BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DANA PETERSON,
 
         
 
              Claimant,                               File No. 858921
 
         
 
         vs.                                       A R B I T R A T I O N
 
         
 
         GARRY OLSON CONSTRUCTION,                    D E C I S I O N
 
         
 
              Employer,
 
                                                         F I L E D
 
         and
 
                                                        MAR 29 1989
 
         BADGER STATE INSURANCE COMPANY,
 
                                                    INDUSTRIAL SERVICES
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by claimant Dana 
 
         Peterson against defendant employer Garry Olson Construction and 
 
         defendant insurance carrier Badger State Insurance Company to 
 
         recover benefits under the Iowa Workers' Compensation Act as the 
 
         result of an injury allegedly sustained on April 17, 1987.  This 
 
         matter came on for hearing before the undersigned in Storm Lake, 
 
         Iowa, on January 12, 1989.  The matter was considered fully 
 
         submitted at the close of hearing, although each party submitted 
 
         briefs thereafter.  The record in the proceeding consists of 
 
         claimant's exhibits 1 and 2, defendants' exhibits 1, 2, 3, 5, 6, 
 
         7, 9 and 10 and the testimony.of the following witnesses: 
 
         Claimant, Julie Hoft, Garry Olson, Joyce Olson and Melvin Redig.
 
         
 
                                   ISSUES
 
         
 
              Pursuant to the prehearing report submitted by the parties 
 
         and approved by the undersigned deputy, the parties have 
 
         stipulated:  That an employer-employee relationship existed 
 
         between claimant and the employer at the time of the alleged 
 
         injury; that if claimant's injury is found to be a cause of 
 
         permanent disability, it is an industrial disability to the body 
 
         as a whole; that the appropriate rate of weekly compensation is 
 
         $121.50; that affirmative defenses are waived; that fees charged 
 
         for medical services or supplies are fair and reasonable and 
 
         incurred for reasonable and necessary medical treatment.
 
         
 
              The issues remaining to be resolved include:  Whether 
 
         claimant sustained an injury on April 17, 1987, arising out of 
 
         and in the course of his employment; whether the alleged injury 
 
         caused temporary or permanent disability; the extent of 
 
         claimant's entitlement to compensation for temporary and 
 
                                                       
 
                                                                
 
         permanent partial disability; commencement date for permanent 
 
         partial disability, if awarded; whether medical expenses are 
 
         causally connected to the work injury; whether medical expenses 
 
         were authorized by defendant; taxation of costs.
 
         
 
                            REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified that he is 37 years old, and is single 
 
         with no dependents.  He resides with witness Julie Hoft.  
 
         Claimant holds a bachelor of arts degree in English earned in 
 
         1974 from the University of Northern Colorado.  However, claimant 
 
         has not actively made use of his degree in his professional 
 
         career.
 
         
 
              Claimant enrolled in college immediately after graduation 
 
         from high school.  After his college graduation, claimant worked 
 
         for approximately six months for a business known as Consumer 
 
         Supply Corporation.  His responsibilities included loading and 
 
         unloading trucks, including heavy lifting of up to 100 pounds.
 
         
 
              Claimant next worked with Buena Vista Work Activities Center 
 
         until 1976.  This facility served emotionally and mentally 
 
         handicapped adults.  Claimant had responsibilities for 
 
         supervising clients in the shop and had some physical labor 
 
         components to his position.
 
         
 
              From May, 1976 through August, 1978, claimant was employed 
 
         with Bertram Construction doing concrete work.  This was heavy 
 
         physical labor involving digging, pouring concrete and like 
 
         duties.  The work was seasonal in that claimant normally did not 
 
         work winters.
 
         
 
              Claimant next accepted a position with Hy-Grade Food 
 
         Products, working there until a plant closure in 1981.  He was a 
 
         weighmaster with responsibilities for weighing livestock.  This 
 
         position did not have a major physical component, but was 
 
         primarily clerical in nature.
 
         
 
              From approximately 1982 until 1985, claimant was again 
 
         employed with Bertram Construction.  Subsequently, claimant was 
 
         employed by his mother out of the home.  He put up a new 
 
         building, constructed a cement slab, painted his house twice and 
 
         did other such chores.  He took his position with defendant Garry 
 
         Olson Construction in June, 1986.  This was also essentially a 
 
         concrete work job, but also general construction was involved.  
 
         The work was heavy.  Claimant testified that he began his 
 
         employment at a pay rate of $7.50 per hour, but when placed on 
 
         the company payroll was reduced to $7.00 per hour.  He was paid 
 
         at irregular intervals based upon time records claimant kept in a 
 
         diary.  He worked steadily with defendant Garry Olson 
 
         Construction until subsequent to the injury.
 
         
 
              Claimant claimed that his general health is good and that he 
 
         suffered no major injuries prior to the injury under review.  He 
 
         did undergo surgery for a deviated septum in approximately 1980. 
 
                                                       
 
                                                                
 
         Claimant further testified that he pulled a muscle in his back 
 
         while working for Bertram Construction in 1983, but that he missed 
 
         no work and no medical attention was required.  Further, he stated 
 
         that he saw a physician concerning back pain in February, 1984.  
 
         He strained a muscle in his back while doing plumbing work at 
 
         home. Claimant was on layoff at the time, and was treated with 
 
         rest and ultrasound through a physical therapy program.  Two weeks 
 
         after this incident, claimant again "sprained" his back in a fall 
 
         down stairs.
 
         
 
              Claimant also explained on direct examination that he 
 
         injured his ribs while handing pegboard at his home acreage on 
 
         January 19, 1987.  Claimant saw a physician and was treated with 
 
         a pain killing medication.  He missed several weeks of work and 
 
         returned to work in mid-February, 1987.  Upon his return, 
 
         claimant performed his normal duties.
 
         
 
              There is substantial dispute between the parties as to when 
 
         the claimed work injury occurred.  Claimant testified that he was 
 
         injured on April 17, 1987, and that he specifically remembers 
 
         this date because it was Good Friday.  He testified that he 
 
         suffered the injury immediately before Mr. Olson took a two-week 
 
         vacation and immediately before Easter.  The diary entry claimant 
 
         prepared on that date reads as follows:
 
         
 
              Friday April 17 - 87
 
              9:30 - 12:00
 
              2 1/2 Hrs. Spread
 
              dirt & Picked up
 
              more sand &
 
              concrete
 
         
 
              However, claimant testified that he spent most of that long 
 
         and difficult day until approximately 6:15 or 6:30 p.m. raking 
 
         and shoveling dirt in a landscaping project around new 
 
         construction. Further, claimant stated that this was the end of a 
 
         very strenuous week of work.  Claimant stated that in the 
 
         afternoon, he developed a "hot spot" in his back while 
 
         backfilling around concrete, trying to finish before Mr. Olson's 
 
         vacation started.  Claimant described this as heavy work 
 
         performed in a bent-over position.  Claimant indicated that his 
 
         back continued getting worse and worse during the day, especially 
 
         after the afternoon break at approximately 2:30 or 3:00 p.m.
 
         
 
              Claimant did not mention his developing back problem to 
 
         Garry Olson, but went straight home after work at about 6:30 
 
         p.m., immediately advising Julie Hoft of his problems.  During 
 
         the following week, claimant was scheduled to work approximately 
 
         one and one-half days while Olson was vacationing.  Claimant did 
 
         so, however he considered the work to be "a struggle."  He spent 
 
         the rest of his time resting at home and using a heating pad.
 
         
 
              Claimant testified that he advised Garry Olson of his injury 
 
         on May 4, 1987, but further stated that he was ready to return to 
 
         work, and did work on a few more days until May 19, 1987.  At 
 
                                                       
 
                                                                
 
         that time, he felt unable to continue working because his hips 
 
         were "really twisted," that his left leg had become painful, and 
 
         that the leg had also begun to drag.
 
         
 
              The record contains obvious inconsistencies as to claimant's 
 
         dating of this incident.  As noted, his diary entry for April 17, 
 
         1987 indicated that he worked only two and one-half hours. 
 
         Further, the diary showed that on the two previous days, he was 
 
         unable to work because of wet weather.  Also, the diary entry for 
 
         Tuesday, April 14, shows that claimant worked only two hours 
 
         before being forced to stop due to wet weather.  April 13 shows 
 
         that claimant worked only four hours and was "soaked."
 
         
 
              However, claimant's diary entries for April 4 through April 
 
         10 are much more consistent with his testimony as to the chain of 
 
         events.  Those diary entries show that claimant worked nine hours 
 
         on Monday, eight and one-fourth hours on Tuesday, eight hours on 
 
         Wednesday and Thursday, and nine and one-fourth hours on Friday, 
 
         on the last date, from 8:00 a.m. through 6:15 p.m.  The diary 
 
         entry also showed that claimant was working on the same project 
 
         where he testified the injury occurred.  The final entry for 
 
         Friday, April 10, 1987:  "What a week!"
 
         
 
              Garry Olson testified that he left for his vacation on April 
 
         11, 1987, and last worked with claimant on April 10.  He visited 
 
 
 
                            
 
                                                                
 
         Phoenix and San Diego, making credit card purchases consistent 
 
         with credit card billings introduced as exhibits during the week 
 
         beginning April 11, 1987.  This testimony was also corroborated 
 
         by Joyce Olson, Garry Olson's spouse.
 
         
 
              Claimant testified that he visited Brian Walsh, D.C., on May 
 
         18, 1987.  This was his first attempt to seek medical attention. 
 
         He underwent approximately five treatments between then and May 
 
         28, 1987.  Thereafter, he saw Jonathan J. Hruska, M.D., who 
 
         ordered physical therapy.  Claimant next sought treatment from his 
 
         family physician, Mark Schultz, D.O.  Dr. Schultz was first seen 
 
         on June 4, 1987.  Dr. Schultz's notes show that claimant 
 
         complained of back and leg pains starting Good Friday while 
 
         working construction.  The history claimant gave at that time was 
 
         of moving and throwing dirt, shoveling, "and at the end of the day 
 
         he sawed cement."  This is inconsistent with diary entries for 
 
         April 17, but entirely consistent with diary entries of April 10, 
 
         1987.  Dr. Schultz had an impression of lumbosacral strain with 
 
         probable disc, and did advise hospitalization.  However, claimant 
 
         was treated at home due to the lack of medical insurance.  
 
         Claimant was seen again on June 18 and June 22, 1987.  At that 
 
         time, claimant was described as coming in with intense pain, and 
 
         he was then hospitalized.
 
         
 
              Claimant testified that he was discharged from his 
 
         hospitalization on June 26, 1987, to visit the University of Iowa 
 
         Hospitals and Clinics.  After more conservative attempts at 
 
         treatment, claimant underwent surgery on June 13, 1987.  The 
 
         operation was described by W. Miely, M.D., as L-5, L-6 discectomy 
 
         and removal of free foramina in the S-1 left foramina.  The 
 
         clinical diagnosis was herniated nucleus pulposis L-5, L-6 
 
         (S-1).
 
         
 
              Claimant testified that he required four round trips in all 
 
         from Storm Lake to Iowa City, Iowa.
 
         
 
              Claimant indicated that he has no currently scheduled 
 
         appointments with physicians, although he has continued to see 
 
         Dr. Schultz.  Additionally, he is still undergoing physical 
 
         therapy at Buena Vista Hospital at a frequency of once every 
 
         three weeks.  He testified that his left leg is frequently numb 
 
         and gives him pain, as does his left buttock.  He is not 
 
         currently employed and does no physical labor due to this 
 
         continued pain syndrome.
 
         
 
              On redirect examination, claimant testified that the last 
 
         time he had seen a physician for any back problem before the 
 
         claimed injury was in February, 1984.
 
         
 
              Garry Olson testified to the history of the employment 
 
         relationship, and to the dates of various jobs and his vacation 
 
         so as to point out inconsistencies with claimant's testimony.  He 
 
         testified that he first talked to claimant after his return on 
 
         May 1, 1987.  He further testified that claimant first mentioned 
 
         the injury on his last day of work before seeking medical 
 
                                                       
 
                                                                
 
         attention. On May 17, 1987, claimant commented to another 
 
         individual that "I've got an old injury that's acting up again."
 
         
 
              Mr. Olson conceded that claimant had demonstrated no 
 
         previous problems with physical work and was a good, hard-working 
 
         and reliable employee.  He agreed that claimant did do raking 
 
         duties such as claimant described in his testimony in 
 
         approximately the third week of March, and then again 
 
         approximately one and one-half weeks later.  Duties performed on 
 
         April 10, 1987 included pouring sidewalks.
 
         
 
              Melvin Redig testified that he is a contractor and gave 
 
         details as to certain duties he performed at a local business 
 
         known as Aalph's.
 
         
 
              Julie Hoft testified that she has resided with claimant for 
 
         the last ten years, and that she remembers claimant returning 
 
         home from work in pain on April 17, 1987.  She remembered that 
 
         this was the Easter weekend as she had friends coming to visit 
 
         for Easter.
 
