Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            DONALD W. TESCH,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 860672
 
            SIEH FARM DRAINAGE COMPANY,   :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL CASUALTY     :
 
            COMPANIES,                    :
 
                                          :
 
                 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 June 5, 1987.  Claimant cross-appeals.
 
            
 
                 The record on appeal consists of the transcript of the 
 
            arbitration proceeding; claimant's exhibits 1 through 49; 
 
            and defendants' exhibits A through F.  Both parties filed 
 
            briefs on appeal.
 
            
 
                                      ISSUES
 
            
 
                 Defendants state the following issues on appeal:
 
            
 
                 (A) whether Deputy Industrial Commissioner Trier 
 
                 erred in concluding that claimant's failure to 
 
                 relate "a long history of back problems" did not 
 
                 invalidate the causation opinions of Drs. Donohue, 
 
                 Hacker, and Woodward; (B) whether Deputy 
 
                 Industrial Commissioner Trier erred in failing to 
 
                 determine the extent of claimant's disability 
 
                 caused by the accident of June 5, 1987, and in 
 
                 concluding that a permanent total disability 
 
                 cannot be apportioned between an injury and a 
 
                 pre-existing condition which the Deputy finds to 
 
                 be "the major factor in producing the current 
 
                 disability"; and (C) whether the record, when 
 
                 viewed as a whole, supports Deputy Commissioner 
 
                 Trier's conclusions with regard to the 
 
                 occupational causation of claimant's present 
 
                 condition, and that claimant is permanently and 
 
                 totally disabled within the provisions of Iowa 
 
                 Code Section 85.34(3).  (Emphasis by author.)
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 Claimant states the following issue on cross-appeal:  
 
            "Claimant is entitled to an order awarding medical expenses 
 
            and the deputy erred in determining the prehearing order 
 
            prevented him from making such an award."
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The findings of fact contained in the proposed agency 
 
            decision filed March 27, 1990 are adopted as final agency 
 
            action.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The analysis concerning the issue of causal connection 
 
            between claimant's current condition and his work injury 
 
            contained in the arbitration decision filed March 27, 1990, 
 
            is adopted herein.  Although claimant clearly had 
 
            preexisting back problems, those back problems were not 
 
            disabling.  The degenerative nature of claimant's back 
 
            condition would have been apparent to his numerous doctors 
 
            even without claimant relating his many years of 
 
            chiropractic visits to his physicians.  The work injury 
 
            aggravated his preexisting back condition to the point where 
 
            surgery was necessary, and claimant was unable to work.  
 
            Although not the only cause of his present condition, and 
 
            perhaps not the primary cause of his present condition, 
 
            nevertheless claimant's work injury is a significant cause 
 
            of his present condition.  
 
            
 
                 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.  To establish compensability, the injury 
 
            need only be a significant factor, not the only factor, 
 
            causing the claimed disability.  Blacksmith v. All-American, 
 
            Inc., 290 N.W.2d 348, 354 (Iowa 1980); Langford v. Kellar 
 
            Excavating, 191 N.W.2d 667, 670 (Iowa 1971).  Claimant has 
 
            shown a causal connection between his work injury and his 
 
            present back condition.
 
            
 
                 The analysis contained in the arbitration decision in 
 
            regard to the extent of claimant's disability is adopted 
 
            herein with respect to all factors of industrial disability 
 
            except claimant's age.  In addition, that portion of the 
 
            arbitration decision referring to claimant's ability to earn 
 
            a living after his work injury as a factor of industrial 
 
            disability is specifically not adopted herein.
 
            
 
                 Claimant was 64 years of age at the time of the 
 
            hearing.  The approach of later years when it can be 
 
            anticipated that under normal circumstances a worker would 
 
            be retiring is, without some clear indication to the 
 
            contrary, a factor which can be considered in determining 
 
            the loss of earning capacity or industrial disability which 
 
            is causally related to the injury. Becke v. Turner-Busch, 
 
            Inc., Thirty-fourth Biennial Report of the Industrial 
 
            Commissioner 34 (Appeal Decision 1979); Merrill v. Eaton 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Corp., Appeal Decision, May 9, 1990; Barkdoll v. American 
 
            Freight System, Inc., Appeal Decision, June 28, 1988.  
 
            
 
                 Claimant's loss of earning capacity as a result of his 
 
            work injury is not as great as would be the case for a 
 
            younger worker.  It is also noted that claimant did not 
 
            exhibit motivation to find alternative work.  Based on these 
 
            and all other appropriate factors for determining industrial 
 
            disability, as set forth in the analysis section of the 
 
            arbitration decision filed March 27, 1990, claimant is 
 
            determined to have an industrial disability of 70 percent.
 
            
 
                 Defendants also argue on appeal that apportionment for 
 
            claimant's prior disability is appropriate.  However, 
 
            claimant was able to continue working at his job in spite of 
 
            his back condition for many years.  A prior condition that 
 
            is not disabling is not subject to apportionment.  Bearce v. 
 
            FMC Corporation, 465 N.W.2d 531 (Iowa 1991).
 
            
 
                 The parties asserted healing period as an issue at the 
 
            hearing.  This issue was not addressed in the arbitration 
 
            decision, as the deputy concluded that claimant was 
 
            permanently and totally disabled and thus healing period was 
 
            not appropriate.  Because healing period was not awarded in 
 
            the arbitration decision, it does not appear as an issue on 
 
            appeal.  However, in that claimant is awarded herein 
 
            permanent partial disability, a determination of entitlement 
 
            to healing period is necessary.
 
            
 
                 Claimant's injury occurred on June 5, 1987.  Claimant 
 
            underwent his first surgery on July 24, 1987.  On April 13, 
 
            1988, J. Michael Donohue, M.D., assigned a rating of 
 
            permanent impairment.  It appears that Dr. Donahue felt that 
 
            claimant had not yet reached maximum medical improvement and 
 
            that further surgery might be required, but that a rating 
 
            was being given in the event claimant opted not to undergo 
 
            surgery.  However, claimant continued to complain of 
 
            symptoms, and underwent surgery again on August 5, 1988.  
 
            Although Dr. Hacker stated at his deposition in 1989 that 
 
            claimant still had not reached maximum medical improvement, 
 
            claimant appears to have actually reached maximum medical 
 
            improvement earlier.  Following surgery, claimant underwent 
 
            a program of physical therapy that ended on October 15, 
 
            1988.  Claimant's treatment essentially ended at that point, 
 
            and further medical visits appear to be maintenance in 
 
            nature.  It appears that claimant actually reached maximum 
 
            medical improvement at the conclusion of his physical 
 
            therapy program.  Claimant is entitled to healing period 
 
            benefits from June 5, 1987 through October 15, 1988.  
 
            
 
                 As to claimant's medical expenses, the deputy who 
 
            presided at the hearing ruled that since the hearing 
 
            assignment order did not list this as an issue to be decided 
 
            at the hearing, he could not consider it.  As a deputy 
 
            industrial commissioner does not have the authority to 
 
            overrule a ruling by another deputy, and the hearing 
 
            assignment order constitutes an order of a deputy, this 
 
            determination was correct.  However, the industrial 
 
            commissioner on appeal does have the authority to overrule 
 
            the hearing assignment order if good cause exists to do so.  
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            It appears from the record that the parties did identify the 
 
            medical benefits issue at the time of the prehearing 
 
            conference as a contested matter between them.  The parties 
 
            also listed this issue in the prehearing report.  Both 
 
            parties conducted the hearing as though medical benefits 
 
            were an issue, and evidence on this issue was put into the 
 
            record.  
 
            
 
                 Defendants were not prejudiced or surprised by this 
 
            issue at hearing, and in fact defendants agreed it was an 
 
            issue at the hearing.  Although the hearing assignment order 
 
            is controlling on the question of what issues can be 
 
            considered at a hearing, from a review of the record and the 
 
            file, it appears that the absence of the medical benefits 
 
            issue from the hearing assignment order was a mere 
 
            scrivener's error.  It was the obligation of the parties, 
 
            upon receiving the hearing assignment well in advance of the 
 
            hearing, to bring the omission of a contested issue to this 
 
            agency's attention so that the hearing assignment order 
 
            could be amended.  This was not done.  However, in light of 
 
            the absence of prejudice to defendants, prohibiting 
 
            consideration of this issue would work a manifest injustice 
 
            to claimant.  The issue of entitlement to medical benefits 
 
            will be considered in this de novo review.  Although 
 
            properly raised as an appeal issue by claimant as 
 
            cross-appellant, defendants have not addressed this issue in 
 
            an appeal brief.
 
            
 
                 Claimant requested, and received, authorization to 
 
            consult Dr. Hacker.  However, the authorization by 
 
            defendants was limited to an evaluation, not treatment, and 
 
            was conditioned on claimant seeking a second opinion from 
 
            Dr. Donahue prior to any surgery recommended by Dr. Hacker.  
 
            Claimant declined to travel to see Dr. Donahue, but instead 
 
            sought a second opinion from an unauthorized Omaha 
 
            physician.  Claimant then underwent surgery by Dr. Hacker.
 
            
 
                 Claimant's refusal to see Dr. Donahue for a second 
 
            opinion was unreasonable.  The distance involved was not 
 
            prohibitive, and claimant would have been entitled to 
 
            reimbursement for his travel expenses under Iowa Code 
 
            section 85.27.  Claimant's visit to the Omaha physician for 
 
            a second opinion is clearly unauthorized, and the costs of 
 
            that second opinion will not be awarded to claimant.
 
            
 
                 The question remains whether the costs of the surgery 
 
            and other subsequent procedures performed by Dr. Hacker are 
 
            compensable.  In that defendants conditioned their approval 
 
            of Dr. Hacker upon a second opinion by Dr. Donahue prior to 
 
            surgery, which did not take place, the surgery by Dr. Hacker 
 
            was not authorized.
 
