Appeal Decision 
 
         October 31, 1986); Mason v. Thermo-Gas, file nos. 819978 & 
 
         816116, (Appeal Decision filed July 28, 1989).
 
         
 
              Voluntary payment of workers' compensation benefits is not 
 
         an admission of liability.  Iowa Code section 86.13.  By 
 
         unwritten agency precedent, voluntary payments of medical 
 
         expenses are not an admission of liability.  Claimant's only 
 
         standard then, is reasonable care for treatment caused by the 
 
         injury.  Hartzer v. Swift Independent Packing Company, file no. 
 
         786164 filed January 31, 1990.  It was Dr. Breedlove's idea for 
 
         the TENS unit and the exercise bicycle.  Therefore, these items 
 
         are determined to be reasonable.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Even if defendants had admitted liability and were entitled 
 
         to choose the care, they were not entitled to control what tests 
 
         or treatment modalities that could be administered or prescribed 
 
         by the treating physician.  Defendants can choose the physician. 
 
         The physician is entitled to use his own professional judgment on 
 
         what care claimant is to receive.  Pote v. Mickow Corporation, 
 
         file no. 694639 filed June 17, 1986.
 
         
 
              Defendants are ordered to provide claimant with a TENS unit 
 
         and an exercise bicycle on a daily basis as soon as it can be 
 
         accomplished after the date of this decision.  If it is necessary 
 
         for claimant to travel from her home in Elkhart, Iowa, to use 
 
         these facilities, then she is also entitled to medical mileage. 
 
         Iowa Code section 85.27.  The last time claimant saw Dr. 
 
         Breedlove, he wanted her to have a TENS unit and to continue to 
 
         exercise and use an exercise bicycle.  Since claimant is still 
 
         complaining of pain and discomfort the need for the TENS unit and 
 
         exercise bicycle still exists.  Claimant should be provided with 
 
         these items as soon as possible.  Defendants introduced no 
 
         evidence (medical or otherwise) that a TENS unit or exercise 
 
         bicycle were not reasonable medical treatment.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented, the following 
 
         findings of fact are made:
 
         
 
              That claimant sustained an injury on May 10, 1985 when she 
 
         was unable to straighten up after performing strenuous work as a 
 
         housekeeper for employer that day.
 
         
 
              That Dr. Breedlove said that cleaning rooms that day 
 
         contributed to the cause of her injury.
 
         
 
              That claimant was taken off work by Dr. Van Natta from May 
 
         10, 1985 to May 20, 1985.
 
         
 
              That Dr. Van Natta took claimant off work again on July 31, 
 
         1985.
 
         
 
              That claimant was not returned to work until July 17, 1986 
 
         by Dr. Breedlove.
 
         
 
              That Dr. Breedlove awarded a 10.5 percent permanent 
 
         impairment rating caused by this injury.
 
         
 
              That claimant was age 45 at the time of the injury and age 
 
         49 at the time of the hearing.
 
         
 
              That claimant has a tenth grade education and no GED.
 
         
 
              That no restrictions were placed on claimant by any 
 
         physician.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              That claimant has not sought full-time employment since the 
 
         injury.
 
         
 
              That claimant was earning $3.60 per hour from employer at 
 
         the time of the injury and is now earning $4 per hour at her 
 
         permanent part-time job watching children at a day care center 
 
         which she began in February or March of 1988.
 
         
 
              That claimant had a chronic degenerative back condition 
 
         prior to this injury, but Dr. Breedlove said it was asymptomatic 
 
         at the time of the injury.
 
         
 
              That claimant has sustained a 15 percent industrial 
 
         disability to the body as a whole.
 
         
 
              That Dr. Breedlove prescribed a TENS unit and an exercise 
 
         bicycle.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the evidence presented and the foregoing 
 
         principles of law, the following conclusions of law are made:
 
         
 
              That claimant sustained an injury on May 10, 1985, which 
 
         arose out of and in the course of employment with employer.
 
         
 
              That the injury was the cause of temporary disability.
 
         
 
              That claimant is entitled to healing period benefits from 
 
         May 10, 1985 to May 20, 1985 (1.429 weeks) and again from July 
 
         31, 1985 to July 17, 1986 (50.143 weeks).
 
         
 
              That claimant is entitled to 51.572 weeks of healing period 
 
         benefits.
 
         
 
              That the injury was the cause of permanent disability.
 
         
 
              That claimant sustained an industrial disability of 15 
 
         percent to the body as a whole.
 
         
 
              That claimant is entitled to 75 weeks of permanent partial 
 
         disability benefits.
 