         
 
              Notes of the University of Iowa Hospitals and Clinics dated 
 
         August 26, 1987, reviewing claimant six weeks status 
 
         post-discectomy show him doing fairly well.  Dr. Miely's chart 
 
         notes conclude:
 
         
 
              Patient is not going to return to construction type of work 
 
              and we feel this probably is beneficial for the patient.  He 
 
              plans to go into the antique business and have less of a 
 
              heavy labor type job.  In addition in the patient's history 
 
              it should be noted that the patient dates his injury back to 
 
              injury while on the job on May 17, 1987, when he was heavy 
 
              lifting.  Prior to that he had had no pain in his left leg 
 
              which is consistent with an acute onset of herniated disc or 
 
              possibly an acute exacerbation of a preexisting problem. 
 
              Either way the patient's history is consistent with an acute 
 
              problem.
 
         
 
              Further notes of January 13, 1988 showed claimant doing well 
 
         except for intermittent left leg pain and some mild continuous 
 
         back pain.  Dr. Miely found that claimant was still in his 
 
         healing period and should continue to improve; further, that the 
 
         healing period would be over approximately a year after surgery.
 
         
 
              Dr. Miely wrote to claimant on April 6, 1988:
 
         
 
              As to the specific questions regarding Mr. Perry's letter: 
 
              Was the injury sustained by yourself, in my opinion, caused 
 
              to injury that you sustained at work?  According to the 
 
              history, the disease of these findings would be consistent 
 
              with the injury of the herniated disc at L5/S1.  As far as 
 
              the recuperating and prognosis, I feel that you would have a 
 
              good prognosis to return to productive life.  I feel the 
 
              healing period has also ended, and that Dana will have a 
 
              permanent/partial disability of 12%.
 
                                                       
 
                                                                
 
         
 
              Ernest M. Found, Jr., M.D., also of the Spine Diagnostic and 
 
         Treatment Center of the University of Iowa Hospitals and Clinics 
 
         wrote to defendants' counsel on August 16, 1988 to advise that 
 
         Dr. Miely was no longer with that medical group.  Dr. Found noted 
 
         that in reviewing claimant's chart, claimant was last seen in 
 
         January, 1988.  He estimated that the maximum medical improvement 
 
         would be reached on or about August 15, 1988, and expressed the 
 
         opinion that claimant had suffered a permanent impairment of 12%.  
 
         The record also contains medical bills to be discussed hereafter 
 
         and a letter from claimant's former employee, C. Bertram.  Mr. 
 
         Bertram advised claimant's attorney that claimant had never 
 
         missed a day of work due to back problems and had never received 
 
         formal medical attention while working for that business.
 
         
 
                        APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on April 17, 1987 which arose 
 
         out of and in the course of his employment.  McDowell v. Town of 
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 
 
         246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 254 N.W. 35 (1934) at 731-32, discussed 
 
         the definition of personal injury in workers' compensation cases 
 
         as follows:
 
         
 
              While a personal injury does not include an occupational 
 
              disease under the workmen's Compensation Act, yet an injury 
 
              to the health may be a personal injury [Citations omitted.] 
 
              Likewise a personal injury includes a disease resulting from 
 
              an injury....The result of changes in the human body 
 
              incident to the general processes of nature do not amount to 
 
              a personal injury.  This must follow, even.though such 
 
                                                       
 
                                                                
 
                   natural change may come about because the life has been 
 
              devoted to labor and hard work    Such result of those 
 
              natural changes does not constitute a personal injury even 
 
              though the same brings about impairment of health or the 
 
              total or partial incapacity of the functions of the human 
 
              body.  A personal injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the body, the 
 
              impairment of health, or a disease, not excluded by the act, 
 
              which comes about, not through the natural building up and 
 
              tearing down of the human body, but because of a traumatic 
 
              or other hurt or damage to the health or body of an 
 
              employee.  [Citations omitted.]  The injury to the human 
 
              body here contemplated must be something, whether an 
 
              accident or not, that acts extraneously to the natural 
 
              processes of nature and thereby impairs the health, 
 
              overcomes, injures, interrupts, or destroys some function of 
 
              the body, or otherwise damages or injures a part or all of 
 
              the body.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of April 17, 1987 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
 
 
                        
 
                                                                
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756 (1956).  
 
         If the claimant had a preexisting condition or disability that is 
 
         aggravated, accelerated, worsened or lighted up so that it 
 
         results in disability, claimant is entitled to recover.  Nicks v 
 
         Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962).
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960).
 
         
 
              Our supreme court has stated many times that a claimant may 
 
         recover for a work connected aggravation of a preexisting 
 
         condition.  Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 
 
         N.W. 35 (1934).  See also Auxier v. Woodward State Hospital Sch., 
 
         266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 
 
         N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 
 
         704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United States Gypsum 
 
         Co., 252 Iowa 613, 106 N.W.2d 591 (1960).
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler v. United States Gypsum Co., 252 Iowa 
 
         613, 620, 106 N.W.2d 591 (1960), and cases cited.
 
         
 
              Claimant has steadfastly maintained that his injury occurred 
 
         on Good Friday, April 17, 1987.  His demeanor at hearing indicated 
 
         that claimant was a credible and truthful witness.  However, the 
 
         same is true of Garry Olson.  The undersigned accepts claimant's 
 
         testimony that he suffered an injury as he described while 
 
         performing heavy work with Garry Olson immediately before Olson 
 
         left for a two-week vacation around the Easter weekend, 1987.  
 
         Yet, Mr. Olson has established through his testimony and his 
 
         credit card billings that he was already away on vacation on April 
 
         17, 1987 and had last worked with claimant on April 10, 1987.   
 
         The diary claimant prepared for purposes of recording his hours is 
 
         entirely inconsistent with his testimony that he completed a 
 
         strenuous week of work on April 17, 1987.  However, it is entirely 
 
         consistent with a theory that claimant is mistaken as to the week 
 
                                                       
 
                                                                
 
         of his injury, and that he last worked with Mr. Olson and was 
 
         injured on April 10, 1987.  The undersigned is persuaded that this 
 
         is the case, claimant did suffer an injury to his back when 
 
         backfilling, shoveling, raking, and also sawing concrete on April 
 
         10, 1987, immediately before Garry Olson left for a two-week 
 
         vacation.  The Iowa courts have held that the selection of an 
 
         incorrect injury date in a petition is not significant when the 
 
         date is only a few days off. Yeager v. Firestone Tire & Rubber 
 
         Co., 253 Iowa 369, 112 N.W.2d 299 (1961).  Claimant was working on 
 
         the job and at his assigned duties at the time this acute episode 
 
         occurred.  It is held that this injury occurred arising out of and 
 
         in the course of that employment.
 
         
 
              Claimant testified that he had suffered no major injuries to 
 
         his back prior to the injury under review.  Although he suffered 
 
         sprains or strains in his back in 1983 and 1984, it is clear that 
 
         he recovered from those incidents to such a degree that he was 
 
         able to perform heavy concrete work for defendant employer from 
 
         June, 1986 through the date of injury (although there was an 
 
         intervening layoff for lack of work).  Following myelographic and 
 
         radiological examinations and surgery, claimant was diagnosed as 
 
         suffering a herniated nucleus pulposis at the L5-S1 level.  The 
 
         injury brought him acute pain.  It is ridiculous to suppose that 
 
         claimant could have performed heavy concrete work for many months 
 
         without complaint or losing work if the herniated disc had been 
 
         troubling him prior to this injury.  As claimant testified, he 
 
         was not working at any other job at or about this time.  Before 
 
         the injury, as Mr. Olson conceded, claimant had no problem with 
 
         physical work and was a good, hard-working and reliable employee. 
 
         After the injury, such has not been the case.  Claimant did not 
 
         seek medical attention after his 1983 pulled muscle episode, and 
 
         was diagnosed as lumbosacral strain by Dr. Schultz in the wake of 
 
         the two 1984 incidents.  This was the last time claimant found it 
 
         necessary to visit a physician for his back before the injury at 
 
         hand.  Although Dr. Miely's letter of April 6, 1988 is somewhat 
 
         garbled, the most reasonable conclusion to be drawn from the 
 
         paragraph concerning causation is that Dr. Miely did believe the 
 
         disease process was consistent with the injury at work.  Notes of 
 
         August 26, 1987 following surgery are unclear as to the author, 
 
         although Dr. Weinstein and Dr. Trombino appear in the left-hand 
 
         column.  Yet, those notes were charted for the University of Iowa 
 
         Hospitals and Clinics and clearly refer to this incident.  The 
 
         chart notes reflect that claimant had not pain prior to his 
 
         alleged injury in his left leg, which is consistent with an acute 
 
         onset of herniated disc or an acute exacerbation of a preexisting 
 
         problem.  It is held that all this evidence establishes to a 
 
         reasonable probability that there is a causal connection between 
 
         the work injury and claimant's alleged disabilities.  There is no 
 
         indication that claimant suffered any disability to his back 
 
         prior to the work incident.
 
         
 
              Accordingly, the issues of healing period and permanent 
 
         partial disability rating must be examined.  Pursuant to Iowa 
 
         Code section 85.34(1), healing period begins on the date of 
 
         injury and continues until the employee has returned to work or 
 
                                                       
 
                                                                
 
         it is medically indicated that significant improvement from the 
 
         injury is not anticipated or until the employee is medically 
 
         capable of returning to substantially similar employment.  The 
 
         injury date in this case is held to be April 10, 1987.  However, 
 
         claimant was able to work a limited number of hours between April 
 
         10 and when he first sought medical attention on May 18, 1987.  
 
         Defendants shall be given credit for wage payments during that 
 
         interim. Pursuant to Division of Industrial Services Rule 
 
         343-8.4, any excess payment made by an employer in lieu of 
 
         compensation in excess of the weekly compensation rate shall not 
 
         be construed as advance payment.  This implies that salary paid 
 
         in lieu of compensation which does not exceed the weekly 
 
         compensation rate should be credited on a dollar-for-dollar 
 
         basis.
 
         
 
              Dr. Miely last saw claimant on January 13, 1988, and 
 
         indicated that healing period would last for approximately a year 
 
         after surgery.  Apparently without seeing claimant again, Dr. 
 
         Miely further opined on April 6, 1988 that the healing period had 
 
         concluded.  His associate, Dr. Found, opined on August 16, 1988 
 
         that "maximum medical improvement" was achieved on August 15.  
 
         The record does not reflect whether Dr. Miely was aware of 
 
         claimant's physical therapy progress between January 13 and April 
 
         6, 1988. Apparently, something must have come to his attention to 
 
         cause him to express the opinion that healing period had ended as 
 
         of that date.  As Dr. Miely was the surgeon and treating 
 
         physician, that opinion of April 6, 1988 will be accepted as 
 
         ending the healing period.
 
         
 
              The next issue to be reviewed is that of permanent partial 
 
         disability.  Drs. Miely and Found are the only medical 
 
         professionals to express an opinion as to this issue.  Dr. Miely 
 
         is of the view that claimant has a permanent "disability" of 12%, 
 
         while Dr. Found finds claimant to have a permanent "impairment" 
 
         rating of 12%.  While it is of course proper for a physician to 
 
         express an opinion as to impairment, the same is not the case 
 
         with regard to "disability."  That is a legal concept, the 
 
         measuring of which has been assigned by the General Assembly to 
 
         the industrial commissioner under Chapter 85 of The Code.  Of 
 
         course, many physicians appear to use the terms interchangeably 
 
         and it may well be that this is Dr. Miely's practice as well.  
 
         Still, Dr. Miely's opinion must be given diminished weight 
 
         because it does go to the issue of "disability" rather than 
 
         "impairment."  Dr. Found's opinion that claimant has a permanent 
 
         impairment rating of 12% is accepted as established.
 
         
 
              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, 125 N.W.2d 251 (1963). 
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
                                                       
 
                                                                
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted. Loss of earnings caused by a job transfer 
 
         for reasons related to the injury is also relevant.  These are 
 
         matters which the finder of fact considers collectively in 
 
         arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc. 
 
         Neither does a rating of functional impairment directly correlate 
 
 
 
                        
 
                                                                
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 
              Although claimant has a 12% impairment to the body as a 
 
         whole, the record does not show that any physician has at any 
 
         time imposed permanent restrictions.  However, as has been seen, 
 
         charted notes from one of claimant's treating physicians of 
 
         August 26, 1987, indicate that it is probably beneficial for 
 
         claimant to not return to construction work and indicates 
 
         approval of claimant's plans to pursue a less heavy type of 
 
         employment.  Since much of claimant's employment has been heavy 
 
         work, particularly in the concrete construction field, it is 
 
         clear that some of his career options have been foreclosed.  
 
         Claimant does have a bachelor's degree in English earned in 1974, 
 
         but has not particularly made use of his educational background 
 
         in the years since graduation.  He held a clerical position as a 
 
         weighmaster for about three years and was a counselor for 
 
         handicapped adults for perhaps two years, but has otherwise 
 
         engaged in heavy manual labor throughout his working career.  
 
         Therefore, it is clear that claimant has suffered a diminution of 
 
         his earning capacity. Factors operating to mitigate claimant's 
 
         industrial disability are his age (he is still sufficiently young 
 
         for retraining), his bachelor's degree and an apparently low 
 
         motivation for a return to gainful employment.  Claimant had 
 
         selected a field of endeavor prior to his injury that was 
 
         seasonal and allowed a large time off work each year, and has not 
 
         undergone rehabilitation or sought to return to work since this 
 
         injury.
 