            
 
                 However, 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 Industrial Commissioner Report 210 (Appeal Decision 
 
            1982); Hutchinson v. American Freight Systems, Inc., I-1 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Iowa Industrial Commissioner Decisions 94 (Appeal Decision 
 
            1984).  There is an indication that the surgery by Dr. 
 
            Hacker was beneficial to claimant; there is no evidence it 
 
            was medically inappropriate.  The medical expenses of Dr. 
 
            Hacker will be awarded to claimant.  Claimant is not 
 
            entitled to interest on unpaid medical benefits as such is 
 
            not provided for in the law.
 
            
 
                 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 June 5, 1987 until October 15, 1988, at the 
 
            rate of two hundred eighteen and 61/100 dollars ($218.61) 
 
            per week.  
 
            
 
                 That defendants are to pay unto claimant 350 weeks of 
 
            permanent partial disability benefits at the rate of two 
 
            hundred eighteen and 61/100 dollars ($218.61) per week from 
 
            October 16, 1988. 
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum.
 
            
 
                 That defendants shall pay interest on unpaid weekly 
 
            benefits 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, 
 
            except as stated in the conclusions of law.  Defendants 
 
            shall pay the future medical expenses of claimant 
 
            necessitated by his work injury.
 
            
 
                 That defendants shall file claim activity reports as 
 
            required by this agency pursuant to rule 343 IAC 3.1(2).
 
            
 
                 Signed and filed this ____ day of March, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Charles T. Patterson
 
            Attorney at Law
 
            P.O. Box 3086
 
            Sioux City, Iowa 51102
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Mr. Frank T. Harrison
 
            Attorney at Law
 
            2700 Grand Ave., Ste 111
 
            Des Moines, Iowa 50312
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            1108.50, 1802, 1803, 1806, 
 
            2501, 2906
 
            Filed March 31, 1992
 
            Byron K. Orton
 
            MGT
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            DONALD W. TESCH,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 860672
 
            SIEH FARM DRAINAGE COMPANY,   :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL CASUALTY     :
 
            COMPANIES,                    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
            
 
            1108.50
 
            Deputy's determination that claimant's back condition was 
 
            causally connected to his work injury affirmed on appeal.  
 
            Although claimant had a long history of chiropractic 
 
            treatments for back pain prior to his work injury, the 
 
            condition was not disabling until the work injury.  
 
            Claimant's failure to tell his treating physicians about the 
 
            prior chiropractic visits was an incomplete history, but the 
 
            record indicated that claimant's degenerative condition 
 
            would have been evident to his physicians without claimant 
 
            relating the history.  
 
            
 
            1803
 
            Claimant's age of 64 is a factor tending to reduce his 
 
            industrial disability.  Claimant also showed poor motivation 
 
            to find alternative work.  However, claimant's low 
 
            educational level and severe restrictions and loss of 
 
            earnings indicated an industrial disability of 70 percent.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            1806
 
            Apportionment for claimant's prior back condition was not 
 
            appropriate, as the condition was disabling.  Citing Bearce 
 
            v. FMC Corporation, 465 N.W.2d 531 (Iowa 1991).
 
            
 
            1802
 
            Claimant's healing period held to end at the conclusion of 
 
            his physical therapy sessions.  Although one doctor 
 
            testified that claimant had still not reached maximum 
 
            medical improvement at the time of the hearing, the weight 
 
            of the medical evidence indicated that this treatment was 
 
            maintenance in nature, and that claimant's condition had 
 
            stabilized.  
 
            
 
            2906
 
            Deputy's determination that issue of medical benefits could 
 
            not be considered in decision because not listed on hearing 
 
            assignment order upheld on appeal.  However, industrial 
 
            commissioner exercised de novo power to consider the issue 
 
            as the record showed that the omission of the issue from the 
 
            hearing assignment order was mere oversight.  Both parties 
 
            listed the issue at the prehearing conference and in the 
 
            prehearing report, and both parties offered evidence into 
 
            the record on medical benefits.  Defendants were not 
 
            surprised or prejudiced, and denying the issue would have 
 
            worked manifest injustice to claimant.
 
            
 
            2501
 
            Claimant requested an evaluation by Dr. Hacker.  Defendants 
 
            authorized the evaluation, but specifically did not 
 
            authorize any surgery recommended by Dr. Hacker unless and 
 
            until a second concurring opinion was obtained from 
 
            defendants' doctor.  Claimant declined to travel 100 miles 
 
            to see defendants' doctor, and instead sought and obtained a 
 
            second opinion from a doctor of his choosing.  Held that the 
 
            cost of the unauthorized second opinion would not be 
 
            awarded, but the costs of the surgery would be awarded as 
 
            the surgery appeared to improve claimant's condition.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DONALD W. TESCH,
 
         
 
              Claimant,                                File No. 860672
 
         
 
         vs.                                        A R B I T R A T I O N
 
         
 
         SIEH FARM DRAINAGE COMPANY,                   D E C I S I O N
 
         
 
              Employer,
 
                                                          F I L E D
 
         and
 
                                                         MAR 27 1990
 
         EMPLOYERS MUTUAL CASUALTY
 
         COMPANIES,                                  INDUSTRIAL SERVICES
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Donald W. 
 
         Tesch against his former employer, Sieh Farm Drainage Company, 
 
         and its insurance carrier, Employers Mutual Casualty Companies.
 
         
 
              The case was heard and fully submitted at Storm Lake, Iowa 
 
         on September 11, 1989.  The record in the proceeding consists of 
 
         testimony from Donald W. Tesch, Bradley Miller, Veronica Eaton, 
 
         Ronald Henningsen, and JoEllen Parrott.  The record also contains 
 
         claimant's exhibits 1 through 49 and defendants' exhibits A 
 
         through F.  The record is inordinately extensive as a result of 
 
         duplication and inclusion of a great deal of material which has 
 
         no bearing upon any of the disputed issues in the case.  Both 
 
         parties have flagrantly violated paragraph 10(2) of the hearing 
 
         assignment order through the duplication of exhibits.
 
         
 
                                      ISSUES
 
         
 
              As defined by the hearing assignment order and prehearing 
 
         report, it is stipulated that Donald W. Tesch sustained an injury 
 
         on June 5, 1987 which arose out of and in the course of his 
 
         employment with his employer.  The severity of that injury is, 
 
         however, disputed and issues exist with regard to the extent of 
 
         claimant's entitlement to compensation for temporary total 
 
         disability or healing period, permanent partial disability or 
 
         permanent total disability.  Causation is the major issue in the 
 
         case.  An issue also exists with regard to determining the 
 
         correct rate of compensation.  Claimant seeks to obtain an award 
 
         for certain medical expenses.  The medical expense issue was not 
 
         identified on the hearing assignment order and the undersigned is 
 
         therefore prohibited from entering any ruling in that regard. 
 
         Since the undersigned is prohibited from making any ruling upon 
 
         the section 85.27 expenses, it is likewise impossible to make any 
 
         ruling concerning a credit under section 85.38(2) for those 
 
         claimed expenses.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                               SUMMARY OF EVIDENCE
 
         
 
              All the evidence referred to in the Introduction, as well as 
 
         the demeanor of those who testified at hearing, was considered 
 
         when deciding this case.  The lack of a reference to any 
 
         particular part of the record does not indicate that it was 
 
         overlooked.
 
         
 
              Donald W. Tesch is a 64-year-old married man who lives at 
 
         Milford, Iowa.
 
         
 
              Tesch dropped out of school after starting the eleventh 
 
         grade in order to perform farm work.  He entered the service in 
 
         1945 where he was trained in howitzers.  While in the service, a 
 
         finger on his left hand was amputated.  After being discharged in 
 
         1946, Tesch commenced work for Bob Sieh, who was doing business 
 
         as Sieh Farm Drainage.  Tesch remained employed by Sieh Farm 
 
         Drainage until 1987.  From 1952 through 1956, Tesch farmed but 
 
         still worked for Sieh on a part-time basis.
 
         
 
              Sieh Farm Drainage is a construction business which performs 
 
         dirt work using heavy equipment and which also operates a gravel 
 
         pit.  Tesch had been a crew supervisor at one point, but in 
 
         recent years had worked almost exclusively as a heavy equipment 
 
         operator. As an operator, he was also responsible for performing 
 
         routine maintenance and minor repairs on the equipment.  The work 
 
         has generally been characterized as being heavy in nature.
 
         
 
              Tesch has been diagnosed as having degenerative disc disease 
 
         and has a long history of back problems.  D. L. Anliker, D.C., 
 
         reported that he has treated claimant since 1947 (exhibit 24). 
 
         Records for that entire period of time were not introduced into 
 
         evidence, but the records do show that claimant received 18 
 
         chiropractic treatments in 1981, 17 in 1982 and 1983, 12 in 1984, 
 
         10 in 1985, and 13 in 1986.  In 1987, claimant had received 4 
 
         chiropractic treatments prior to the date of injury.  A report of 
 
         leg pain is shown in treatment records for June 4, 1987 affecting 
 
         claimant's left leg.  A treatment record dated May 6, 1985 
 
         reports pain in claimant's right leg.  Leg pain is also reported 
 
         in entries dated November 19, 1984, March 9, 1984, January 7, 
 
         1983, and May 8, 1982.  The records reflect that in 1972 claimant 
 
         was provided with a lumbosacral belt (exhibit A).  The treatment 
 
         notes show numerous complaints of low back pain and other back 
 
         pain complaints over the years.
 
         
 
              Claimant stated that at times he would seek chiropractic 
 
         treatment, quite often because it felt good, but that he was not 
 
         really having problems.  Bradley Miller, one of claimant's former 
 
         coworkers at Sieh Farm Drainage, stated that at times claimant 
 
         would miss short periods of work due to his back and that at 
 
         times it was evident that claimant's back was bothering him.
 