         
 
              That Claimant is entitled to a TENS unit, an exercise 
 
         bicycle and medical mileage to be able to purchase or use these 
 
         items.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant fifty-one point five seven 
 
         two (51.572) weeks of healing period benefits at the rate of one 
 
         Hundred Five and 33/100 Dollars ($105.33) per week in the total 
 
         amount of Five Thousand Four Hundred Thirty-two and 08/100 
 
         Dollars ($5,432.08) for the periods May 10, 1985 to May 20, 1985 
 
         and again from July 31, 1985 to July 17, 1986.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That defendants pay to claimant seventy-five (75) weeks of 
 
         permanent partial disability benefits at the rate of One Hundred 
 
         Five and 33/100 Dollars ($105.33) per week in the total amount of 
 
         Seven Thousand Eight Hundred Ninety-nine and 75/100 Dollars 
 
         ($7,899.75) commencing on May 20, 1985, but interrupted by the 
 
         second period of healing from July 31, 1985 to July 17, 1986.
 
         
 
              That defendants are ordered to provide claimant with a TENS 
 
         unit, an exercise bicycle and the medical mileage to purchase or 
 
         for the daily use of these items if travel is required to use 
 
         them.
 
         
 
              That these amounts are to be paid in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That defendants are entitled to a credit for one hundred 
 
         thirty-three (133) weeks of workers' compensation benefits at the 
 
         rate of One Hundred Five and 33/100 Dollars ($105.33) per week in 
 
         the total amount of Fourteen thousand Eight and 89/100 Dollars 
 
         ($14,008.89).
 
         
 
              That the costs of this action, including the transcript, are 
 
         charged to defendants pursuant to Division of Industrial Services 
 
         Rule 343-4.33.
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 20th day of February, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            WALTER R. McMANUS, JR.
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Fredd J. Haas
 
         Attorney at Law
 
         5001 S.W. 9th St
 
         Des Moines, Iowa  50315
 
         
 
         Ms. Iris J. Post
 
         Mr. Ross H. Sidney
 
         Attorneys at Law
 
         2222 Grand Ave.
 
         PO Box 10434
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Des Moines, Iowa  50306
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                       
 
 
 
 
 
 
 
 
 
 
 
                                       51106; 51108.50; 51401; 51402.20; 
 
                                       51402.30; 51402.40; 51402.60; 
 
                                       51403.10; 51403.20; 51403.30;
 
                                       52206; 51802; 51803; 2501; 2504; 
 
                                       2505; 2700
 
                                       Filed February 20, 1990
 
                                       Walter R. McManus, Jr.
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         NORMA J. WRIGHT,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                   File No. 858615
 
         SUPER 8 LODGE OF DES MOINES,
 
                                                A R B I T R A T I 0 N
 
              Employer,
 
                                                   D E C I S I 0 N
 
         and
 
         
 
         UNITED STATES FIDELITY &
 
         GUARANTY CO.
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         51106; 51108-50; 51401; 51402.20; 51402.30; 51402.40; 51402.60; 
 
         51403.10; 51403.20; 51403.30; 52206
 
         
 
              It was determined that claimant did sustain an injury 
 
         arising out of and in the course of her employment when she stood 
 
         up and experienced pain in her back that caused her to lie down 
 
         on the floor after performing housekeeping (maid work) at a motel 
 
         after a job change from the laundry.  The only treating 
 
         orthopedic surgeon linked up causal connection and his testimony 
 
         was not controverted. Claimant's testimony, manager's testimony 
 
         and history given to all of the doctors support this conclusion.  
 
         There was no evidence to the contrary except chronic degenerative 
 
         bad back condition which the orthopedic surgeon took into 
 
         consideration when he determined it was asymptomatic until she 
 
         began the job change of cleaning rooms.
 
         
 
         51802
 
         
 
              Claimant awarded healing period for the times off work that 
 
         could be established by medical testimony, which was a little 
 
         over a year.
 
         
 
         51803
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Impairment was 10.5 percent (75% of 14%) apportioning out 
 
         preexisting degenerative condition.  Claimant was age 49, 
 
         eleventh grade education with no GED, spotty work history and 
 
         very nominal income over the years, no restrictions, no surgery, 
 
         no serious job search for full-time employment, and earning more 
 
         now than when injured.  Claimant awarded 15 percent industrial 
 
         disability.
 
         
 
         2501; 2504; 2505; 2700
 
         
 
              Orthopedic surgeon prescribed a TENS unit and an exercise 
 
         bicycle.  Defendants denied these prescriptions.  Defendants 
 
         ordered to either purchase or rent a TENS unit and an exercise 
 
         bicycle, as well as pay medical mileage, for these items which 
 
         were prescribed by the treating orthopedic surgeon.  It was 
 
         consistent with his course of treatment for this injury.  These 
 
         prescriptions were determined to be reasonable medical treatment. 
 
         Defendants introduced no evidence, medical or otherwise, to prove 
 
         this was not reasonable medical treatment.  Defendants cannot 
 
         deny liability and direct the course of treatment.  Even when 
 
         entitled to choose the care, they can choose the physician, but 
 
         cannot interfere with the physician's professional judgment on 
 
         what treatment modalities the physician determines to be 
 
         appropriate.