         
 
              Considering the evidence in general and these factors in 
 
         particular, the undersigned concludes and holds that claimant 
 
         has, by reason of his work-related injury, suffered an industrial 
 
         disability of 15%.
 
         
 
              The next issue under review is that of medical expenses.  
 
         The parties dispute whether claimant's medical expenses were 
 
         authorized by employer, but that is irrelevant to the present 
 
         case.  While the employer's obligation to furnish medical 
 
         treatment carries with it the privilege of selecting the care 
 
         provider, such is not the case where defendants deny the 
 
         compensability of an injury under the Act, and such defendants 
 
         cannot assert that medical treatment was unauthorized.  Holbert 
 
         v. Townsend Engineering Co., 32nd Biennial Report of the 
 
         Industrial Commissioner, 78 (1975).  It has been stipulated that 
 
         the fees charged for medical services and supplies are fair and 
 
         reasonable and that those expenses were incurred for reasonable 
 
         and necessary medical treatment.  The record makes clear that 
 
         those expenses were incurred for the purpose of treating this 
 
                                                       
 
                                                                
 
         injury, which has already been held to be causally related to the 
 
         work.  Therefore, medical expenses as set forth on page 1 of 
 
         claimant's medical exhibits shall be allowed, except as 
 
         hereinafter set forth. Claimant testified to only four round 
 
         trips from Storm Lake to Iowa City, rather than the five round 
 
         trips set forth in the exhibit.  At 506 miles per round trip and 
 
         at $.21 per mile, claimant is entitled to compensation in the sum 
 
         of $425.04 for mileage.  "Guide to Iowa Workers' Compensation 
 
         Claim Handling" (effective July 1, 1986), page VII.  Evidence as 
 
         to meals and lodging expenses was not forthcoming, and those 
 
         listings are apparently approximations.  Claimant has failed to 
 
         meet his burden of proof as to expenses for meals and lodging.  
 
         The balance of the medical expenses set forth on page 1 of 
 
         claimant's medical exhibits shall be allowed, although payable to 
 
         the service providers to the extent not already paid by claimant.  
 
         Krohn v. State, 420 N.W.2d 463 (Iowa 1988).  Apparently, only $60 
 
         of Dr. Walsh's bill has been paid by claimant to date, so that 
 
         portion of the total shall be awarded directly to claimant.
 
         
 
                               FINDINGS OF FACT
 
         
 
              THEREFORE, based on the evidence presented, the following 
 
         ultimate facts are found:
 
         
 
              1.  Claimant was employed by Garry Olson Construction and 
 
         was working on the job assigned to him when he suffered the 
 
         severe onset of pain to his back on April 10, 1987.
 
         
 
              2.  Claimant eventually underwent surgery (discectomy and 
 
         removal of free foramina) and was diagnosed as suffering from a 
 
         herniated nucleus pulposis L5,L6 (S1).
 
         
 
              3.  Claimant's injury was caused or aggravated by his 
 
         employment.
 
         
 
              4.  Claimant reached maximum medical improvement on April 6, 
 
         1988.
 
         
 
              5.  Claimant incurred certain medical bills for reasonable 
 
         and necessary treatment that was reasonably necessary to treat 
 
         his injury:
 
         
 
              Dr. Walsh, Chiropractor                         $    75.00
 
              Buena Vista Hospital                              3,537.89
 
              Family Health Center                                527.00
 
              Drugs (Drug Town; Bedel's)                          111.14
 
              Dr. Rice, Radiology                                  17.00
 
              University of Iowa Hospitals & Clinics            7,280.28
 
              Sports Rehab, Physical Therapy                      328.00
 
              Total                                           $11,876.29
 
         
 
              6.  Of the foregoing medical expenses, only $60.00 to Dr. 
 
         Walsh was paid directly by claimant.
 
         
 
              7.  Claimant has sustained mileage expenses associated with 
 
                                                       
 
                                                                
 
         his medical treatment in the sum of $425.04.
 
         
 
              8.  Claimant's proper rate of weekly compensation has been 
 
         stipulated.to be $121.50.
 
         
 
              9.  Claimant's injury has been stipulated to be an 
 
         industrial disability to the body as a whole.
 
         
 
              10.  Claimant's work injury has caused him permanent 
 
         disability and a diminution of his earning capacity.
 
         
 
              11.  Claimant was a credible witness.
 
         
 
              12.  Although claimant has not been given specific physical 
 
         restrictions by his physicians, it has been found beneficial that 
 
         he discontinue heavy concrete construction work and he has been 
 
         assigned a permanent impairment rating of 12% to the body as a 
 
         whole.
 
         
 
                               CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant suffered an injury arising out of and in the 
 
         course of his employment on,April 10, 1987.
 
         
 
              2.  Claimant's injury was an injury to the body as a whole.
 
         
 
              3.  Claimant's injury directly caused a healing period from 
 
         April 11, 1987 through April 6, 1988 (51 weeks 4 days).
 
         
 
              4.  Defendants are entitled to credit on a dollar-for-dollar 
 
         basis for wages paid to claimant subsequent to his work injury of 
 
         April 10, 1987.
 
         
 
              5.  Claimant has established a permanent partial disability 
 
         of 15% of the body as a whole, the commencement date being April 
 
         7, 1988.
 
         
 
              6.  Claimant is entitled to medical expenses as set forth 
 
         above for medical bills of Dr. Walsh, Buena Vista Hospital, 
 
         Family Health Center, drugs (Drug Town and Bedel's), Dr. Rice, 
 
         University of Iowa Hospitals & Clinics and Sports Rehab-Physical 
 
         Therapy. Sixty dollars of this amount has been paid by claimant, 
 
         and shall be reimbursed directly to him.
 
         
 
              7.  Claimant has incurred transportation expenses in 
 
         connection with his medical treatment of $425.04.
 
         
 
                                    ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants are to pay unto claimant fifty one point five 
 
                                                       
 
                                                                
 
         seven one (51.571) weeks of healing period benefits at the 
 
         stipulated rate of one hundred twenty-one and 50/100 dollars 
 
         ($121.50) per week totalling six thousand two hundred sixty-five 
 
         and 88/100 dollars ($6,265.88).
 
         
 
              Defendants are to pay unto claimant seventy-five (75) weeks 
 
         of permanent partial disability benefits at the stipulated rate 
 
         of one hundred twenty-one and 50/100 dollars ($121.50) per week 
 
         payable commencing April 7, 1988 totalling nine thousand one 
 
         hundred twelve and 50/100 dollars ($9,112.50).
 
         
 
              Defendants shall pay claimant's medical expenses to Dr. 
 
         Walsh [sixty dollars ($60.00) of which is payable directly to 
 
         claimant], Buena Vista Hospital, Family Health Center, Drug Town, 
 
         Bedel's, Dr. Rice, University of Iowa Hospitals & Clinics and 
 
         Sports Rehab-Physical Therapy, totalling eleven thousand eight 
 
         hundred seventy-six and 29/100 dollars ($11,876.29).
 
         
 
              Defendants shall pay to claimant medical transportation 
 
         expenses of four hundred twenty-five and 04/100 dollars 
 
         ($425.04).
 
         
 
              Defendants shall be entitled to dollar-for-dollar credit for 
 
         wages paid to claimant subsequent to April 10, 1987.
 
         
 
              Those benefits which have accrued as of the date of this 
 
         decision shall be paid in a lump sum together with statutory 
 
         interest pursuant to Iowa Code section 85.30.
 
         
 
              Costs of this action are assessed to defendants pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendants shall file Claim Activity Reports as requested by 
 
 
 
                                    
 
                                                                
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
         
 
              Signed and filed this 29th day of March, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            DAVID RASEY
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Hugh J. Perry
 
         Attorney at Law
 
         116 East 5th Street
 
         Box 1125
 
         Storm Lake, Iowa  50588
 
         
 
         Mr. Steve Hamilton
 
         Attorney at Law
 
         606 Ontario Street
 
         P.O. Box 188
 
         Storm Lake, Iowa  50588
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1704, 1803
 
                                            Filed March 29, 1989
 
                                            DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DANA PETERSON,
 
         
 
              Claimant,
 
         
 
         vs.                                         File No. 858921
 
         
 
         GARRY OLSON CONSTRUCTION,                A R B I T R A T I O N
 
         
 
              Employer,                              D E C I S I O N
 
         
 
         and
 
         
 
         BADGER STATE INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1704
 
         
 
              Defendants were given credit for claimant's earnings during 
 
         healing period where he did perform some limited work.
 
         
 
         1803
 
         
 
              Back-injury claimant who worked in concrete construction had 
 
         a 12% body as a whole impairment, but who had a college degree 
 
         and was not well motivated was awarded 15% permanent partial 
 
         disability.
 
         
 
 
 
 
 
         
 
         
 
 
 
 
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                          BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
          
 
          
 
          VIOLA SUMMERS,
 
          
 
               Claimant,
 
          
 
          VS.                                                File No. 859059
 
          
 
          TOWERS MOTEL,                                   A R B I.T R A T I 0 N
 
          
 
               Employer,                                     D E C I S I 0 N
 
          
 
          and
 
          
 
          FARMERS INSURANCE GROUP,
 
          
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
                                        
 
              This is a proceeding in arbitration brought by Viola 
 
         Summers, claimant, against Towers Motel, employer, and Farmers 
 
         Insurance Group, insurance carrier, defendants.  The case was 
 
         heard by the undersigned on June 29, 1989, in Fort Dodge, Iowa.
 
         
 
              The record consists of the testimony of claimant.  The 
 
         record also consists of the testimonies of Mae Blaha, Shelly Gill 
 
         and Bob Sanders.  The record also consists of exhibits 1-10, 12 
 
         and 13.  Exhibit 11 was taken under advisement at the time of 
 
         hearing.
 
         
 
              Defendants objected to the admission of exhibit 11 on the 
 
         bases that exhibit 11 was not served upon defendants' attorney in 
 
         compliance with Rule 125(c) of the Iowa Rules of Civil Procedure, 
 
         and that exhibit 11 was not served in compliance with paragraph 6 
 
         of the prehearing assignment order.  Defendants also cited Rules 
 
         343-4.17 and 343-4.18 of the Division of Industrial Services 
 
         Rules.
 
         
 
              It is the determination of the undersigned that exhibit 11 
 
         is admissible as evidence in this case.  Rule 125(c) provides 
 
         that:
 
         
 
              If a party expects to call an expert witness when the 
 
              identity or the subject of such expert witness' testimony 
 
              has not been previously disclosed in response to an 
 
              appropriate inquiry directly addressed to these
 
         
 
         
 
         SUMMERS V. TOWERS MOTEL 
 
         Page 2
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
              matters, such response must be supplemented to include the 
 
              information described in subdivisions "a" (1)(A)-(C) of this 
 
              rule, as soon as practicable, but in no event less than 
 
              thirty days prior to the beginning of trial except on leave 
 
              of court.  If the identity of an expert witness and the 
 
              information described in subdivisions a"(1)(A)-(C) are not 
 
              disclosed in compliance with this rule, the court in its 
 
              discretion may exclude or limit the testimony of such 
 
              expert, or make such orders in regard to the nondisclosure 
 
              as are just.
 
              
 
              In the case at hand, claimant listed Alan Lang, M.D., as an 
 
         expert witness as part of claimant's answers to interrogatories.  
 
         The answers to interrogatories were served on defendants on March 
 
         31, 1988.  Defendants had ample opportunity to depose Dr. Lang, 
 
         if defendants desired to do so.  The report of Dr. Lang, dated 
 
         March 11, 1989, was served on defendants more than 15 days prior 
 
         to the hearing.  This was required by the prehearing assignment 
 
         order.  Therefore, exhibit 11 is admissible.
 
         
 
                                      ISSUES
 
                                        
 
              As a result of the prehearing report and order submitted on 
 
         June 29, 1989, the issues presented by the parties are:
 
         
 
              1. Whether claimant is entitled to temporary 
 
         disability/healing period benefits or permanent partial or total 
 
         disability benefits; and,
 
         
 
              2.Whether claimant is entitled to medical benefits under 
 
         section 85.27 of the Iowa Code.
 
         
 
                                   STIPULATIONS
 
                                        
 
              1. The existence of an employer-employee relationship 
 
         between claimant and employer at the time of the alleged injury;
 
         
 
              2. That claimant sustained an injury on June 7, 1987, which 
 
         arose out of and in the course of employment with employer is 
 
         stipulated;
 
         
 
              3. That the work injury is a cause of permanent disability 
 
         is stipulated;
 
         
 
              4. That the extent of entitlement to weekly compensation for 
 
         temporary total disability or healing period, if defendants are 
 
         liable for the injury, is stipulated to be from June 7, 1987 to 
 
         June 15, 1987 (4 work days) and from September 19, 1987 to 
 
         September 13, 1988;
 
         
 
         
 
         SUMMERS V. TOWERS MOTEL
 
         Page  3
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
              5. The type of permanent disability, if the injury is found 
 
         to be a cause of permanent disability, is stipulated to be an 
 
         industrial disability to the body as a whole.  The commencement 
 
         date for permanent partial disability, in the event such benefits 
 
         are awarded, is stipulated to be the 19th day of September, 1988;
 
         
 
              6. In the event of an award of weekly benefits, the rate of 
 
         weekly compensation is stipulated to be $108.95 per week;
 
         
 
              7. With reference to disputed medical expenses, the parties 
 
         stipulated that:
 
         
 
              (a)  the provider of the services would testify that
 
              the fees were reasonable;
 
              
 
              (b)  the causal connection of the expenses to treatment for 
 
              a medical condition upon which claimant is now basing her 
 
              claim is admitted but that the causal connection of this 
 
              condition to a work injury remains an issue to be decided in 
 
              these proceedings; and,
 
              
 
              (c)  all medical treatment as of July 11, 1988, is 
 
              unauthorized as to Dr. Passick, D.C.
 