         
 
              Donald Tesch also has a long history of breathing 
 
         difficulties.  The Spencer Family Practice Center records show 
 
         several visits in 1986 for bronchitis.  Dr. Anliker's records 
 
         contain several references to asthma.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant fractured one of his arms in 1984.  In 1985, a 
 
         crane rolled over and claimant sustained injuries which were 
 
         diagnosed as a fracture of the left fibula, paravertebral muscle 
 
         spasm in the lumbar and thoracic spine, a left knee knee sprain 
 
         and a tear of the right knee medial meniscus (exhibit A).  
 
         Claimant was off work for a period of time as a result of the 
 
         1985 injury.  Claimant stated that no doctor imposed any 
 
         restrictions on his activities following recovery from those 
 
         injuries and that the medical treatment did not involve any real 
 
         treatment for his back condition.  Tesch stated that he performed 
 
         the same work as he had previously done following his return to 
 
         work in 1985 until June of 1987.
 
         
 
              Claimant's gross pay was $750.00 paid bimonthly.  It had 
 
         been the practice of Sieh Farm Drainage Company to pay an annual 
 
         bonus to employees.  The bonus was normally paid between 
 
         Christmas and New Years Day.  The size of the bonus varied 
 
         according to whatever the owner of the business selected.  If the 
 
         company had done well, the employees also did well in the amount 
 
         of the bonus.  Jim Sieh stated that normally a bonus was paid 
 
         every year (exhibit 49, pages 21-24; exhibit 1).  Exhibit F shows 
 
         that claimant had received bonuses during 1981, 1982, 1983, 1984 
 
         and 1985.  The largest was $13,300 which was paid in 1982.  The 
 
         smallest was $2,500 which was paid in 1985.  Claimant did not 
 
         receive any bonus in 1986 or 1987.  According to Jim Sieh, 
 
         claimant would probably have received a quite substantial bonus 
 
         in 1987 if he had still been employed and if the practices of 
 
         former years had been followed.
 
              
 
              On or about June 5, 1987, claimant was working at the gravel 
 
         pit performing mechanical work on a dragline.  He slipped off the 
 
         track and fell approximately three feet to the ground.  Claimant 
 
         described feeling pain in his back.  At lunch time he sought 
 
         treatment from Dr. Anliker without success and then went home and 
 
         lay on ice.  Claimant stated that he tried for several weeks to 
 
         continue working.  As part of his routine he would lie on ice 
 
         before work, at noon and after work, but that he did not get 
 
         better.  He stated that pain started shooting down his legs in a 
 
         manner that had never occurred previously.  Claimant stated that 
 
         he went to Dr. Anliker, then to another chiropractor.  Claimant 
 
         stated that his condition worsened and he then was referred 
 
         through his family physician to orthopaedic surgeon William 
 
         Follows, M.D.  Dr. Follows felt that claimant probably had 
 
         lumbosacral disc herniation (exhibit 23).
 
         
 
              Upon a recommendation from his daughter, Veronica Eaton, 
 
         Tesch entered into treatment from John L. Greene, M.D., an Omaha, 
 
         Nebraska neurosurgeon.  Dr. Greene diagnosed claimant as having a 
 
         herniated disc and on July 24, 1987 a laminectomy was performed. 
 
         The operative report indicates that Dr. Greene found a large, 
 
         soft herniation and removed a large amount of herniated and 
 
         degenerative disc material (exhibits 17 and 18).
 
         
 
              Following recuperation from the surgery, claimant was placed 
 
         into a rehabilitation program under the direction of orthopaedic 
 
         surgeon,J. Michael Donahue, M.D.  Dr. Donahue initially indicated 
 
         that claimant was deconditioned and recommended a rehabilitation 
 
         program.  Claimant initially made some improvement, but his 
 
         participation in the program was compromised by claimant's 
 
         pulmonary problems.  Dr. Donahue and Jean Eichmeier, the 
 
         rehabilitation consultant who was assisting claimant, both 
 
         recommended that claimant obtain treatment for the pulmonary 
 
         condition.  Claimant was then treated by Linda B. Ford, M.D.  Dr. 
 
         Ford found claimant to be allergic to a number of substances and 
 
         under her treatment his pulmonary function improved markedly 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         (exhibit 20).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant returned to the rehabilitation program, but made no 
 
         significant improvement.  Dr. Donahue observed some new symptoms 
 
         when he examined claimant on March 7, 1988.  Despite the 
 
         treatment from Dr. Ford, Dr. Donahue concluded that claimant was 
 
         unable to aggressively pursue the rehabilitation program due to 
 
         his pulmonary problems (exhibits 19, 31, 32 and 33).  On April 
 
         13, 1988, Dr. Donahue reported that claimant had reached maximum 
 
         medical improvement.  He rated claimant as having a 14 percent 
 
         impairment of the body as a whole attributed to the June 4, 1987 
 
         accident.  Dr. Donahue imposed activity restrictions which 
 
         included a 30-pound maximum lifting limit, avoidance of 
 
         repetitive bending or lifting and avoidance of prolonged sitting 
 
         or standing. Claimant stated that Dr. Donahue had recommended 
 
         that he undergo further surgery.  Claimant stated that he was 
 
         doing well in the rehabilitation program until he got into a 
 
         machine that made him bend.  Claimant stated that he did not then 
 
         want more surgery.
 
         
 
              Claimant stated that by the summer of 1988, his condition 
 
         was nearly as bad as it had been prior to the first surgery and 
 
         he requested authorization to see another physician from JoEllen 
 
         Parrott, the rehabilitation consultant who replaced Jean 
 
         Eichmeier in approximately February of 1988.  Authorization was 
 
         obtained for claimant to have an evaluation performed by Robert 
 
         J. Hacker, M.D., an Omaha neurosurgeon.  A CT scan was performed 
 
         which showed only post-operative changes, but a myelogram 
 
         confirmed nerve root entrapment on the right side at L4-5.  Dr. 
 
         Hacker indicated that he thought it was due to degenerative disc 
 
         disease with lumbar spondylosis (exhibit 6, pages 5 and 6).  On 
 
         August 5, 1988, the day following the myelogram, Dr. Hacker 
 
         performed surgery during which it was found that the L5 nerve 
 
         root was distorted by a bulging disc at L4 within the confines of 
 
         the lateral recess which was narrowed by thickening of the medial 
 
         portion of the facet joint (exhibit 8, pages 10 and 11; exhibit 
 
         6, page 7).  Following surgery, claimant initially showed a great 
 
         deal of improvement.  He was then placed into a course of 
 
         physical therapy under the direction of Frank P. LaMarte, M.D.  
 
         Dr. LaMarte felt that claimant was deconditioned and recommended 
 
         a 12-week physical rehabilitation program.  Claimant attended 
 
         physical therapy under the direction of Kenneth D. Van Wyk, 
 
         L.P.T., from September 12, 1988 through October 15, 1988 (exhibit 
 
         46).  Claimant stated that the therapy had seemed to be 
 
         beneficial.  In early 1989, claimant entered physical therapy 
 
         under the direction of Dr. LaMarte.  Claimant stated that the 
 
         program was similar to what Dr. Donahue had provided, that the 
 
         same problems recurred as had previously and that his condition 
 
         worsened (exhibit 12).
 
         
 
              Donald Tesch testified that before the injury which is the 
 
         subject of this action, there was nothing which he could not do. 
 
         He stated that now he is unable to operate a self-propelled lawn 
 
         mower.  He stated that he has tried to take his boat out onto the 
 
         lake, but that when he does he pays for it.  He stated that in 
 
         general, he is okay if he stays down, but that if he does 
 
         anything it exacerbates his symptoms.  Claimant stated that on a 
 
         typical day, he lies down at noon and again at 4:00.  Claimant 
 
         stated that for exercise he rides an exercise bicycle 12 minutes 
 
         each morning.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Tesch stated that he has not looked for work because he 
 
         could not work a full day.  He stated that he used to hire and 
 
         fire people and would not hire someone like himself for anything.  
 
         Tesch stated that the rehabilitation consultants have not 
 
         directed him into any type of job.  He has been awarded Social 
 
         Security disability benefits which provide him $759 per month.
 
         
 
              Claimant has been evaluated by David J. Boarini, M.D., a Des 
 
         Moines neurosurgeon.  Dr. Boarini rated claimant as having a 6-8 
 
         percent permanent impairment, most of which he attributed to 
 
         claimant's degenerative condition, although he felt that the fall 
 
         of June 5, 1987 probably aggravated that condition somewhat 
 
         (exhibit B, pages 16-18).  Dr. Boarini recommended that claimant 
 
         avoid repetitive bending and that he lift no more than 50 pounds 
 
         or 25 pounds repetitively (exhibit B, pages 19 and 20).  When Dr. 
 
         Boarini examined claimant on May 8, 1989, he felt that claimant 
 
         needed no further medical treatment and he expected no change to 
 
         occur in claimant's condition (exhibit B, pages 19, 20 and 29).
 
         
 
              When he performed his physical examination, Dr. Boarini 
 
         found claimant to have normal strength in his legs, normal knee 
 
         and ankle reflexes, a normal straight leg raising test and 
 
         slightly limited range of spinal motion (exhibit B, pages 9-12).  
 
         Dr. Boarini attributed the majority of claimant's symptoms and 
 
         problems to his long-standing degenerative condition rather than 
 
         to the 1987 injury.
 
         
 
              Dr. Hacker, when deposed on May 8, 1989, stated that he had 
 
         initially felt that claimant would be able to return to work 
 
         following the surgery, but that he now sees a prolonged course of 
 
         total disability which may possibly become permanent.  Dr. Hacker 
 
         stated that in view of the deterioration which claimant had 
 
         recently experienced, the impairment rating he had previously 
 
         given would change (exhibit 6, pages 18-20).  Dr. Hacker felt 
 
         that claimant may need a fusion in the future and had not yet 
 
         reached maximum medical improvement (exhibit 6, pages 17 and 18).  
 