              
 
              8. Defendants paid claimant 52 weeks 4 days of compensation 
 
         at the rate of $102.46 per week prior to hearing.
 
         
 
                                 FACTS PRESENTED
 
                                        
 
              Claimant is 34 years old.  She is married with two children 
 
         at home.  She has a G.E.D.
 
         
 
              Claimant has worked at defendant-motel since 1981 when she 
 
         started working as a maid.  Occasionally claimant also repapered 
 
         and repainted the motel.  Primarily claimant's duties included 
 
         cleaning the rooms, performing light maintenance, filling 
 
         supplies, and snow shoveling during winter months.  Claimant 
 
         testified that her housekeeping duties necessitated that she push 
 
         a metal cart from room to room.  The cart weighed between 60 to 
 
         75 pounds when it was fully loaded with towels and other 
 
         supplies.
 
         
 
              Claimant testified that in September of 1986, she fell while 
 
         working.  Claimant reported she injured her back but that her 
 
         chiropractor, J. A. Passick, released claimant from his care on 
 
         October 30, 1986, and that claimant had no additional problems 
 
         until her work injury on June 7, 1987.
 
         
 
         
 
         SUMMERS V. TOWERS MOTEL 
 
         Page 4
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant also testified that on June 7, 1987, she was making 
 
         a bed in motel room number 243.  The bed rail was sticking out, 
 
         claimant stated she hit the rail and fell onto the floor.  After 
 
         that incident claimant stated she reported the incident to the 
 
         motel desk clerk and left the premises.  Claimant then saw her 
 
         personal chiropractor, Dr. Passick.
 
         
 
              The record establishes that claimant was unable to work from 
 
         June 7, 1987 to June 15, 1987 and from September 19, 1987 to 
 
         September 13, 1988.
 
         
 
              During direct examination claimant reported, she returned to 
 
         work after a job analysis had been performed.  Work limitations 
 
         had been assessed.  Claimant stated she earned $5.00 per hour 
 
         both before and after her return to work.  She also indicated 
 
         that Bob Sanders, owner of the motel, told her, "Do as much as 
 
         you can do, but don't do more."
 
         
 
              The record indicates claimant saw Dr. Passick.  Dr. Passick 
 
         then referred claimant to Samir R. Wahby, M.D., on September 18, 
 
         1987.  He wrote in his report of September 22, 1987:
 
         
 
              Examination revealed mild pain and tenderness over the lower 
 
              lumbar region and over the left sacroiliac joint.  The 
 
              patient had slight pain and discomfort over the sciatic 
 
              notch especially on the left.  Straight leg raise was weakly 
 
              positive at approximately 60 degrees and deep tendon 
 
              reflexes were intact and equal bilateral.
 
              
 
              X-rays of her lumbosacral region were reviewed and the xrays 
 
              [sic] revealed slight narrowing of the Sl disc space.  
 
              Patient was told that she has a sprained lumbosacral region 
 
              and I told her that I do not think at the present time that 
 
              she has any nerve root impingement or irritation however she 
 
              was also told that if she gets worse in the future she will 
 
              probably have to have CAT scan of her lumbar region.  
 
              Patient was advised to come back for follow up in four 
 
              weeks.  Meanwhile she will be coming back to your office for 
 
              treatment and she was advised not to do any heavy work or 
 
              any work that required repeated bending.
 
         
 
              Dr. Wahby ordered a CT scan.  The scan, according to K. F. 
 
         Lacey, M.D., revealed:
 
         
 
              IMPRESSION:
 
              1.  A minimal bulging of the annulus at the L5-Sl
 
                  level, with loss of fat between this and the
 
                  right Sl nerve rootlet.
 
         
 
         
 
         
 
         SUMMERS V. TOWERS MOTEL
 
         Page  5
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              2. An interosseous lipoma of the left L4 pedicle.
 
         
 
              The record establishes that claimant was also seen by 
 
         Marshall Flapan, M.D., an orthopedic surgeon.  He diagnosed 
 
         claimant as having a "possible herniated intervertebral disc in 
 
         the lumbar spine."  Dr. Flapan authorized physical therapy for 
 
         claimant.
 
         
 
              The record further shows claimant was examined on one 
 
         occasion by Daniel A. Dethmers, M.D. He found:
 
         
 
              Physical Examination: Shows she has increased muscle tone in 
 
              the lumbar paraspinal muscles.  Forward flexion is limited 
 
              to 14 inches fingertips to the floor. Lateral bending is 15 
 
              deegrees to either side.  Extension is 15 degrees.  She has 
 
              positive straight leg raising. She has normal reflexes, some 
 
              complaints of decreased sensation over the posterior calf.  
 
              I'm not able to detect any focal weakness.
 
              
 
              Impression: This patient appears to have probably mechanical 
 
              back pain.  We will start her on an exercise program at this 
 
              time.  She will return to see me in three weeks.
 
         
 
              Claimant was also treated by Allen G. Lang, M.D. In his 
 
         report of July 16, 1988, Dr. Lang opined:
 
         
 
              ... Her MRI study shows a very poor signal density from the 
 
              nucleus pulposus of the L5-Sl intervertebral disc, 
 
              indicating degeneration of that disc.  In light of the 
 
              history which she provides, it would appear that her falls 
 
              at work would be then an aggravation of a pre-existing 
 
              condition, since a normal disc would, in my opinion, 
 
              tolerate the stresses involved in the described falls 
 
              without development of any abnormalities.  None of her 
 
              studies indicate any ruptured or herniated disc.
 
              
 
              I believe this condition is best treated in conservative 
 
              fashion.  I suggested that she consider attending a "back 
 
              school". [sic] There is one at Mary Greeley Medical Center 
 
              which she could be referred to.
 
         
 
              In December of 1988, Dr. Lang rated claimant for functional 
 
         impairment.  The physician opined:
 
         
 
              ... She does have evidence of degenerative disc
 
              disease in the back at L5-Sl, however.  I would
 
              
 
              
 
         SUMMERS V. TOWERS MOTEL
 
         Page 6
 
         
 
         
 
         consider a 2 percent permanent physical impairment of the whole 
 
         body to be appropriate.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              In his letter of March 11, 1989, Dr. Lang wrote to 
 
         claimant's attorney:
 
         
 
              In reference to your letter of February 22, 1989, I did 
 
              initially see Mrs. Summers on June 27, 1988, and she 
 
              reported that she had been receiving chiropractic treatments 
 
              prior to that, so I had not made any recommendations on 
 
              that.  When I last saw her on October 4, 1988, I did 
 
              recommend that she continue once weekly treatments by her 
 
              chiropractor since that was helping her symptomatology and 
 
              helping maintain her functional status.  I hope this 
 
              provides the information you need.
 
         
 
              Finally, the record shows that Kent Jayne, rehabilitation 
 
         specialist, was retained by defendant insurance carrier to assist 
 
         claimant in vocational rehabilitation.  A functional capacity 
 
         evaluation was conducted.  A job analysis was performed of 
 
         claimant's position as a maid.  Defendant employer, the 
 
         rehabilitation specialist, and claimant's physician agreed 
 
         claimant could return to work and she would be:
 
         
 
              ...responsible for light cleaning duties, supervision and 
 
              training of up to four other housekeepers.  Not required to 
 
              make beds or do vacuuming.  May occasionally perform light 
 
              laundry and mending of draperies and bedding.  No overhead 
 
              lifting.
 
              
 
                                  APPLICABLE LAW
 
                                        
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on June 7, 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).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756,     
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled
 
         
 
         
 
         
 
         SUMMERS V. TOWERS MOTEL
 
         Page 7
 
         
 
         
 
         to recover.  Nicks v Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812,                       (1962).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591,        
 
         (1960).
 
         
 
              The Iowa Supreme Court cites, apparently with approval, the 
 
         C.J.S. statement that the aggravation should be material if it is 
 
         to be compensable.  Yeager v. Firestone Tire & Rubber 
 
         Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's 
 
         Compensation section 555(17)a.
 
         
 
              Our supreme court has stated many times that a claimant may 
 
         recover for a work connected aggravation of a preexisting 
 
         condition.  Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 
 
         N.W. 35 (1934).  See also Auxier v. Woodward State Hospital 
 
         Sch., 266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles 
 
         Co., 158 N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 
 
         N.W.2d 704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 
 
         1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299 
 
         (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960).
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler, 252 Iowa 613, 620, 106 N.W.2d 591 
 
         (1960), and cases cited.
 
         
 
              An employee is not entitled to recover for the results of a 
 
         preexisting injury or disease but can recover for an aggravation 
 
         thereof which resulted in the disability found to exist.  
 
         Olson, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 
 
         369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 
 
         (1960).  See also Barz, 257 Iowa 508, 133 N.W.2d 704 (1965); 
 
         Almquist, 218 Iowa 724, 254 N.W. 35 (1934).
 
         
 
              If a claimant contends he has industrial disability he has 
 
         the burden of proving his injury results in an ailment extending 
 
         beyond the scheduled loss.  Kellogg v. Shute and Lewis Coal Co., 
 
         256 Iowa 1257, 130 N.W.2d 667 (1964).
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted. Olson, 
 
         255 Iowa 1112, 125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 
 
         253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
         
 
         
 
         SUMMERS V. TOWERS MOTEL
 
         Page 8
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomi cal or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy.or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 
                                     ANALYSIS
 
                                        
 
              Claimant argues she has sustained an industrial disability 
 
         as a result of her work injury on June 7, 1987.  She argues there 
 
         has been a loss of earnings and a loss of earning capacity.
 
         
 
         SUMMERS V. TOWERS MOTEL
 
         Page 9
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              It is undisputed that claimant has been given a functional 
 
         impairment rating of two percent to the body as a whole.  
 
         Claimant has been restricted from lifting greater than 20 pounds 
 
         maximum and 10 pounds repetitively.  Per the job analysis which 
 
         was drafted, claimant is restricted from making beds and 
 
         vacuuming carpets.  Claimant, in essence, is given a "light duty 
 
         position", as head housekeeper.  She has supervisory duties, as 
 
         well as light housekeeping responsibilities.  Claimant, by her 
 
         own admission, has been informed by her supervisor "to do as much 
 
         as she can, but not to do more than that."
 
         
 
              Defendant employer is to be commended for designing a "light 
 
         duty position" for claimant.  Mr. Sanders, the motel owner, 
 
         genuinely desires to maintain the agreement he has with claimant 
 
         regarding her restricted duties.  It is true Mr. Sanders must 
 
         often have an additional maid assist claimant with the cleaning 
 
         duties.  This may result in a loss of earnings for claimant 
 
         during off seasons as the owner is reluctant to employ three 
 
         maids on a given day when two maids are sufficient.  Claimant 
 
         will then be considered the extra person and she will probably be 
 
         told to stay at home on that day.  Some earnings will be lost.
 
         
 
              Claimant's earning capacity has been reduced as a result of 
 
         her work injury.  Claimant has always worked as a waitress or 
 
         else as a maid.  She has no office skills.  Potential employers 
 
         will be reluctant to hire an individual who has had a previous 
 
         back condition and who has the lifting restrictions imposed.
 
         
 
              Therefore, in light of the foregoing, it is the decision of 
 
         the undersigned that claimant, as a result of this work related 
 
         injury, has an industrial disability of eight percent.
 
         
 
              The next issue to address is whether claimant is entitled to 
 
         medical benefits under section 85.27 of the Iowa Code.  Claimant 
 
         has requested payment for expenses incurred for chiropractic 
 
         treatment from Dr. Passick.  It has been stipulated by the 
 
         parties that as of July ll, 1988, all treatment from Dr. Passick 
 
         was unauthorized.  Claimant testified she has paid $641.00 in 
 
         charges to Dr. Passick since that date.  Exhibit 2 shows payment 
 
         to Dr. Passick from March 29, 1988 to December 17, 1988 in the 
 
         amount of $409.00. There is a discrepancy as to the amount of the 
 
         charges.  Claimant maintains the charges from Dr. Passick are 
 
         reasonable and necessary and that her condition improved as a 
 
         result of her chiropractic treatments.  Even her physician, Dr. 
 
         Lang, recognized the need for her chiropractic treatments.
 
         
 
         
 
         
 
         SUMMERS V. TOWERS MOTEL
 
         Page 10
 
         
 
         
 
              This division has long recognized the premise that 
 
         unauthorized treatment which improves an employee's condition and 
 
         which ultimately may mitigate the employer's liability may 
 
         subsequently be found reasonable and necessary for treatment of 
 
         an injury. Butcher v. Valley Sheet Metal, IV Iowa Industrial 
 
         Commissioner Report 49 (Appeal Decision 1983); Rittgers v. 
 