         Dr. Hacker reported that claimant's L4 disc herniation problems 
 
         all relate to the fall which occurred in 1987 (exhibit 6, pages 
 
         9-11).
 
         
 
              Claimant was evaluated by H. Randall Woodward, M.D., on May 
 
         16, 1989.  Dr. Woodward reported that claimant's low back pain 
 
         may be due to instability at the L4-5 level either as a result of 
 
         the injury, degenerative changes, surgery or a combination of all 
 
         of those factors.  Dr. Woodward found claimant to be 
 
         neurologically intact (exhibit 4).
 
         
 
              On June 28, 1989, Dr. Woodward reported that claimant has 
 
         been getting relatively good results by treating with medication, 
 
         but that he has not achieved a normal level of activity.  Dr. 
 
         Woodward also stated that surgical stabilization may possibly be 
 
         indicated in the future.  Dr. Woodward assigned claimant a 15 
 
         percent permanent impairment rating and stated that his work 
 
         activity level should be in the light category.  Dr. Woodward 
 
         went on to state that since claimant did not report significant 
 
         problems prior to the June 4, 1987 injury and has had significant 
 
         problems since that date, it was his opinion that the injury of 
 
         June 4, 1987 caused a significant aggravation of a preexisting 
 
         condition (exhibit 5).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Rehabilitation consultant Jean Eichmeier stated that when 
 
         she discontinued work on claimant's case in February of 1988, 
 
         claimant was not capable of working and that vocational placement 
 
         was not then indicated (exhibit 48, pages 35 and 46).
 
         
 
              Vocational consultant JoEllen Parrott stated that it would 
 
         be difficult, though not impossible, to place claimant in a job 
 
         with some employer other than Sieh Farm Drainage Company.
 
         
 
              Bob Sieh stated that there might possibly be work for 
 
         claimant if claimant were physically capable of performing it and 
 
         that part-time work could be a possibility.
 
         
 
              Veronica Eaton, claimant's daughter, is currently a 
 
         paralegal but has previously been a claims manager for Aetna 
 
         Insurance Company where she handled workers' compensation cases.  
 
         Eaton stated that while working in the insurance industry, she 
 
         formed impressions concerning which physicians she would want to 
 
         treat her and her family and that she selected Drs. Greene and 
 
         Hacker for her father.
 
         
 
              Ronald Henningsen, publisher of the Omaha Daily Record, has 
 
         a summer home next door to claimant's at Milford, Iowa.  
 
         Henningsen stated that claimant's condition has deteriorated 
 
         since September of 1987.  He stated that claimant requests 
 
         assistance in performing activities and that he has seen claimant 
 
         lie on the floor.  Henningsen stated that claimant appears to be 
 
         in pain.  He did not know of any gainful employment which 
 
         claimant could perform.
 
         
 
              Claimant's history as given at Nebraska Methodist Hospital 
 
         contains a denial of any prior back problems (exhibit A).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of June 5, 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).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Aggravation of preexisting condition is one form of 
 
         compensable injury.  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 500, 908, 76 
 
         N.W.2d 756, 760-61 (1956).  If the claimant had a preexisting 
 
         condition or disability that is aggravated, accelerated, worsened 
 
         or lighted up so that it results in disability, claimant is 
 
         entitled to recover.  Nicks v. Davenport Produce Co., 254 Iowa 
 
         130, 115 N.W.2d 812, 815 (1962).
 
         
 
              A cause is proximate if it is a substantial factor in 
 
         bringing about the result.  It need not be the only factor. 
 
         Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 
 
         1980).
 
         
 
              Causation is the pivotal issue in this case.  From the 
 
         evidence submitted it is abundantly clear that Donald W. Tesch 
 
         has had a long history of back problems.  He presented as a quite 
 
         stoic individual at hearing.  His employer considered him to be a 
 
         good, dependable employee.  The rehabilitation consultants and 
 
         Dr. Donahue all indicated that claimant had been very cooperative 
 
         and had made a genuine effort to recover.  These factors all 
 
         corroborate the quite credible demeanor which claimant exhibited 
 
         at hearing.  On the other hand, the medical history which 
 
         claimant has given to the various physicians has often omitted 
 
         his years of chiropractic treatments.  It is remarkable to note 
 
         that the record of this case does not contain any reference to 
 
         claimant obtaining treatment, other than chiropractic, for his 
 
         back prior to June 4, 1987.  Some back complaints are noted 
 
         following the 1985 accident, but the records in evidence contain 
 
         no indication of active medical treatment of claimant's back 
 
         following that incident. According to claimant, he had obtained 
 
         chiropractic treatments primarily because they felt good, rather 
 
         than because of any particular severe problem.  The records in 
 
         this case do note leg complaints prior to June of 1987.
 
         
 
              It is found that Donald W. Tesch did have back and leg pain 
 
         prior to the June 5, 1987 accident.  (The undersigned believes 
 
         that the actual date of injury was June 4, 1987, rather than June 
 
         5, 1987 in view of Dr. Anliker's treatment notes, but the 
 
         stipulated injury date will not be disturbed.)  Prior to the 
 
         injury, Donald Tesch had not been subjected to surgery.  No 
 
         physician had recommended any particular activity restrictions.  
 
         He had been fully employed as a heavy equipment operator and 
 
         seldom missed work for his back condition despite the heavy 
 
         nature of his job. Claimant's back condition was of long-standing 
 
         duration, more than 30 years.  It was a chronic problem which had 
 
         occasional exacerbations.  Prior to the incident of June 1987, 
 
         Donald Tesch had always recovered from the exacerbations in a 
 
         relatively short period of time.
 
         
 
              The injury of June 5, 1987 changed the long-standing pattern 
 
         which Donald Tesch had experienced.  The trauma which Tesch 
 
         sustained would not normally be thought of as being particularly 
 
         severe.  For a person with a normal spine, it would not be a 
 
         source of injury.  For a person with a degenerative condition, 
 
         the results could easily be more serious.  After the June 5, 1987 
 
         injury, claimant did not recover with chiropractic treatment.  He 
 
         has undergone two spinal surgeries and three attempts at physical 
 
         rehabilitation, but remains seriously impaired.  The 
 
         chronological order of events which has occurred indicates the 
 
         existence of a causal connection between that June 5, 1987 injury 
 
         and the disability which currently afflicts Donald Tesch as,a 
 
         result of the condition of his back.  Drs. Donahue, Hacker and 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Woodward have all expressed the opinion that the fall of June 5, 
 
         1987 is a cause for claimant's current back complaints.  Dr. 
 
         Woodward characterized it as an aggravation of a preexisting 
 
         condition.  The medical histories, however, upon which those 
 
         three physicians were apparently relying did not contain any 
 
         indication of claimant's long history of chiropractic treatments 
 
         and back problems.  It is also expected, however, that all three 
 
         of those physicians would have recognized the degenerative 
 
         condition in claimant's spine. Drs. Hacker and Woodward clearly 
 
         referred to it in their notes and records.  Claimant's failure to 
 
         relate his history of chiropractic treatment and prior back 
 
         difficulties is not perceived by the undersigned to have 
 
         concealed his degenerative condition from the doctors who have 
 
         treated him.  They may not, however, have been aware of the 
 
         symptoms which claimant had experienced prior to June of 1987.  
 
         When it is considered that the symptoms had not generally been 
 
         disabling prior to June of 1987, it is determined that claimant's 
 
         failure to relate those symptoms to the physicians does not 
 
         render their opinions regarding causation invalid.  The opinion 
 
         expressed by Dr. Boarini regarding causation is not inconsistent 
 
         with that expressed by the other physicians.  Clearly, claimant's 
 
         degenerative condition is the primary factor responsible for his 
 
         current state of disability.  If that condition did not exist, 
 
         the fall of approximately three feet from the crane in June of 
 
         1987 would probably not have produced any injury.  In view of the 
 
         preexisting condition, however, the fall was quite injurious.  It 
 
         is therefore determined that the fall of June 4 or June 5, 1987 
 
         is a proximate cause of claimant's current back condition.  It is 
 
         not the major cause, but it is the triggering event which caused 
 
         his previously tolerable degenerative condition to become so 
 
         intolerable as to require him to cease work, seek treatment from 
 
         medical doctors and undergo surgery.  The injury is clearly an 
 
         aggravation of a preexisting condition.  Since that event, he has 
 
         never been able to regain sufficient physical capacity to enable 
 
         him to resume any work which is even marginally similar to that 
 
         which he has performed throughout his working life.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co. 219 Iowa 587, 
 
         593, 258 N.W.2d 899, 902 (1935) as follows:  "It is therefore 
 
         plain that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Industrial disability or loss of earning capacity is a 
 
         concept that is quite similar to impairment of earning capacity, 
 
         an element of damage in a tort case.  Impairment of physical 
 
         capacity creates an inference of lessened earning capacity.  The 
 
         basis element to be determined, however, is the reduction in 
 
         value of the general earning capacity of the person, rather than 
 
         the loss of wages or earnings in a specific occupation.  
 
         Post-injury earnings create a presumption of earning capacity.  
 
         The earnings are not synonymous with earning capacity and the 
 
         presumption may be rebutted by evidence showing the earnings to 
 
         be an unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
         (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
         516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
         34th Biennial Report, 218 (1979); 2 Larson Workmen's Compensation 
 
         Law, sections 57.21 and 57.31.
 
         
 
              Donald Tesch is 64 years of age.  Even if it were not for 
 
         his June 1987 injury, his age and degenerative condition would 
 
         have likely led to the end of his active work life at some point 
 
         in the not too distant future.  Retirement exists because the 
 
         human body will eventually wear out through normal wear and tear, 
 
         even without any particular identifiable trauma.
 