         United Parcel Service, III Iowa Industrial Commissioner Report 
 
         210 (Appeal Decision 1982); Hutchinson v. American Freight 
 
         Systems, Inc., I-1 Iowa Industrial Commissioner Decision 94 
 
         (Appeal Decision 1984).  The evidence, in the instant proceeding, 
 
         is uncontroverted that claimant's condition improved subsequent 
 
         to the treatment which she received from Dr. Passick.  Therefore, 
 
         defendants are liable to claimant for $409.00 in reimburseable 
 
         medical expenses.  See: Caylor v. Employers Mut. Cas. Co., 337 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         N.W.2d 890 (Iowa App. 1983).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                     FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
                                        
 
              WHEREFORE, based upon the evidence presented and the 
 
         principles of law previously stated, the following findings of 
 
         fact and conclusions of law are made:
 
         
 
              FINDING 1. Claimant sustained a back injury arising out of 
 
         and in the course of her employment on June 7, 1987.
 
         
 
              FINDING 2. As a result of the work injury on June 7, 1987, 
 
         claimant has an attributable functional impairment of two percent 
 
         of the body as a whole.
 
         
 
              FINDING 3. Claimant was able to continue her employment with 
 
         defendant since she was given a "light duty position."
 
         
 
              CONCLUSION A. Claimant has met her burden of proving she has 
 
         an eight percent permanent partial disability attributable to her 
 
         work injury on June 7, 1987.
 
         
 
              FINDING 4. Claimant has incurred unauthorized medical 
 
         expenses which have improved her condition.
 
         
 
              CONCLUSION B. Medical expenses in the sum of $409.00 are due 
 
         to claimant under section 85.27.
 
         
 
                                      ORDER
 
                                        
 
              THEREFORE, defendants are to pay unto claimant forty (40) 
 
         weeks of permanent partial disability benefits at the stipulated 
 
         rate of one hundred eight and 95/100 dollars ($108.95) per week.
 
         
 
              Defendants are to pay unto claimant fifty-two point 
 
         five-seven-one (52.571) weeks of healing period benefits at the
 
         
 
         
 
         
 
         SUMMERS V. TOWERS  MOTEL
 
         Page 11
 
         
 
         
 
         stipulated rate of one hundred eight and 95/100 dollars ($108.95) 
 
         per week.
 
         
 
              Defendants are to reimburse claimant four hundred nine and 
 
         no/100 dollars ($409.00) for medical expenses incurred and paid 
 
         by claimant to Dr. Passick.
 
         
 
              Defendants are liable for future reasonable,and necessary 
 
         medical costs incurred by claimant, including reasonable and 
 
         necessary costs incurred from Dr. Passick.
 
         
 
              Payments that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Defendants are to be given credit for any benefits 
 
         previously paid to claimant.
 
         
 
              Costs are assessed against defendants pursuant to Division 
 
         of Industrial Services Rule 343-4.33.
 
         
 
              Defendants shall file a claim activity report upon payment 
 
         of this award.
 
         
 
         
 
              Signed and filed this 13th day of September, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                         MICHELLE A. McGOVERN
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. M. Gene Blackburn
 
         Attorney at Law
 
         142 N. 9th St.
 
         P. 0. Box 817
 
         Fort Dodge, Iowa 50501
 
         
 
         Mr. Roy M. Irish
 
         Attorney at Law
 
         729 Ins. Exchange Bldg.
 
         Des Moines, Iowa 50309
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                                  5-1803
 
                                                 Filed September 13, 1989
 
                                                 MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         VIOLA SUMMERS,
 
          
 
               Claimant,
 
          
 
          VS.                                      File No. 859059
 
          
 
          TOWERS MOTEL,                         A R B I T R A T I 0 N
 
          
 
               Employer,                           D E C I S I 0 N
 
          
 
          and
 
          
 
          FARMERS INSURANCE GROUP,
 
          
 
               Insurance Carrier,
 
              .Defendants.
 
         
 
         
 
         
 
         5-1803
 
         
 
              Claimant was awarded an 8 percent permanent partial 
 
         disability after she injured her back at work.  Claimant was 
 
         given a 2 percent functional impairment rating by her treating 
 
         physician.  Claimant was placed under restrictions upon her 
 
         return to work.  Claimant had a loss of earning capacity and a 
 
         loss of earnings.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JIM RAUSCH,
 
         
 
              Claimant,                               File No. 859151
 
         
 
         vs.                                       A R B I T R A T I O N
 
         
 
         GODFATHER'S PIZZA,                           D E C I S I O N
 
         
 
              Employer,
 
                                                         F I L E D
 
         and
 
                                                        NOV 03 1989
 
         ST. PAUL FIRE AND MARINE
 
         INSURANCE COMPANY,                         INDUSTRIAL SERVICES
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by claimant Jim 
 
         Rausch against defendant employer Godfather's Pizza and defendant 
 
         insurance carrier St. Paul Fire and Marine Insurance Company to 
 
         recover benefits under the Iowa Workers' Compensation Act as the 
 
         result of an alleged injury sustained on July 4, 1987.  This 
 
         matter came on for hearing before the undersigned in Cedar 
 
         Rapids, Iowa, on October 10, 1989.  The matter was considered 
 
         fully submitted at the close of hearing.  The record in the 
 
         proceeding consists of joint exhibits 1 through 18 and the 
 
         testimony of claimant, Phyllis Rausch, and Dawn Nunnikhoven.
 
         
 
                                     ISSUES
 
         
 
              Pursuant to the prehearing report submitted by the parties 
 
         and approved by the undersigned, the parties have stipulated:  
 
         That an employment relationship existed between claimant and the 
 
         employer at the time of the alleged injury; that if temporary 
 
         disability be awarded, claimant was off work from July 5, 1987 
 
         through August 15, 1987; that the commencement date for permanent 
 
         partial disability is August 16, 1987; that if claimant sustained 
 
         permanent disability, it is an industrial disability to the body 
 
         as a whole; that defendants paid claimant three weeks, one day 
 
         compensation at the rate of $44.56 prior to hearing.
 
         
 
              Issues presented for determination include:  Whether 
 
         claimant sustained an injury on July 4, 1987, arising out of and 
 
         in the course of his employment; whether the alleged injury 
 
         caused temporary or permanent disability; the extent of 
 
         claimant's entitlement to compensation for permanent disability; 
 
         the rate of compensation; claimant's entitlement to medical 
 
         benefits; taxation of costs.
 
                                                
 
                                                         
 
         
 
                            REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified that he began employment as a part-time 
 
         pizza maker with defendant in January, 1986.  His duties included 
 
         making pizza, running the cash register and bussing tables. 
 
         Defendant employer is a pizza restaurant.
 
         
 
              Claimant described his injury as occurring on July 4, 1987, 
 
         when he was bussing tables.  He picked up a full tub of dishes 
 
         from a table and turned.  When he did so, he felt a sharp "pull" 
 
         in the lower back with strain, pain and a "snapping" sensation. 
 
         This occurred at approximately 9:00 p.m.  Claimant testified that 
 
         he worked for about one more hour and then asked to go home early 
 
         because his pain was increasing.
 
         
 
              Claimant stated that he took the next day off work and 
 
         remained in bed with pain across his entire low back.  During the 
 
         next week following his injury, claimant worked only about one 
 
         hour, but had to return home because of pain.
 
         
 
              Claimant agreed that he had experienced an episode of back 
 
         pain prior to his work injury.  This occurred in the summer of 
 
         1986 at football practice, when he experienced low back pain.  He 
 
         visited the emergency room at Mercy Hospital and was given pills 
 
         for spasm.  This incident did not interfere with claimant's 
 
         ability to continue playing football.
 
         
 
              Claimant also testified to a subsequent incident on July 13, 
 
         1987.  Claimant testified that he and a friend, James Albaugh, 
 
         attended a summer football practice conducted by the high school 
 
         from which the two men had graduated.  Claimant indicated that he 
 
         was at the practice for some 45-60 minutes, but did not jump rope 
 
         or run (although Albaugh did).  While doing loosening 
 
         calisthenics, claimant experienced a "stretching" sensation in 
 
         his back, which caused his knees to buckle from the increased 
 
         pain and caused him to fall.
 
         
 
              He was then taken to the emergency room at Mercy Hospital in 
 
         "excruciating pain" by his mother.  Claimant's mother (Phyllis 
 
         Rausch) talked to the hospital employee with intake 
 
         responsibilities.  Claimant had his history taken by a nurse and 
 
         was examined by a physician.  The diagnosis was of back strain 
 
         and he was treated with medications, advised to undertake 5-7 
 
         days of bed rest and to follow up with James R. Bell, M.D.
 
         
 
              Claimant advised that he did tell the examining physician of 
 
         the track incident, but did not mention the prior work incident 
 
         that is the subject of this dispute.  However, claimant testified 
 
         that his mother did advise the physician, Robert A. Handler, 
 
         M.D., of the work incident.
 
         
 
              Claimant testified that he saw Dr. Bell for a college 
 
         physical and follow-up of his back problems, but did not inform 
 
         that physician of his claimed work injury.  Although Dr. Bell did 
 
                                                
 
                                                         
 
         not restrict claimant against playing football, he advised 
 
         claimant that college football was not a particularly good idea.
 
         
 
              Claimant testified that he also sought treatment from J. N. 
 
         Geelan, D.C., for his injury because his back was not improving. 
 
         He testified on direct examination that he saw Dr. Geelan 
 
         approximately 35 times, but agreed on cross-examination that he 
 
         was seen on 13 occasions in August, 1987 and April, 1988.  
 
         Claimant agreed that except for one spinal adjustment in April, 
 
         1988, he saw no physician for treatment of his back injury from 
 
         the end of August, 1987 through December, 1988.
 
         
 
              Claimant also testified that he visited W. John Robb, M.D., 
 
         of the Iowa Musculoskeletal Center, P.C., on two to three 
 
         occasions.  Dr. Robb is an orthopaedic specialist.  Claimant 
 
         testified that Dr. Robb treated him with medications and 
 
         prescribed exercises, particularly including a swimming regimen.
 
         
 
              Claimant testified that as of the present date, he still 
 
         suffers pain, but that it is milder.  The pain increases when he 
 
         runs or exercises.  Claimant now plays basketball, but has given 
 
         up football.
 
         
 
              Phyllis Rausch testified that she is claimant's mother, and 
 
         that claimant was living at home at the time of the alleged work 
 
         injury.  She testified that claimant had no prior back 
 
         complaints.
 
         
 
              Ms. Rausch testified that claimant returned home early the 
 
         night of his claimed work injury and went to bed with a heat 
 
         pack. On the following morning, he was unable to move 
 
         comfortably.  He did not work the rest of the week, although he 
 
         went in to work on one day (approximately July 10) for about one 
 
         hour, and then returned home because he could not handle the work 
 
         with his pain.
 
         
 
              Ms. Rausch also testified that she took claimant to the 
 
         hospital following his workout incident of July 13, 1987.  She 
 
         testified that the emergency room was very busy on that day and 
 
         that she gave intake information to the intake person,,and was 
 
         present when claimant spoke to the nurse.  She agreed that 
 
         claimant told the nurse of the workout incident.  Ms. Rausch also 
 
         testified that the physician who saw claimant in the.emergency 
 
         room (Dr. Handler) did not take a history of the injury.  However, 
 
         she indicated that she personally told the physician of the work 
 
         injury, following which Dr. Handler asked claimant more questions, 
 
         but did not write down notes as to that conversation.
 
         
 
              Ms. Rausch testified that she was advised by the hospital on 
 
         approximately July 27 that insurance coverage of the claim had 
 
         been denied.  She sought to speak to Dr. Handler (intending to 
 
         refresh Dr. Handler's memory) and went down to the hospital, but 
 
         was denied access.  It was this episode that caused an addendum 
 
         to be added on July 30, 1987 to Mercy Hospital's notes (exhibit 
 
         3, page 1) to the effect that "mother called 7 30 87-states 
 
                                                
 
                                                         
 
         problem began when son lifted a tub at work one week before-works 
 
         godfath."
 
         
 
              Ms. Rausch also testified that claimant remained at home the 
 
         rest of that summer and continued suffering from back pain, for 
 
         which he saw Dr. Geelan.  She further indicated that claimant has 
 
         had continuing episodes of pain, for example, being bedridden 
 
         during one Christmas vacation.  At least this episode was "just 
 
         like the first occurrence."
 
         
 
              Dawn Nunnikhoven testified that she is a legal assistant 
 
         employed by claimant's attorney and that she took a statement 
 
         from James Albaugh by telephone on January 13, 1988.  She further 
 
         testified that Mr. Albaugh signed the statement (in evidence as 
 
         exhibit 15) after he added his age to the document.
 
         
 
              James Albaugh testified by deposition taken September 25, 
 
         1989.  Also in evidence as exhibits 15 and 16, respectively, are 
 
         his signed statement of January 13, 1988, and a transcript of a 
 
         telephone conversation with Sue Schreiner on November 8, 1988.
 