         
 
              At this point in time, Donald Tesch does not appear to have 
 
         sufficient residual earning capacity to be self-supporting.  From 
 
         an industrial standpoint, his age, education and work experience 
 
         does not give him access to any known jobs.  The fact that his 
 
         only realistic hope of employment would be an accommodated 
 
         position with his former employer clearly shows that he is 
 
         severely disabled.  Claimant has not sought work and therefore he 
 
         cannot rely on the odd-lot doctrine in view of the precedent 
 
         which has been established by this agency.  Brown v. Nissen 
 
         Corp., file number 837608 (App. Decn. November 30, 1989; Emshoff 
 
         v. Petroleum Transp. Servs., file number 753723 (App. Decn. March 
 
         31, 1987).  In this case, however, it is not necessary to rely on 
 
         the burden of proof shifting mechanism of the odd-lot doctrine.  
 
         When all factors considered in evaluating industrial disability 
 
         are taken into account, it is determined that Donald W. Tesch 
 
         does not have sufficient earning capacity to earn a living for 
 
         himself.  His disability is therefore total disability.  Guyton 
 
         v. Irving Jensen Co., 373 N.W.2d 101, 103 (Iowa 1985); McSpadden 
 
         v. Big Ben Coal Co., 282 N.W.2d 181, 182 (Iowa 1980); Diederich 
 
         v. Tri-City R., 219 Iowa 587, 594, 258 N.W. 899, 902 (1935).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              In view of Tesch's preexisting condition, it is abundantly 
 
         clear that he had physical impairment and disability prior to 
 
         June of 1987.  The record contains no ratings for that 
 
         impairment, however.  When disability is to be apportioned, the 
 
         burden of showing the extent of the preexisting disability rests 
 
         upon the party who contends that there was preexisting 
 
         disability, in this case defendants.  Varied Enterprises. Inc. v. 
 
         Sumner, 353 N.W.2d 407 (Iowa 1984); Becker v. D & E Distributing 
 
         Co., 247 N.W.2d 727, 731 (Iowa 1976); 2A Larson Workmen's 
 
         Compensation Law, section 59.22.
 
         
 
              In this case there is evidence, though not absolutely 
 
         compelling, that Donald Tesch had some degree of preexisting 
 
         industrial disability prior to June 5, 1987.  Tesch is now 
 
         permanently and totally disabled.  Where total disability 
 
         results, there is no practical means of apportioning out whatever 
 
         degree of disability preexisted.  Workers' compensation permanent 
 
         total disability benefits are paid for life because the 
 
         disability exists for life.  Workers' compensation benefits are a 
 
         statutorily created alternative to tort damages.  It would leave 
 
         a glaring gap in the entire benefit structure if a totally 
 
         disabled person were required to wait for permanent total 
 
         disability compensation weekly benefits to commence in order to 
 
         offset whatever amount of partial disability had preexisted the 
 
         current injury.  Permanent total disability compensation is paid 
 
         because the person is unable to earn sufficient wages to be 
 
         self-supporting.  Any construction of the statutes which imposed 
 
         a waiting period or offset would result in a period of time when 
 
         the injured worker would be destitute absent assistance from 
 
         public welfare programs or beneficent parties.  The undersigned 
 
         concludes that the better construction of the statute is the one 
 
         which provides compensation for the periods of time it is needed.  
 
         In this case, that is the entire period of the disability.
 
         
 
              In view of the fact that an award of permanent total 
 
         disability is made in this case, there is no need to determine a 
 
         specific healing period or periods.
 
         
 
              The record of this case shows that claimant was paid $750.00 
 
         bimonthly.  His pay also normally included an annual benefit 
 
         which has been referred to as a "bonus."  The bonus does not 
 
         appear to have been irregular in the sense that the bonus was an 
 
         annual expected event, even though the amount of the bonus was 
 
         entirely discretionary with the owner of the business.  In this 
 
         case, it could reasonably be asserted that claimant's pay was 
 
         computed on a two-level system.  One part was the bimonthly 
 
         salary of $750.00. The second part was on a yearly pay period 
 
         basis which was somewhat in the nature of profit sharing.  In 
 
         this case, it does not matter, however, because claimant did not 
 
         receive any bonus in 1986, the last full year that he worked.  
 
         While others did receive a bonus for 1987, there is nothing in 
 
         the record which would have required that claimant be paid a 
 
         bonus even if he had worked all of 1987.  It was entirely 
 
         discretionary.  For these reasons, claimant's rate of 
 
         compensation is based only upon his $750.00 bimonthly salary.  
 
         Under Code section 85.36(3) or (4), claimant's gross weekly wage 
 
         was $346.15.  When applied to the 1986 benefit schedule, 
 
         claimant, being married with two exemptions, would be entitled to 
 
         a rate of compensation which is $218.61 per week.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  The injury which claimant sustained on June 5, 1987 when 
 
         he fell is a substantial factor in producing the disability which 
 
         currently afflicts him as a result of the condition of his back.
 
         
 
              2.  The injury was an aggravation of a preexisting 
 
         degenerative condition.
 
         
 
              3.  The-preexisting condition is the major factor in 
 
         producing the current disability, but the fall triggered the 
 
         onset of the disability.
 
         
 
              4.  Donald Tesch is a credible witness with regard to his 
 
         description of his current symptoms and complaints, his current 
 
         abilities and the effect that the preexisting condition had upon 
 
         him prior to June of 1987.
 
         
 
              5.  Donald W. Tesch does not have sufficient residual 
 
         earning capacity in order to earn a living to support himself due 
 
         to the condition of his back.
 
         
 
              6.  Claimant's gross weekly earnings are $346.15.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
              
 
              2.  The injury Donald Tesch sustained on or about June 5, 
 
         1987 is a proximate cause of the disability which currently 
 
         afflicts him in view of the condition of his back.
 
         
 
              3.  Donald W. Tesch is permanently totally disabled within 
 
         the provisions of Iowa code section 85.34(3).
 
         
 
              4.  Claimant's rate of compensation is $218.61 per week.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay Donald W. Tesch 
 
         compensation for permanent total disability at the rate of two 
 
         hundred eighteen and 61/100 dollars ($218.61) per week payable 
 
         commencing June 27, 1987.  Defendants are entitled to credit for 
 
         all weekly compensation previously paid and shall pay all 
 
         compensation which is accrued but unpaid to the date of this 
 
         decision in a lump sum together with interest pursuant to Iowa 
 
         Code section 85.30.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         action pursuant to Division of Industrial Services Rule 343-4.33 
 
         as follows:
 
         
 
              Cassel, Inc. deposition of Jim Sieh           $186.00
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              Cassel, Inc. deposition of Jean Eichmeier      328.50
 
              Blair & Assoc. - deposition of Dr. Hacker      130.83
 
              Dr. Woodward - medical report                   45.00
 
              Dr. Hacker - expert witness fee                150.00
 
              Filing fee                                      65.00
 
              Total                                         $840.33
 
         
 
              IT IS FURTHER ORDERED that defendants file claim activity 
 
         reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
              
 
              Signed and filed this 27th day of March, 1990.
 
         
 
         
 
         
 
                                            
 
                                            
 
                                            
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Charles T. Patterson
 
         Attorney at Law
 
         200 Home Federal Building
 
         P.O. Box 3086
 
         Sioux City, Iowa  51102
 
         
 
         Mr. Frank T. Harrison
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Avenue.
 
         Des Moines, Iowa  50312
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1108.50, 1402.30, 1403
 
                                            1404, 1702, 1804, 1806
 
                                            2206, 3001, 4100
 
                                            Filed March 27, 1990
 
                                            MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DONALD W. TESCH,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                    File No. 860672
 
         SIEH FARM DRAINAGE COMPANY,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         EMPLOYERS MUTUAL CASUALTY
 
         COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1108.40, 1402.30, 2206
 
         
 
              Causal connection found to exist even though the preexisting 
 
         condition was the major cause of the current state of disability.
 
         
 
         1403, 1404, 1702, 1804, 1806, 4100
 
         
 
              Claimant awarded permanent total disability.  It was held 
 
         that preexisting disability cannot be apportioned consistent with 
 
         the intent of the statute where total disability is the end 
 
         result.
 
         
 
         3001
 
         
 
              Where a major part of the income of the employee had 
 
         typically been an annual bonus of several thousand, there was no 
 
         consideration of the bonus in computing the rate of compensation 
 
         since payment of a bonus was entirely discretionary with the 
 
         employer and no bonus had been paid for the year preceding the 
 
         year in which the injury occurred.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1801; 5-2500; 5-1803
 
                      Filed October 3, 1991
 
                      BYRON K. ORTON
 
                      MAM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            CRAIG D. REMSBURG,	      :
 
                      		      :
 
                 Claimant,            :
 
		                      :
 
		            vs.       :
 
                		      :      File No. 860994
 
            AMERICAN NATIONAL CAN CORP.,:
 
		                      :        A P P E A L
 
                 Employer,	      :
 
		                      :      D E C I S I O N
 
		            and       :
 
                		      :
 
            GALLAGHER BASSETT SERVICES,:
 
                      		      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            
 
            5-1801; 5-2500; 5-1803
 
            Claimant proved entitlement to temporary total disability 
 
            benefits and medical benefits.  Claimant failed to prove 
 
            entitlement to permanent partial disability benefits.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                             :
 
            CRAIG D. REMSBURG,               :
 
                                             :
 
                 Claimant,                   :
 
                                             :
 
            vs.                              :
 
                                             :        File No. 860994
 
            AMERICAN NATIONAL CAN CORP.,     :
 
                                             :     A R B I T R A T I O N
 
                 Employer,                   :
 
                                             :        D E C I S I O N
 
            and                              :
 
                                             :
 
            GALLAGHER BASSETT SERVICES, INC.,:
 
                                             :
 
                 Insurance Carrier,          :
 
                 Defendants.                 :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Craig D. Remsburg, against his employer, 
 
            American National Can Corporation, and its insurance 
 
            carrier, Gallagher Bassett Services, Inc., defendants.  The 
 
            case was heard on February 21, 1990, in Des Moines, Iowa at 
 
            the office of the industrial commissioner.  The record 
 
            consists of the testimony of claimant and the testimony of 
 
            Marvin Huzen, program manager.  Additionally, the record 
 
            consists of claimant's exhibits 1-32 and defendants' 
 
            exhibits A-F.
 