         
 
              The statements given by Mr. Albaugh on three occasions 
 
         contain numerous inconsistencies.  On January 13, 1988, he stated 
 
         that claimant did not wish to go to the practice field because 
 
         his back was hurting.  He stated that claimant was doing some 
 
 
 
                            
 
                                                         
 
         stretching exercises and that he did no running, being at the 
 
         track for only 10-15 minutes before the onset of pain.  In his 
 
         statement of November 8, 1988, his recollection was that claimant 
 
         was running 40-yard dashes when he hurt his back; he did not 
 
         think it was "completely full sprint but it was pretty close," a 
 
         little bit faster than jogging.  In this statement, Mr. Albaugh 
 
         did not recall claimant having complained of back pain before 
 
         beginning to exercise.  In the deposition of September 25, 1989, 
 
         Mr. Albaugh believed that claimant was running or practicing 
 
         40-yard dashes and did not recall any complaints about the work 
 
         injury before the workout began.  Mr. Albaugh agreed that his 
 
         memory would have been better at the time of his first statement 
 
         in January, 1988, and was generally at that time uncertain of his 
 
         memory of the events of July 13, 1987.
 
         
 
              Records of Mercy Hospital Trauma Center reflect that 
 
         claimant visited the emergency room in the company of his mother 
 
         on July 24, 1986.  Subjective findings were that he complained of 
 
         back pain, stating that it was intermittently bothering him, and 
 
         that he became progressively more uncomfortable at football 
 
         practice. The pain just came on while he was running.  Objective 
 
         findings were of some paravertebral muscle spasm in the L5 area 
 
         with no radicular pain down the legs, but claimant stated he did 
 
         have some when he stood up.  Straight leg raising was negative 
 
         for radicular pain.  Claimant was assessed as suffering acute 
 
         mechanical low back strain.
 
         
 
              X-rays were taken on that occasion and read by W. R. Neff, 
 
         M.D.  Dr. Neff found two millimeters of posterior translation of 
 
         L3 on L4 with possibly some mild intervertebral disc space 
 
         narrowing at this level and also possibly slight narrowing at 
 
         L5-S1.  Dr. Neff found this to be suggestive of early 
 
         degenerative disc disease and the appearance of a suggestion of 
 
         mild disc space loss at L5-S1.  Notes of the Mercy Hospital 
 
         Trauma Center of July 13, 1987, show that claimant arrived in the 
 
         company of his mother and was seen by Dr. Handler.  The nurse's 
 
         handwritten notes show that claimant was running and felt 
 
         something pull in the lower back, that he was unable to sit, that 
 
         he suffered weakness in the right leg, and that claimant stated 
 
         he suffered back spasms the previous summer.
 
         
 
              Dr. Handler's notes on July 13, 1987 reflect that claimant 
 
         was then 17 years old and that he was "running and felt a pulling 
 
         pain in the low back associated with some weakness in the R leg.  
 
         The pain was nonradiating, associated with spasm.  He has had 
 
         previous episodes of similar problems in the part.  Denies any 
 
         unusual lifting or any trauma."  Claimant's back showed full range 
 
         of motion without pain, but there was some tenderness in the L5,S1 
 
         area.  Straight leg raising was to 90 degrees without pain on 
 
         dorsiflexion of the foot.  Neurologic exam showed motor to be 5/5, 
 
         sensory intact to pinprick in all dermatones.  Lumbosacral spine 
 
         was negative.  Dr. Handler's impression was of low back strain.  
 
         He prescribed medications, local heat, and bed rest on a firm 
 
         mattress.
 
         
 
                                                
 
                                                         
 
              Radiological views were taken by R. R. Gambach, M.D., on 
 
         July 13, 1987.  The view of the lumbosacral spine was read as 
 
         showing good lumbar vertebral alignment with mild narrowing of 
 
         the L3-4 disc noted on the lateral view, similar to July 25, 
 
         1986.  Dr. Gambach's impression was of mildly narrowed L3-4 
 
         disc.
 
         
 
              The notes of James Bell, M.D., of July 27, 1987, reflect that 
 
         claimant was seen for a college physical.  Claimant's pain at that 
 
         time was resolving, although still present intermittently.  Dr. 
 
         Bell's assessment was of an essentially unremarkable physical.  
 
         His plan was that claimant could undertake full activity with 
 
         instructions given on gradual increase in his activity level with 
 
         regards to the back.  Dr. Bell noted that they had gone over some 
 
         exercises, such as half situps, straight leg raises, and pelvic 
 
         tilting to strengthen the lower back.  Dr. Bell clarified this 
 
         visit in a letter of December 4, 1987.  He noted that claimant had 
 
         been seen primarily for an emergency room recheck after his acute 
 
         low back strain and to determine whether or not he could 
 
         participate in intercollegiate athletics.  Consequently, a college 
 
         physical was performed.
 
         
 
              Dr. Geelan's medical records reflect that claimant was seen 
 
         on 12 occasions in August, 1987 and again on April 19, 1988.  His 
 
         report was undated, but received by defendant insurance carrier 
 
         on August 25, 1987.  In that report, Dr. Geelan noted claimant's 
 
         history of bussing tables at Godfather's when the injury 
 
         occurred. He opined that the accident referred to was the only 
 
         cause of claimant's condition.  Dr. Geelan's impression was of 
 
         lumbar vertebral subluxation, misalignment with low back pain, 
 
         right hip area and a positive straight leg raising test.  Dr. 
 
         Geelan took x-rays, but the x-ray diagnosis was simply of low 
 
         back pain.  Dr. Geelan did not believe that the injury would 
 
         result in a permanent defect and released claimant to his regular 
 
         work effective August 15, 1987.  He believed that further 
 
         treatment would be necessary, but the extent was undeterminable 
 
         at that time.  There is no indication in Dr. Geelan's records 
 
         that he was aware of the practice field incident on July 13, 
 
         1987.
 
         
 
              Dr. Robb wrote claimant's counsel on December 29, 1988, and 
 
         January 5 and April 26, 1989.  Dr. Robb saw claimant on December 
 
         22, 1988 and January 3 and April 5, 1989.
 
         
 
              Dr. Robb stated on December 29, 1988 that claimant had 
 
         reported the Godfather's Pizza incident of July 4, 1987 in much 
 
         the same way as claimant's testimony at hearing and in his 
 
         deposition.. Further, he noted:
 
         
 
              He advises me that after a few days, on 7/13/87, he reported 
 
              to Mercy Hospital where x-rays were taken of his low back, 
 
              apparently at the request of Dr. Hodge, and which is 
 
              described by Dr. Gambach as showing mild narrowing of the 
 
              L3-4 disc space.
 
         
 
                                                
 
                                                         
 
         This is Dr. Robb's only reference to the workout incident of July 
 
         13, 1987.
 
         
 
              Dr. Robb noted on January 5, 1989, that a CT scan had been 
 
         performed on December 27, 1988.  The scan showed a soft tissue 
 
         density at the L5-S1 level, rather in the midline and to a 
 
         certain extent at the right, with a significant enough protrusion 
 
         that it could cause some nerve root irritation. His diagnosis was 
 
         of recurrent disc syndrome L5-S1 with moderate nerve root 
 
         irritation.
 
         
 
              Dr. Robb reported on April 26, 1989, that claimant continued 
 
         having some pain.  His diagnosis was of mild disc protrusion 
 
         L5-S1 right.  He believed that claimant was going to improve but 
 
         would have some permanent residuals as a result of the disc 
 
         extrusion which would limit some of his physical activities in 
 
         the future: any heavy lifting, repetitive bending or stooping or 
 
         prolonged sitting or riding.  Dr. Robb opined that claimant had a 
 
         five percent.permanent impairment of function of the body as a 
 
         whole as a result of the disc herniation and the ultimate 
 
         residuals.
 
         
 
              On September 25, 1989, Dr. Robb responded to a letter from 
 
         claimant's counsel that claimant's five percent permanent 
 
         impairment was a result of claimant's injury occurring at 
 
         Godfather's Pizza on July 4, 1987.
 
         
 
              Dr. Handler testified by deposition taken December 23, 1988. 
 
         Dr. Handler is board-certified in internal medicine and emergency 
 
         medicine.  He testified that he did not have specific 
 
         recollection of claimant's visit to the emergency room on July 
 
         13, 1987, but testified generally as to his notes and routine 
 
         procedure.
 
         
 
              As to the history claimant gave, Dr. Handler indicated that 
 
         he normally seeks advice as to whether there was any unusual 
 
         lifting incident or other trauma, and added:
 
         
 
              Q.  With a back type patient or a patient complaining of 
 
              back symptoms, is that something that you normally ask a 
 
              patient, as to whether or not they fell or had trauma or had 
 
              an unusual lifting incident and things of that nature?
 
         
 
              A.  We do that for a couple reasons.  One is any patient 
 
              seen -- We do a lot of workmen's compensation.  Back is 
 
              really a lot related to workmen's compensation.  Typically 
 
              there will be a workmen's compensation form filled out with 
 
              any back injury that has any relationship to work at all.  
 
              And so it's one of the questions we ask.  The other thing is 
 
              that typically because these are work related you want to 
 
              know whether there is any possibility of work involved.
 
         
 
              Q.  Was there any indication by the patient whatsoever as to 
 
              whether or not this injury was work related?
 
         
 
                                                
 
                                                         
 
              A.  At this time -- At the time of my dictation, apparently 
 
              not.
 
         
 
              Q.  If there was some indication of a work-related injury, 
 
              is there some type of form, you indicate, that the trauma 
 
              center would fill out?
 
         
 
              A.  With every -- even distantly related, we fill out a 
 
              workmen's compensation form.  It should enter into with the 
 
              chart and be a part of the permanent record, and a copy goes 
 
              on to the workmen's compensation insurance and to the 
 
              employer and a copy goes with the patient.
 
         
 
         (Dr. Handler deposition, page 5, line 3 through page 6, line 4)
 
         
 
              With regard to the sed. rate test performed at the time of 
 
         claimant's visit, Dr. Handler also testified that he usually did 
 
         not perform such a test in a workers' compensation case, but does 
 
         so typically on young people who have had recurrent problems, and 
 
         that he was looking for ankylosing spondylitis.  The test was 
 
         negative.
 
         
 
              As to the history set forth in the emergency room notes, Dr. 
 
         Handler testified that the handwritten portion was done by the 
 
         intake nurse, while the typed portion was his report.
 
         
 
              Asked specifically with respect to the addendum that 
 
         appeared on July 30, 1987, whether any mention of the work 
 
         incident had been made during his examination of the claimant, 
 
         Dr. Handler responded in the negative.  Dr. Handler also 
 
         testified as to emergency room procedure in general. with respect 
 
         to work injuries:
 
         
 
                            
 
                                                         
 
              A.  Any mention of possibility of work relation anywhere in 
 
              his time in the emergency room will get a workmen's 
 
              compensation form.  Any mention of it anywhere from when he 
 
              checks into the front desk, it can be triggered then, to any 
 
              mention to the nurses, to myself, will get a workmen's 
 
              compensation form.  It's a standard form.  It's, in fact, a 
 
              part of our discharge form.
 
         
 
              Q.  Is that a specific question that's asked of people --
 
         
 
              A.  Yes.
 
         
 
              Q.  -- when they come in?  Is that by you or by the nurse?
 
         
 
              A.  It could be by either.
 
         
 
         (Dr. Handler deposition, page 15, lines 1 through 14)
 
         
 
              When examined by claimant's counsel, Dr. Handler agreed that 
 
         it was possible that claimant had suffered a back injury which 
 
         was exacerbated by running.
 
         
 
                          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).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 
 
         246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of July 4, 1987 is causally related 
 
         to the disability on which he now bases his claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
         insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
                                                
 
                                                         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756 (1956).  
 
         If the claimant had a preexisting condition or disability that is 
 
         aggravated, accelerated, worsened or lighted up so that it 
 
         results in disability, claimant is entitled to recover.  Nicks v 
 
         Davenport Produce Co., 254 Iowa  130, 115 N.W.2d 812 (1962).
 
         
 
              The parties dispute whether claimant suffered an injury 
 
         arising out of and in the course of his employment, and whether 
 
         the injury, if established, bears a causal relationship to 
 
         temporary or permanent disability.  It is clear that claimant had 
 
         at least one episode of back problems in 1986.  However, he was 
 
         able to continue playing high school football after that injury, 
 
         which is indicative that little if any disability resulted.
 
         
 
              The more serious problem relates to claimant having suffered 
 
         a work episode on July 4 and a workout episode on July 13, 1987. 
 
         The question of causal connection will be discussed first.
 
         
 
              If it be assumed that claimant did suffer a work injury on 
 
         July 4, 1987, it is primarily within the realm of expert 
 
         testimony to establish causal connection to temporary or 
 
         permanent disability.  Assuming that injury, the problem in this 
 
         case is that claimant did not seek medical attention after the 
 
         work injury, but did seek medical attention after an acute 
 
         episode suffered while working out on July 13.  Therefore, it 
 
         becomes of critical importance to distinguish between disability 
 
         caused by the injury and disability caused by the exacerbation, 
 
         or whether all of claimant's claimed disability is related only 
 
         to the injury or workout.  Two physicians have expressed opinions 
 
         as to this causal connection.  Dr. Geelan filled out an insurance 
 
         form to the effect that the work injury was the sole cause of 
 
         claimant's problems (although he anticipated no permanent 
 
         disability).  Yet, there is no evidence whatsoever in Dr. 
 
         Geelan's medical records to reflect that he was even advised of 
 
         the acute onset of pain on July 13, 1987 when claimant was 
 
         working out.  Similarly, Dr. Robb reports on December 29, 1988, 
 
         that claimant's history is of a back injury at Godfather's, but 
 
         his only reference to the July 13 episode is that claimant 
 
         "advises me that after a few days, on 7/13/87, he reported to 
 
                                                
 
                                                         
 
         Mercy Hospital."  Thus, it does not appear that Dr. Robb was 
 
         advised of the nature of this acute episode. These two incidents 
 
         were so close together in time that when the additional fact that 
 
         claimant sought medical attention only after the workout incident 
 
         is considered, the lack of medical evidence distinguishing 
 
         between the two episodes is of such great significance that it 
 
         cannot be said that claimant has met his burden of proof in 
 
         establishing causal connection between the work injury his 
 
         claimed disability.  Therefore, permanent disability will not be 
 
         awarded in this case.
 
         
 
              A standard calendar shows that July 4, 1987 fell on a 
 
         Saturday.  Claimant and his mother testified that claimant missed 
 
         the next week of work.  Accordingly, if a work injury be found to 
 
         have caused that loss of work, temporary total disability would 
 
         be appropriate.  At this point, a credibility issue is presented. 
 
         James Albaugh has given several varying reports as to what 
 
         occurred at the practice field and whether claimant had 
 
         complained of pain prior to the workout incident.  It is obvious 
 
         that Mr. Albaugh's recollection is unreliable based on the large 
 
         number of inconsistencies in his three statements.  Although 
 
         nothing in the demeanor of claimant or Phyllis Rausch would 
 
         indicate that.either was testifying untruthfully, it is still 
 
         appropriate to look at the contemporaneous medical records.  Dr. 
 
         Handler, a certified emergency medical practitioner, was rather 
 
         emphatic in pointing out that any hint of a work-related injury 
 
         would result in workers' compensation forms being filled out and 
 
         a notation made. This could have occurred at any state during the 
 
         emergency room visit on July 13, 1987.  He testified that a 
 
         direct request for information as to potential lifting or other 
 
         trauma or work injuries would have been made.  The 
 
         contemporaneous record reflects that no such notations were made.  
 
         The next physician seen by claimant was Dr. Bell.  He made no 
 
         reference in his notes of July 27, 1987 of any work injury 
 
         (claimant also testified that he did not advise Dr. Bell of any 
 
         work injury).
 
         
 
              Based on the known fact of the July 13, 1987 trauma and the 
 
         lack of any contemporaneous medical notation to the effect that 
 
         claimant had suffered a work injury on July 4, 1987, it must be 
 
         concluded that claimant has failed to meet his burden of proof in 
 
         establishing an injury arising out of and in the course of his 
 
         employment with defendant Godfather's Pizza on July 4, 1987.
 
         
 
                             FINDINGS OF FACT
 
         
 
              THEREFORE, based on the evidence presented, the following 
 
         ultimate facts are found:
 
         
 
              1.  Claimant was employed by defendant Godfather's Pizza on 
 
         July 4, 1987.
 
         
 
              2.  Claimant has not shown that he suffered an injury 
 
         related to his work on July 4, 1987.
 
         
 
                                                
 
                                                         
 
              3.  Although claimant has presented evidence as to permanent 
 
         disability, he has failed to present evidence establishing that 
 
         his disability was caused by his claimed work injury.
 
         
 
                               CONCLUSION OF LAW
 
         
 
              WHEREFORE, based on the principles of law previously stated, 
 
         the following conclusion of law is made:
 
         
 
              1.  Claimant has failed to establish that he sustained an 
 
         injury arising out of and in the course of his employment with 
 
         defendant Godfather's Pizza on July 4, 1987.
 
         
 
                                     ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant shall take nothing from this proceeding.
 
         
 
              The costs of this action shall be assessed to claimant 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 3rd day of November, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            DAVID RASEY
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
                                     
 
                                     
 
                                                         
 
         Copies To:
 
         
 
         Mr. Thomas M. Wertz
 
         Attorney at Law
 
         4089 21st Avenue SE
 
         Suite 114
 
         Cedar Rapids, Iowa  52404
 
         
 
         Mr. Greg A. Egbers
 
         Attorney at Law
 
         600 Union Arcade Building
 
         111 East Third Street
 
         Davenport, Iowa  52801
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            51402.20
 
                                            Filed November 3, 1989
 
                                            DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JIM RAUSCH,
 
         
 
              Claimant,
 
         
 
         vs.                                         File No. 859151
 
         
 
         GODFATHER'S PIZZA,                       A R B I T R A T I 0 N
 
         
 
              Employer,                              D E C I S I 0 N
 
         
 
         and
 
         
 
         ST. PAUL FIRE AND MARINE
 
         INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         51402.20
 
         
 
              Claimant failed to establish that he sustained an injury 
 
         arising out of and in the course of his employment.
 
 
 
 
 
         
 
         
 
         
 
 
 
 
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
           
 
            MIKE TREINEN,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 859406
 
            PACKERS SANITATION SERVICE,   
 
                                                  A P P E A L
 
                 Employer, 
 
                                                 D E C I S I O N
 
            and       
 
                      
 
            LIBERTY MUTUAL,     
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ____________________________________________________________
 
           
 
                                STATEMENT OF THE CASE
 
            
 
            Defendants appeal from an arbitration decision awarding 
 
            permanent total disability benefits as the result of an 
 
            alleged injury on May 27, 1987.
 
            
 
                                     ISSUES
 
            
 
            Defendants state the following issues on appeal:
 
            
 
            1.  Whether substantial evidence supports a finding of 
 
            permanent total disability.
 
            
 
            2.  Whether the medical evidence supports a finding of 
 
            6-13-88 as the date claimant reached maximum medical 
 
            improvement.
 
            
 
                              FINDINGS OF FACT
 
            
 
            The findings of fact contained in the proposed agency 
 
            decision filed August 21, 1990 are adopted as final agency 
 
            action.
 
            
 
                             CONCLUSIONS OF LAW
 
            
 
            The conclusions of law contained in the proposed agency 
 
            decision filed August 21, 1990 are adopted as final agency 
 
            action, with the following additional analysis:
 
            Claimant was 27 years old at the time of the hearing in this 
 
            case.  Claimant's work injury resulted in a relatively low 
 
            functional impairment of eight percent of the body as a 
 
            whole.  There are jobs available in claimant's community 
 
            that claimant could perform, and employers willing to hire 
 
            him.  Claimant is not permanent totally disabled.
 
            Claimant has less than a high school education, and little 
 
            practical prospect of obtaining a G.E.D.  Claimant has no 
 
            work experience beyond the type of physical labor he can no 
 
            longer perform.  The range of jobs available to claimant is 
 
            limited.  However, claimant has also shown poor motivation 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            to find substitute work within his capabilities.  A 
 
            substantial period of time, nearly two years, elapsed 
 
            between claimant's initial rating of impairment by his 
 
            physician and his first attempt to find employment.  In 
 
            addition, there is testimony in the record from claimant's 
 
            physician that claimant attempted to enhance his rating of 
 
            impairment by not fully cooperating with the physical tests 
 
            performed on him.
 
            
 
            Based on these and all other appropriate factors for 
 
            determining industrial disability, claimant is determined to 
 
            have an industrial disability of 65 percent.
 
            Iowa Code section 85.34(1) states:
 
               
 
               If an employee has suffered a personal injury causing 
 
            permanent partial disability for which compensation is 
 
            payable as provided in subsection 2 of this section, the 
 
            employer shall pay to the employee compensation for a 
 
            healing period, as provided in section 85.37, beginning on 
 
            the date of injury, and until the employee has returned to 
 
            work or it is medically indicated that significant 
 
            improvement from the injury is not anticipated or until the 
 
            employee is medically capable of returning to employment 
 
            substantially similar to the employment in which the 
 
            employee was engaged at the time of injury, whichever occurs 
 
            first.
 
            
 
            Claimant received a rating of permanent functional 
 
            impairment on January 18, 1988.  His physical therapy ended 
 
            on February 22, 1988.  Claimant was not released to return 
 
            to work until June 13, 1988.  A rating of permanent 
 
            impairment is an indication that further significant 
 
            improvement from the injury is not anticipated, one of three 
 
            events that concludes the healing period under section 
 
            85.34(1).  That section states that the first of the events 
 
            to occur ends the healing period.  Claimant's healing period 
 
            ended on January 18, 1988.
 
            
 
            The portion of the deputy's arbitration decision filed 
 
            August 21, 1990 pertaining to vocational rehabilitation 
 
            witnesses giving less than impartial testimony due to their 
 
            need to obtain further work from employers and insurance 
 
            companies is not adopted in this appeal decision.
 
            
 
            WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            
 
                                      ORDER
 
            
 
            THEREFORE, it is ordered:
 
            
 
            That defendants are to pay unto claimant healing period 
 
            benefits from May 27, 1987 until January 18, 1988, at the 
 
            rate of one hundred seventy-three and 85/100 dollars 
 
            ($173.85) per week.
 
            
 
            That defendants are to pay unto claimant 325 weeks of 
 
            permanent partial disability benefits at the rate of one 
 
            hundred seventy-three and 85/100 dollars ($173.85) per week 
 
            from January 19, 1988.
 
            
 
            That defendants shall pay accrued weekly benefits in a lump 
 
            sum.
 
            
 
            That defendants shall pay interest on unpaid weekly benefits 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
            That defendants are to be given credit for benefits 
 
            previously paid.
 
            
 
            That defendants shall pay claimant's medical expenses.  
 
            
 
            Defendants shall pay the future medical expenses of claimant 
 
            necessitated by his work injury.
 
            
 
            That defendants shall pay the costs of this matter including 
 
            the transcription of the hearing.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
            Signed and filed this ____ day of June, 1992.
 
            
 
            
 
            
 
                             
 
                                        ________________________________
 
                                                BYRON K. ORTON
 
                                          INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Colin J. McCullough
 
            Attorney at Law
 
            701 W. Main St.
 
            Sac City, Iowa 50583
 
            
 
            Mr. James M. Cosgrove
 
            Attorney at Law
 
            P.O. Box 1828
 
            Sioux City, Iowa 51102
 
            
 
            Ms. Erin E. McCullough
 
            Attorney at Law
 
            326 4th
 
            Lake View, Iowa 51450
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MIKE TREINEN,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 859406
 
            PACKERS SANITATION SERVICE,   :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL,               :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Mike 
 
            Treinen, claimant, against Packers Sanitation Service, 
 
            employer (hereinafter referred to as Packers), and Liberty 
 
            Mutual Insurance Company, insurance carrier, defendants, for 
 
            workers' compensation benefits as a result of an alleged 
 
            injury on May 27, 1987.  On May 10, 1990, a hearing was held 
 
            on claimant's petition and the matter was considered fully 
 
            submitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of 
 
            contested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  Oral testimony and written exhibits were received 
 
            during the hearing from the parties.  The exhibits offered 
 
            into the evidence are listed in the prehearing report.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  On May 27, 1987, claimant received an injury which 
 
            arose out of and in the course of his employment with 
 
            Packers.
 
            
 
                 2.  Claimant is seeking temporary total disability or 
 
            healing period benefits from May 27, 1987 through March 18, 
 
            1988, and defendants agree that he was not working during 
 
            this period of time.
 
            
 
                 3.  If the injury is found to have caused permanent 
 
            disability, the type of disability is an industrial 
 
            disability to the body as a whole.
 
            
 
                 4.  Claimant's rate of weekly compensation in the event 
 
            of an award of weekly benefits from this proceeding shall be 
 
            $173.85.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination in this proceeding:
 
            
 
                   I.  The extent of claimant's entitlement to 
 
            disability benefits; and,
 
            
 
                  II.  The extent of claimant's entitlement to medical 
 
            benefits.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the 
 
            evidence, this deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants place claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the injury 
 
            and disability.  From his demeanor while testifying, 
 
            claimant is found credible.  Defendants have pointed to 
 
            inconsistencies in claimant's testimony but these 
 
            inconsistencies were either found to be minor or the result 
 
            of inaccuracy of conflicting testimony.  For example, 
 
            claimant was allegedly seen riding his bike but claimant 
 
            testified along with his wife that the bike had been sold 
 
            before the alleged incident.  Claimant and his wife were 
 
            believed.  In the opinion of this trier of fact, the alleged 
 
            conflicting testimony is the result of a witness who was 
 
            inaccurate as to the timing of certain events.
 
            
 
                 Claimant worked for Packers from January 1986 through 
 
            May 1986, the date of injury.  In his job, claimant cleaned 
 
            meat packing plants with high pressure hoses.  This involved 
 
            the extensive use of claimant's dominant right arm.  Between 
 
            1979 and January 1986, claimant performed similar duties for 
 
            another employer.  Claimant's only other work experience has 
 
            been as a car washer and janitor for an auto garage.
 