            
 
                                      issues
 
            
 
                 The sole issues to be determined are:  1) whether 
 
            claimant received an injury which arose out of and in the 
 
            course of employment; 2) whether there is a causal 
 
            relationship between the alleged injury and the disability; 
 
            3) whether claimant is entitled to temporary 
 
            disability/healing period benefits or permanent partial 
 
            disability benefits; 4) whether claimant is entitled to 
 
            medical benefits under section 85.27; and 5) whether 
 
            claimant is entitled to penalty benefits under section 
 
            86.13.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant was born on May 11, 1963.  He commenced his 
 
            employment with defendant-employer on June 8, 1981.  In 
 
            November of 1987, claimant was a press helper.  His duties 
 
            included filling tanks of solvents, keeping press rollers 
 
            clean, filling press decks with solvents, and removing ink.  
 
            During this time period, claimant worked 8 to 12 hours per 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            day, 6 to 7 days per week.
 
            
 
                 Claimant wore latex gloves during work.  The gloves 
 
            extended to the middle of his forearm.  He also wore safety 
 
            glasses but they were without splash guards.  On a daily 
 
            basis, claimant came into contact with various solvents.  
 
            Material Safety Data Sheets were available on site.
 
            
 
                 On November 5, 1987, claimant was told to clean the 
 
            parts washer.  He had never performed this task before.  The 
 
            washer was made of cast iron and was 12 feet x 4 feet by 3 
 
            feet deep.  It was designed to hold solvents for cleaning 
 
            anything greasy, inky, and thick substances which could not 
 
            be cleaned by hand.  Often sledge would build up in the 
 
            bottom of the washer.  Claimant described the sludge as ink, 
 
            dirty solvents, and other materials.  He reported that while 
 
            he was cleaning, he experienced a bad taste in his mouth.  
 
            The company nurse removed claimant from the parts washer 
 
            room, after he appeared light headed.
 
            
 
                 Claimant contacted James Blessman, M.D.  Claimant 
 
            indicated he had been nauseated, he had a headache but he 
 
            was not dizzy.  Dr. Blessman ordered oxygen for 30 minutes.  
 
            He diagnosed claimant's condition as "acute chemical 
 
            exposure, hydrocarbons, and solvents."  The medical exam was 
 
            essentially unremarkable.
 
            
 
                 Claimant returned to work on the following day.  Later, 
 
            he reported to Dr. Blessman that his symptoms increased when 
 
            he returned to the workplace.  Claimant was again removed 
 
            from the work setting.  He returned to work on December 3, 
 
            1987.  He worked approximately one week.
 
            
 
                 A report was issued by Kevin F. Smith, M.D., on January 
 
            4, 1988.  Dr. Smith opined that:
 
            
 
                 In direct response to your letter, it is my 
 
                 impression that this patient had acute organic 
 
                 solvent exposure and his continued subjective 
 
                 complaints have not been verified by objective 
 
                 findings.  His medical work-up to date has been 
 
                 unremarkable.  In regard to the respirator 
 
                 prescribed for the patient, it was adequate to fil
 
                 ter out organic solvents.  In fact, with the fit 
 
                 test the patient was not able to identify organic 
 
                 solvents as well as exposure to ammonia.
 
            
 
                 Also, I am under the impression that there is no 
 
                 apparent causal relationship between the patient's 
 
                 ongoing subjective complaints and his exposure on 
 
                 ll-5-87, and the patient does not have any 
 
                 permanent disability from his acute exposure.  I 
 
                 feel that he reached his maximum medical 
 
                 recuperation on December 3, 1987 and at that time 
 
                 was returned to regular duty.  Patient started 
 
                 work without any re aggravation [sic] or 
 
                 symptomatic complaints.
 
            
 
                 On January 11, 1988 I talked with the company.  
 
                 The patient had some complaints regarding exposure 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 to starch as if that would re initiate [sic] his 
 
                 symptomatic complaints and I do not believe there 
 
                 is an apparent association between his starch 
 
                 exposure and his symptomatic complaints.
 
            
 
                 My recommendation for this patient is that he can 
 
                 return to regular work without any restriction and 
 
                 if necessary, a respirator with organic solvent 
 
                 canisters would be made available to him.
 
            
 
                 Dr. Blessman and Dr. Smith referred claimant to Mark E. 
 
            Thoman, M.D., a board certified physician in clinical 
 
            toxicology.  Dr. Thoman saw claimant on more than 14 
 
            occasions.  He diagnosed claimant's condition in his report 
 
            of January 20, 1988.  The physician wrote:
 
            
 
                 This letter will confirm that I have completed my 
 
                 initial review of the information regarding Craig 
 
                 Remsberg [sic]
 
            
 
                 After carefully reviewing Craig's medical records 
 
                 and the toxicological literature available, it is 
 
                 my opinion as a board-certified clinical 
 
                 toxicologist, and to a reasonable degree of 
 
                 medical probability, that Craig Remsberg [sic] 
 
                 suffers from a toxic exposure to industrial 
 
                 solvents and petroleum products while employed at 
 
                 American National Can.
 
            
 
                 Attached please find copies of my findings during 
 
                 the examination and subsequent laboratory work.  
 
                 These findings enable us to rule out any other 
 
                 organic cause for his symptomatology.
 
            
 
                 Craig has attempted to return to work without much 
 
                 success.  If he is able to return to work, it is 
 
                 my sincere recommendation that he do so for one to 
 
                 two hour periods per day and gradually increase 
 
                 the time as he is able to tolerate it.  It is 
 
                 imperative that his environment be as free of 
 
                 industrial solvents and petroleum products or 
 
                 by-products as possible to avoid further 
 
                 exacerbation of his present signs & symptoms.
 
            
 
                 It is also important that Craig carefully monitor 
 
                 his health status throughout the future for any 
 
                 delayed or cummulative [sic] effects of the 
 
                 exposure.  He will be more sensitive to all 
 
                 chemicals and will most likely be more susceptible 
 
                 to infection.
 
            
 
                 A logical component of any toxic exposure is Post 
 
                 Traumatic Stress Syndrome.  Craig may need 
 
                 emotional support such as counselling to help him 
 
                 cope with the necessary adjustments in his 
 
                 lifestyle.
 
            
 
                 Later, Dr. Thoman opined:
 
            
 
                 It is my opinion as a board-certified clinical 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 toxicologist, and to a reasonable degree of 
 
                 medical probability, after carefully reviewing 
 
                 Craig Remsburg's medical records and the 
 
                 toxicological literature; that he suffers from a 
 
                 toxic exposure to industrial solvents and 
 
                 petroleum products while employed at American 
 
                 National Can.
 
            
 
                 Copies of my findings during his physical exam and 
 
                 laboratory work are enclosed.  These findings 
 
                 enable us to rule out any other organic cause for 
 
                 his symptomatology.
 
            
 
                 Craig has attempted to return to work only to 
 
                 experience a return of his symptomatology.  It was 
 
                 our recommendation that he return to work for 
 
                 short periods of time on a trial basis.  He has 
 
                 been unable to return to work without experiencing 
 
                 symptoms.  It is imperative that his environment 
 
                 be as free of industrial solvents and petroleum 
 
                 products as possible to avoid further exacerbation 
 
                 of his present signs and symptoms.
 
            
 
                 It is important that Craig's health status be 
 
                 carefully monitored in the future for any delayed 
 
                 or cumulative effects of the exposure.  He will be 
 
                 more sensitive to all chemicals and will most 
 
                 likely be more susceptible to infection.
 
            
 
                 Claimant was released to return to work in the Saran 
 
            Department.  Restrictions were imposed by 
 
            defendant-employer.  They were outlined as follows:
 
            
 
                 Craig Remsburg Clock #2008
 
            
 
                 For return to work Sunday, February 14, 1988- C 
 
                 Shift (11:00 PM - 7:00 AM):
 
            
 
                 DEPARTMENT: Saran
 
            
 
                 JOB:  Utility Person
 
            
 
                 RESTRICTIONS:  You will be restricted to the Saran                         
 
                 Department until further notice.  Due to its 
 
                 proximity to the east end of the building where 
 
                 the employee entrance is located, you will not 
 
                 have need (nor be allowed) to enter any other 
 
                 parts of the plant.  The Saran Department has 
 
                 restrooms and a lunchroom with microwave oven.  
 
                 You need to either bring your own beverage, or 
 
                 plan to have same purchased by a coworker from the 
 
                 main lunchroom for you.
 
                           If you wish to visit the main 
 
            office area while you are at work, you need to 
 
            secure your supervisor's permission to leave your 
 
            department (a normal requirement anyway) and enter 
 
            from outside the building through the office front 
 
            door.
 
            
 
                 All of the above restrictions are imposed for your 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 protection and accomodation [sic] at this time to 
 
                 keep you from the discomfort of fumes and/or odors 
 
                 generated by the Press Department.  You will not 
 
                 be required to wear a respirator in the Saran 
 
                 Department.
 
            
 
                 Claimant worked eight hours on February 16, 1988.  That 
 
            was the last day he worked for defendant-employer.  Claimant 
 
            did not work again until December of 1988 when he began 
 
            working in the construction field for his father.
 
            
 
                 Claimant was examined and evaluated by several other 
 
            experts.
 
            
 
                 Todd F. Hines, Ph.D., P.C., performed a psychological 
 
            evaluation on March 13, 1989.  Dr. Hines wrote in his report 
 
            of March 17, 1989:
 
            
 
                 The patient describes a work-related exposure to 
 
                 toxic chemicals which occurred in November of 
 
                 1987.  Although he reports multiple efforts to 
 
                 return to work in the interim, he indicates that 
 
                 he has essentially been unable to achieve a 
 
                 successful return to the work place [sic] and he 
 
                 states that he has no idea of what kind of work he 
 
                 could do or whether he will be disabled for the 
 
                 rest of his life.  Mr. Remsburg complains of 
 
                 headache, stomach ache, nausea, dizziness and 
 
                 fatigue which arise with his exposure to many 
 
                 different sources of fumes.  He suggests that he 
 
                 cannot tolerate heights because of concern that he 
 
                 might lose consciousness.  He denies all history 
 
                 of similar symptoms prior to 1987, with the 
 
                 exception of juvenile asthma which resolved early 
 
                 in his life.  He indicates that he can be symptom 
 
                 free for long periods in the absence of exposure 
 
                 to specific fumes.  He reports occasional sleep 
 
                 disturbance with no clear causation, fluctuations 
 
                 of appetite with a weight loss presently giving 
 
                 way to weight gain and some changes in sexual 
 
                 performance.  He describes cognitive changes in 
 
                 concentration and memory.  He denies depression, 
 
                 anxiety and all other forms of emotional disrup
 
                 tion.  He denies all other sources of stress in 
 
                 his life.  He indicates that he saw a counselor 
 
                 briefly in 1988 for post-traumatic stress.
 
            
 
                 The evaluation data reflect a clinically 
 
                 significant level of depression, along with a 
 
                 modicum of anxiety and a strong sense of 
 
                 alienation.  Emotional responses tend to be 
 
                 labile, rising and falling with both intensity and 
 
                 rapidity.  There is a core of anger which most 
 
                 likely serves to take some of the edge off the 
 
                 intropunitive depressive reactions by allowing the 
 
                 feelings to be externalized and directed toward 
 
                 others.  However, self esteem and self confidence 
 
                 appear to be significantly low but sometimes 
 
                 masked by a patina of bravado.  There may well be 
 
                 unmet dependency needs which undercut effective 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 problem solving and the initiation of autonomous 
 
                 behaviors.  Coping skills appear generally weak.  
 
                 Denial and repression are utilized as primary 
 
                 emotional defenses.  There is a strong focus upon 
 
                 somatic functioning and it is quite possible that 
 
                 physical symptoms are caused or aggravated by the 
 
                 discharge of emotional turmoil through somatic 
 
                 anomaly.  There is no evidence of malingering or 
 
                 of the conscious manipulation of symptom 
 
                 presentation but elements of secondary gain could 
 
                 be reinforcing the continuing problems.
 
            
 
                 It is my recommendation that a more complete 
 
                 psychological study be done and that the 
 
                 possibility of psychotherapeutic intervention be 
 
                 considered.
 
            
 
                 David D. Sampel, Ph.D., conducted a psychological 
 
            evaluation on August 29, 1988.  The psychologist determined:
 
            
 
                 Memory Test:
 
            
 
                 Craig was given the Wechsler Memory Scale, Form I.  
 
                 This is a series of seven different tests designed 
 
                 to assess different aspects of memory.  Craig had 
 
                 a memory quotient of 116.  This would indicate 
 
                 that he is in the high average range on the 
 
                 Wechsler Memory Scale, Form I.  On the subtest 
 
                 scales he was average or above average in all 
 
                 tests except digit forward.  In this particular 
 
                 test he was slightly below average.  The
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            results of this test would indicate that Craig's 
 
            memory functioning appears to be quite good at 
 
            this time.
 
            
 
                 CONCLUSIONS:
 
            
 
                 Craig is functioning in the average range of 
 
                 intelligence on the WAIS-R.  He is functioning in 
 
                 the high average range on the Wechsler Memory 
 
                 Scale, Form I.  Craig said he has had some 
 
                 problems with toxic overdose and has problems with 
 
                 getting sick and having stomach aches.  He also 
 
                 said he gets tired easily.
 
            
 
                 If he were to be awarded benefits, he would be 
 
                 able to manage these benefits.  From a 
 
                 psychological perspective it would appear as 
 
                 though Craig is capable of doing some sort of 
 
                 routine repetitive task.
 
            
 
                 Additionally, claimant was examined by Martin R. 
 
            Aronow, D.O., a specialist in cardiology and internal 
 
            medicine.  His examination was negative for evidence of 
 
            myocardial ischemia.
 
            
 
                 Greg Hicklin, M.D., a specialist in pulmonary disease, 
 
            disagreed with the opinions of Dr. Thoman relative to 
 
            claimant's condition.  Dr. Hicklin, in his report of April 
 
            5, 1989, opined:
 
            
 
                 I believe that Craig Remsburg is a basically 
 
                 healthy young man.  He has mild bronchial asthma 
 
                 which is asymptomatic and dates back to childhood.  
 
                 He is not currently impaired or limited in any way 
 
                 on a medical basis.  He should be able to return 
 
                 to any job, including [sic]
 
            
 
                 The event of November 1987 has caused Mr. Remsburg 
 
                 a great amount of unnecessary worrying and 
 
                 concern.  I believe the worrying, concern and 
 
                 rumination about his problems has led to a great 
 
                 deal of fear and anxiety over odors which he 
 
                 smells and this in turn results in the vague 
 
                 symptoms of headache and stomach pain.  I do not 
 
                 feel the toxic fumes or any fumes have caused this 
 
                 problem but rather his over concern about his 
 
                 perceived condition.
 
            
 
                 I certainly do not see any limitation now and feel 
 
                 that he may return to work.
 
            
 
                 In his report of January 18, 1990, Dr. Hicklin further 
 
            opined:
 
            
 
                 I have read a letter from Dr. Mark Thoman 
 
                 concerning Mr. Craig Remsburg.  I disagree with 
 
                 Dr. Thoman [sic] conclusions, specifically in the 
 
                 following areas:
 
            
 
                 1)  I see no evidence of a chemically induced                
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 alteration in Mr. Remsbuerg's [sic] immune system.      
 
                 He has not suffered from increased infections or        
 
                 other disorders contributable to alterations in 
 
                 his   immune system.
 
            
 
                 2)  I do not feel that a change in climate would             
 
                 decrease Mr. Remsburg's susceptibility to               
 
                 infections nor do I feel that he is limited in his      
 
                 ability to work in outside ambient temperatures.             
 
                 There is no reason to believe that decreases in         
 
                 ambient temperatures would make Mr. Remsburg more            
 
                 susceptible to breathing problems or respiratory        
 
                 tract infections.
 
            
 
                 In reviewing the references from Dr. Thoman in the 
 
                 book, Toxicology, by Klaassen, Amdur, and Doull; I 
 
                 see no references to TCE, initiating abnormalities 
 
                 in the immune system.
 
            
 
                 In summary, I believe that Mr. Remsburg could have 
 
                 returned to work after seeing Dr. Smith following 
 
                 his initial exposure.  I also believe that Mr. 
 
                 Remsburg is not now nor ever has been disabled and 
 
                 capable of working in Iowa at any job.
 
            
 
                 Claimant worked for Dougherty Construction for 2 1/2 to 
 
            3 months starting in December of 1988.  He was able to 
 
            perform his job duties.  He also worked for S & M Sanding 
 
            for 5-6 months but he voluntarily terminated his position 
 
            because of dust.  At the time of the hearing, claimant was 
 
            unemployed.  However, defendant-employer was ready, willing 
 
            and able to return claimant to work at its plant.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on November 5, 
 
            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 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63 (1955).
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 
 
            128 (1967). 
 
            
 
                 The supreme court of Iowa in Almquist v. Shenandoah 
 
            Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) 
 
            discussed the definition of personal injury in workers' 
 
            compensation cases as follows:
 
            
 
                 
 
            
 
                 While a personal injury does not include an occupa
 
                 tional 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 November 5, 
 
            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 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 The opinions of experts need not be couched in 
 
            definite, positive or unequivocal language.  Sondag v. 
 
            Ferris Hardward, 220 N.W.2d 903 (Iowa 1974).  An opinion of 
 
            an expert based upon an incomplete history is not binding 
 
            upon the commissioner, but must be weighed together with the 
 
            other disclosed facts and circumstances.  Bodish, 257 Iowa 
 
            516, 133 N.W.2d 867 (1965).  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  Burt, 247 Iowa 691, 73 N.W.2d 732 (1955).  In 
 
            regard to medical testimony, the commissioner is required to 
 
            state the reasons on which testimony is accepted or 
 
            rejected.  Sondag, 220 N.W.2d 903 (1974).
 
            
 
                 The requisite causal connection must be found even in 
 
            cases involving chemical exposures.  Dickenson v. John Deere 
 
            Product Engineering, 2 Ind. Comm. Decisions 316 (1984), 
 
            Bogge v. Wilson Foods, 2 Ind. Comm. Decisions 441 (1984).
 
            
 
                 In the case at hand, there is absolutely no question 
 
            that an incident occurred while claimant was working on 
 
            November 5, 1987.  Claimant was performing his assigned 
 
            duties in the parts washing room.  He became lightheaded, 
 
            nauseated and confused.  Claimant was not wearing a 
 
            respirator and was eventually removed from the work site.  
 
            The company nurse rendered first aid, including oxygen.  
 
            Claimant was sent by taxi cab to Dr. Blessman, the company 
 
            doctor.  Chemical screening and CBC were done.  The results 
 
            were normal.
 
            
 
                 Claimant was sent home.  He was off work for a period 
 
            of time.  Further monitoring was performed.  The monitoring 
 
            included repeated blood tests, a pulmonary function test, 
 
            EKG, chest x-ray and treadmill test.  The tests were 
 
            unremarkable.  Claimant was in the normal range.  No 
 
            objective evidence demonstrated exposure to hazardous 
 
            materials from the workplace.
 
            
 
                 In the case before this division, claimant failed to 
 
            prove that his alleged condition was causally related to the 
 
            incident on November 5, 1987.  Claimant testified he was 
 
            removing sludge from the parts washer on the day in 
 
            question.  The sludge components were not identified.  While 
 
            Material Safety Data Sheets were admitted as evidence, there 
 
            was no evidence that any of the chemical substances listed 
 
            on the MSDS' were present in the sludge on November 5, 1987.  
 