            
 
                 On or about May 27, 1987, claimant injured his right 
 
            shoulder and arm while using his pressure washer.  An 
 
            employee had shut off his hose increasing the pressure in 
 
            the hose claimant was using.  This caused a severe jerk of 
 
            the claimant's right arm and shoulder.  This jerk dislocated 
 
            claimant's shoulder briefly until he was able to lower his 
 
            arm.  Claimant had begun to have problems approximately six 
 
            months earlier with his shoulder and the problem gradually 
 
            worsened with repeated dislocations of the right shoulder 
 
            similar to the incident in May of 1987.  The incident in May 
 
            of 1987, however, was quite severe and claimant began to 
 
            experience chronic right shoulder and arm pain with 
 
            numbness.  Claimant's injury is cumulative trauma.  The 
 
            injury date chosen for this cumulative trauma to claimant's 
 
            shoulder is the date when claimant's pain compelled him to 
 
            leave work.  Although the histories prepared by the initial 
 
            physicians at the Mayo Clinic are not  exactly the same with 
 
            reference to the beginning of claimant's problems, this was 
 
            the apparent fault of the authors of the report, not 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            claimant's as claimant's account is believed.
 
            
 
                 As a result of the injury, consisting of a cumulative 
 
            injury to claimant's right shoulder, claimant has been 
 
            absent from his job at Packers since the date of injury.  
 
            Claimant only briefly returned in June of 1987 but quickly 
 
            left due to physical problems after pain reoccurred.  
 
            Following the injury, claimant was initially treated by 
 
            Ronald Miller, M.D.  After an evaluation by M. P. Margules, 
 
            M.D., during hospitalization, claimant was diagnosed as 
 
            suffering from derangement of the right shoulder due to 
 
            trauma and recurrent dislocations of the right shoulder.  
 
            Following unsuccessful conservative care, claimant was 
 
            referred to the Mayo Clinic who, on November 10, 1987, 
 
            surgically repaired a defect in claimant's right shoulder.  
 
            Claimant's recovery from this surgery was complicated by a 
 
            fall at home but according to claimant's primary treating 
 
            physician at Mayo, Douglas Becker, M.D., this incident did 
 
            not change his overall prognosis.
 
            
 
                 Claimant reached maximum healing from his shoulder 
 
            injury on June 13, 1988.  Dr. Becker stated on January 18, 
 
            1988 that he expected claimant will suffer an 8 percent 
 
            permanent partial impairment to the body as a whole. This 
 
            apparently was a projection.  It was not until June 13 that 
 
            the doctor released claimant to return to work.  Claimant's 
 
            treatment after that date was only maintenance in nature 
 
            according to the record.
 
            
 
                 As a result of the work injury of May 27, 1987, 
 
            claimant has suffered an eight percent permanent partial 
 
            impairment to the body as a whole.  Dr. Becker did not 
 
            change his initial projection.  Also, claimant is 
 
            permanently restricted from work or recreational activity 
 
            consisting of no use of heavy equipment; no overhead lifting 
 
            or repeated motion; and, no lifting over 10 pounds.  These 
 
            findings are based upon the opinions of the primary treating 
 
            physician, Dr. Becker and the other physicians and 
 
            occupational therapists involved in this case.
 
            
 
                 As a result of the work injury of May 27, 1987, the 
 
            resulting permanent partial impairment and the work 
 
            restrictions, claimant has suffered a total loss of earning 
 
            capacity.  The injury of May 27, 1987, rendered claimant 
 
            unemployable.  Claimant's medical condition before the work 
 
            injury was excellent and he had no functional impairments or 
 
            ascertainable disabilities.  Claimant was fully able to 
 
            perform physical tasks involving heavy lifting and 
 
            repetitive over head lifting before the work injury.  
 
            Claimant's medical condition now prevents him from returning 
 
            to his former work or any other work he has held in the 
 
            past.  Claimant is 30 years of age.  Claimant completed only 
 
            the tenth grade in a special education program.  Claimant 
 
            has no GED.  The record indicates that claimant has a 
 
            learning disability and performs well below average in 
 
            reading, math and arithmetic skills.  Claimant's past 
 
            employment primarily consists of heavy labor, the type of 
 
            employment he no longer can perform.
 
            
 
                 Claimant has been extensively evaluated by the Iowa 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            State Vocational Rehabilitation Facility and was found not 
 
            to be a candidate for competitive employment.  Defendants 
 
            have obtained a second opinion from Quality Rehabilitation 
 
            Services.  The staff of Quality disagrees with the State 
 
            Facility stating that the facility overlooked food/beverage 
 
            preparation and cashiering as possible occupations.  Quality 
 
            located a few local businesses who would consider claimant 
 
            for employment following a training program.  The job 
 
            recommended by Quality was as a bartender following 
 
            completion of a bartender course.
 
            
 
                 To the extent that the opinions of Quality 
 
            Rehabilitation conflict with the opinions of the State 
 
            Facility, the opinions of the State Facility were given 
 
            greater weight as the facility is considered to be the most 
 
            neutral among the two experts.  Quality is obviously 
 
            financially dependent upon private financing and the repeat 
 
            business of parties to workers' compensation cases.  Also, 
 
            there was no explanation in the record as to the obvious 
 
            conflict between the normal physical demands of a bartender 
 
            and claimant's current job restrictions involving use of his 
 
            arms and hands.  Admittedly, claimant refused to consider 
 
            bartending because of his views against drinking alcohol.  
 
            However, Quality never pursued any other occupation with him 
 
            such as cashiering or other part-time food service work 
 
            which they contend claimant could perform.
 
            
 
                 Defendants relied heavily upon claimant's alleged lack 
 
            of motivation stating that claimant is only mildly disabled.  
 
            It must be admitted that there was a delay in looking for 
 
            work on the part of claimant but this appears quite normal 
 
            for a person who has been restricted from performing most of 
 
            the work that he has performed in the past.  Also, almost 
 
            all vocational counselors, including Mr. Campbell from 
 
            Quality, stated that one of claimant's strong points was his 
 
            motivation to return to work.  Obviously, they felt that 
 
            claimant was not suffering from any sort of disability from 
 
            a lack of motivation.
 
            
 
                 Furthermore, defendants feel that claimant is 
 
            exaggerating his complaints and point to psychological 
 
            testing which illustrates exaggerated pain complaints.  It 
 
            is found that claimant developed chronic pain syndrome as a 
 
            result of the injury and his inability to return to work.  
 
            Only aggressive therapy will break this pain syndrome cycle 
 
            of pain and depression.  The only recommended treatment by a 
 
            physician to break this cycle of chronic pain syndrome has 
 
            been pain clinic therapy.  However, such therapy has not 
 
            been offered by defendant and to date claimant has not 
 
            underwent this recommended treatment.  These findings are 
 
            based upon the reports of the vocational counselors and Mayo 
 
            Clinic physicians.
 
            
 
                 Claimant does experience neck and low back pain.  
 
            Claimant has not shown a causal connection between his work 
 
            at Packers and this pain.  No physician has provided a 
 
            supportive causal connection opinion in this matter and 
 
            claimant admitted to prior injuries involving his neck and 
 
            back unrelated to his work.  No apportionment of permanent 
 
            disability in this case is necessary as no physician who has 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            opined that the back and neck problems were a cause of 
 
            permanent partial impairment or contributed to the work 
 
            restrictions which are causing claimant's loss of earning 
 
            capacity.
 
            
 
                 Claimant incurred babysitting expenses while attending 
 
            either vocational rehabilitation counseling or medical 
 
            treatment necessitated by the work injury.
 
            
 
                                conclusions of law
 
            
 
                   I.  Claimant must establish by a preponderance of the 
 
            evidence the extent of weekly benefits for permanent 
 
            disability to which claimant is entitled.  As the claimant 
 
            has shown that the work injury was a cause of a permanent 
 
            physical impairment or limitation upon activity involving 
 
            the body as a whole, the degree of permanent disability must 
 
            be measured pursuant to Iowa Code section 85.34(2)(u).  
 
            However, unlike scheduled member disabilities, the degree of 
 
            disability under this provision is not measured solely by 
 
            the extent of a functional impairment or loss of use of a 
 
            body member.  A disability to the body as a whole or an 
 
            "industrial disability" is a loss of earning capacity 
 
            resulting from the work injury.  Diederich v. Tri-City 
 
            Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A 
 
            physical impairment or restriction on work activity may or 
 
            may not result in such a loss of earning capacity.  The 
 
            extent to which a work injury and a resulting medical 
 
            condition has resulted in an industrial disability is 
 
            determined from examination of several factors.  These 
 
            factors include the employee's medical condition prior to 
 
            the injury, immediately after the injury and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  Olson v. Goodyear Service 
 
            Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  
 
            See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
            February 28, l985).
 
            
 
                 Defendants argue that it is likely that claimant's 
 
            earning capacity will increase upon completion of various 
 
            types of schooling and on-the-job training.  It is improper 
 
            for this agency to predict the future success of retraining 
 
            and any future job that may result from such retraining.  
 
            Such an assessment is too speculative in the assessment of 
 
            industrial disability especially in the case of claimant 
 
            herein who has a serious learning disability.  It is only 
 
            claimant's present, not future, earning capacity which is to 
 
            be measured in awarding permanent disability benefits.  
 
            Steward v. Crouse Cartage Co., Appeal Decision filed 
 
            February 20, 1987; Umphress v. Armstrong Rubber Co., Appeal 
 
            Decision filed August 27, 1987.  Therefore, claimant's 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            present industrial disability will be fully compensated.  
 
            Certainly, if claimant does successfully complete a 
 
            retraining program and does find suitable and stable work, 
 
            this agency is available upon proper petition by defendants 
 
            to review the award in this matter.
 
            
 
                 In the case sub judice, it is found that claimant has 
 
            suffered a complete loss of earning capacity as a result of 
 
            the work injury.  Based upon such a finding, claimant is 
 
            entitled as a matter of law to permanent total disability 
 
            benefits under Iowa Code section 85.34(3) until such time as 
 
            his disability changes.
 
            
 
                 The so-called "odd-lot" doctrine was not pled nor was 
 
            it used in arriving at the permanent total disability award.
 
            
 
                  II.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of a work injury.  Claimant contends that he 
 
            should be reimbursed his babysitting expenses for obtaining 
 
            treatment and vocational rehabilitation counseling.  Such 
 
            expenses however are not reimbursable under 85.27 or any 
 
            other workers' compensation statute.
 
            
 
                                      order
 
            
 
                 1.  Defendants should pay to claimant permanent total 
 
            disability benefits at the rate of one hundred seventy-three 
 
            and 85/l00 dollars ($173.85) from May 27, 1987 and 
 
            continuing indefinitely during the period of his disability.
 
            
 
                 2.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid.
 
            
 
                 3.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 4.  Defendants shall file activity reports on the 
 
            payment of this award as requested by this agency pursuant 
 
            to Division of Industrial Services Rule 343-3.l.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of August, 1990.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Colin J. McCullough
 
            Attorney at Law
 
            701 West Main St
 
            Sac City  IA  50583
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            Mr. James P. Comstock
 
            Mr. James M. Cosgrove
 
            Attorneys at Law
 
            1109 Badgerow Bldg
 
            P O Box 1828
 
            Sioux City  IA  51102
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1804
 
                                               Filed August 21, 1990
 
                                               LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MIKE TREINEN,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 859406
 
            PACKERS SANITATION SERVICE,   :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL,               :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-1804  -  extent of permanent disability benefits.
 
            
 
 
            
 
               
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
            ____________________________________________________________
 
           
 
            MIKE TREINEN,    
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                 File No. 859406
 
            PACKERS SANITATION SERVICE,     
 
                                                   R E M A N D
 
                 Employer,   
 
                                                 D E C I S I O N
 
            and         
 
                        
 
            LIBERTY MUTUAL,       
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            This matter was remanded to this agency by the Iowa District 
 
            Court, Crawford County, pursuant to a Ruling on Petition for 
 
            Judicial Review filed January 7, 1993.  It is hereby 
 
            ordered:
 
            The defendants shall pay to the claimant healing period 
 
            benefits from May 27, 1987, until March 18, 1988, at the 
 
            rate of $173.85 per week.
 
            The defendants shall pay to the claimant 325 weeks of 
 
            permanent partial disability benefits at the rate of 173.85 
 
            per week from March 19, 1988.  
 
            Signed and filed this ____ day of July, 1993.
 
            
 
            
 
            
 
            
 
                                      ________________________________
 
                                              BYRON K. ORTON
 
                                         INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Colin J. McCullough
 
            Attorney at Law
 
            701 W. Main St.
 
            Sac City, Iowa 50583
 
            
 
            Mr. Erin E. McCullough
 
            Attorney at Law
 
            326 4th St.
 
            Lake View, Iowa 51450
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            Mr. James M. Cosgrove
 
            Attorney at Law
 
            P.O. Box 1828
 
            Sioux City, Iowa 51102
 
            
 
 
            
 
 
 
             
 
 
 
 
 
                                                   5-1802; 5-1803
 
                                                   Filed July 16, 1993
 
                                                   Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            MIKE TREINEN,    
 
            
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                 File No. 859406
 
            PACKERS SANITATION SERVICE,     
 
                                                  R E M A N D
 
                 Employer,   
 
                                                 D E C I S I O N
 
            and         
 
                        
 
            LIBERTY MUTUAL,       
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            
 
            5-1802; 5-1803
 
            Upon remand, healing period and award of industrial 
 
            disability decided by the district court were ordered.