            No sample results were introduced at hearing.  Nor was any 
 
            testimony elicited from any person as to the chemical 
 
            composition of the sludge.  At best, there was the testimony 
 
            of claimant that the washer contained, "inks, dirty solvents 
 
            and whatever else was washed there."  Even Dr. Thoman, 
 
            claimant's physician, testified in his deposition that he 
 
            did not know how much of each chemical claimant was exposed 
 
            to, or the duration of that exposure.  Furthermore, 
 
            claimant's chemical screening and CBC revealed normal 
 
            testing results.  The screenings do not indicate exposure to 
 
            hazardous chemicals.
 
            
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
                 As a consequence, this deputy is unable to determine 
 
            that the sludge contained any harmful chemicals or that the 
 
            chemicals, if present on November 5, 1987, caused claimant's 
 
            alleged condition.  The only evidence presented was the 
 
            subjective complaints of claimant.  No other test results 
 
            supported claimant's allegations.
 
            
 
                 THEREFORE, it is the decision of the undersigned that 
 
            claimant has failed to meet his burden of proof that he was 
 
            injured or that his alleged condition was the result of the 
 
            incident on November 5, 1987.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant takes nothing further from these proceedings.
 
            
 
                 Each party shall pay its own costs pursuant to rule 343 
 
            IAC 4.33.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of January, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Stephen D. Lombardi
 
            Attorney at Law
 
            2190 NW 82nd
 
            Des Moines  IA  50325
 
            
 
            Mr. E. J. Kelly
 
            Mr. Jeff M. Margolin
 
            Attorneys at Law
 
            Terrace Center  STE 111
 
            2700 Grand Ave
 
            Des Moines  IA  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1108.30; 2205
 
                           Filed January 18, 1991
 
                           MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                             :
 
            CRAIG D. REMSBURG,               :
 
                                             :
 
                 Claimant,                   :
 
                                             :
 
            vs.                              :
 
                                             :        File No. 860994
 
            AMERICAN NATIONAL CAN CORP.,     :
 
                                             :     A R B I T R A T I O N
 
                 Employer,                   :
 
                                             :        D E C I S I O N
 
            and                              :
 
                                             :
 
            GALLAGHER BASSETT SERVICES, INC.,:
 
                                             :
 
                 Insurance Carrier,          :
 
                 Defendants.                 :
 
            ___________________________________________________________
 
            
 
            
 
            1108.30; 2205
 
            Claimant failed to causally relate his alleged condition to 
 
            an incident which occurred on November 5, 1987.  Claimant 
 
            was performing his assigned duties in the parts washing 
 
            room.  He became lightheaded, nauseated, and confused.  He 
 
            was not wearing a respirator and was eventually removed from 
 
            the work site.  All tests results were normal.  No objective 
 
            evidence demonstrated any exposure to hazardous chemicals.
 
            Claimant testified there was sludge in the parts washer.  
 
            The sludge components were not identified.  While MSDS were 
 
            admitted as evidence, there was no evidence that the 
 
            chemical substances tested on the MSDS were present in the 
 
            sludge.  Nor was any testimony elicited as to the chemical 
 
            composition of the sludge.  At best, claimant testified 
 
            there were present "inks, dirty solvents and whatever else."
 
            
 
 
         
 
         EWING V. IOWA POWER & LIGHT
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         ?INEZ EWING,                   :
 
                                       :
 
              Claimant,                :       File No. 861067
 
                                       :
 
         vs.                           :    A R B I T R A T I O N
 
                                       :
 
         ?IOWA POWER & LIGHT COMPANY,   :       D E C I S I O N
 
                                       :
 
              Employer,                :
 
              Self-Insured,            :
 
              Defendant.               :
 
         ___________________________________________________________
 
         
 
              On July 11, 1989, Inez Ewing, (claimant) filed a petition 
 
         for arbitration as a result of an injury to claimant's back 
 
         occurring on July 13, 1987.  Iowa Power and Light Company (Iowa 
 
         Power or defendant) was identified as employer and is 
 
         self-insured.  On August 15, 1991, these matters came on for 
 
         hearing in Des Moines, Iowa.  The parties appeared as follows:  
 
         the claimant in person and by her counsel Fredd Haas of Des 
 
         Moines, Iowa and Iowa Power by its counsel William L. Dawe of Des 
 
         Moines, Iowa.  
 
              The record in this proceeding consisted of the following:
 
              1.  The live testimony of the claimant, Douglas Ewing, and 
 
         Patricia Couch-Lynch.  
 
              2.  Joint exhibits 1-23a and 24-35.
 
              3.  Claimant's exhibits A and B.
 
         
 
         stipulations
 
         
 
              The parties stipulated to the following matters at the time 
 
         of the hearing:
 
              a.  An employer-employee relationship existed between 
 
         claimant and employer at the time of the alleged injury.
 
              b.  The claimant sustained an injury on July 13, 1987, which 
 
         arose out of and in the course of employment.
 
              c.  The time off work is stipulated to be 91 weeks and is 
 
         detailed in an attachment to the pre-hearing report and order 
 
         incorporated into the record at the time of the hearing and is 
 
         incorporated herein as if set out in full.
 
              d.  The type of permanent disability, if the injury is found 
 
         to be a cause of permanent disability, is industrial disability 
 
         to the body as a whole.
 
              e.  The commencement date for permanent partial disability, 
 
         is February 5, 1990.
 
              f.  The rate of compensation, in the event of an award, is 
 
         $204.78 per week based on a gross weekly wage of $304 per week. 
 
         Claimant is married and has two children.  She is entitled to 
 
         four exemptions.
 

 
         
 
         EWING V. IOWA POWER & LIGHT
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         
 
              g.  The parties agree that the providers of medical services 
 
         would testify that the fees were reasonable and defendant is not 
 
         offering contrary evidence.  
 
              h.  The parties agree that the providers of claimant's 
 
         medical services would testify that the treatment was reasonable 
 
         and necessary treatment of the work injury and defendant is not 
 
         offering contrary evidence.
 
              i.  The causal connection of the expenses to treatment for a 
 
         medical condition upon which claimant is now basing her claim is 
 
         admitted but the causal connection of this condition to a work 
 
         injury remains an issue to be decided in these proceedings.
 
              j.  The expenses were authorized by the employer.
 
              k.  Defendant seeks a credit for sick pay/disability income 
 
         in the amount of $17,416.31 and medical/hospitalization expenses 
 
         in the amount of $40,816.68.
 
              l.  Defendant has paid 10.2857 weeks of workers' 
 
         compensation benefits to claimant at the rate of $204.78 per week 
 
         prior to hearing.
 
              m.  The amount of costs to be assessed in this matter totals 
 
         $983.25 plus the cost of the shorthand reporter for the hearing.
 
         
 
         Issues
 
         
 
              The issues for resolution are as follows:
 
              1.  Whether a causal relationship exists between claimant's 
 
         claimed injuries and the claimed disability and the nature and 
 
         extent of any entitlement to benefits, if any.
 
              2.  Whether claimant is entitled to medical benefits, 
 
         including a determination of causal connection to the work injury 
 
         and the causal connection of this condition to a work injury.
 
         
 

 
         
 
         EWING V. IOWA POWER & LIGHT
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
         
 
         FINDINGS OF FACT
 
         
 
              After considering all of the evidence and the arguments of 
 
         counsel, the undersigned makes the following findings of fact and 
 
         conclusions of law.
 
              1.  At the time of the hearing, claimant was 34 years old.  
 
         At the time of her injury, claimant was 29.  Claimant completed 
 
         the tenth grade and then obtained a GED in 1975.  Claimant also 
 
         has obtained a clerk of business degree from the Des Moines Area 
 
         Community College in 1981.  Claimant was trained to perform 
 
         office tasks as a part of this program.  Claimant has not had any 
 
         additional training since her course work at DMACC.
 
              2.  Claimant's work history has been primarily sedentary 
 
         work.  Claimant has worked as a teaching aide, a check encoder, a 
 
         data entry clerk, an editing clerk with bookkeeping duties, and a 
 
         word processor.  Claimant's average hourly wage ranged from 
 
         minimum wage to $5.22 per hour.
 
              3.  In November of 1984, claimant began working for Iowa 
 
         Power as a part-time data entry clerk.  Claimant bid on to a 
 
         full-time data entry clerk position in January of 1985.  Claimant 
 
         was a special accounts representative at the time of her injury.  
 
         As a special accounts representative, claimant worked with 
 
         contractors and builders in establishing temporary accounts for 
 
         electrical use at construction sites.  Claimant's job was a 
 
         sedentary position which included keyboarding skills at a 
 
         typewriter and a computer and a ten key calculating machine.
 
              4.  Claimant's past health history is relevant in that she 
 
         has a preexisting condition of uneven leg length that has caused 
 
         rotoscoliosis in her back.  One of claimant's legs is 3.3 
 
         centimeters longer than the other.  Claimant's condition has been 
 
         in existence since she was age 17.  This condition can cause 
 
         accelerated wear and tear on claimant's back.  The condition was 
 
         asymptomatic until a change in claimant's work station occurred.  
 
         Claimant's work at Iowa Power did not cause claimant's 
 
         rotoscoliosis.
 
              5.  In July of 1987, claimant went to see her family 
 
         physician, David Swieskowski, M.D., and reported that she had a 
 
         backache that had lasted for the previous two weeks with no known 
 
         injury.  Claimant indicated that she was particularly bothered 
 
         when she was at work.  Claimant gave Dr. Swieskowski a history 
 
         regarding her work as a special accounts representative.  
 
         Claimant indicated that when she typed at her typewriter, she 
 
         could not get her legs under the typing stand because of the 
 
         chair she was using.  This in turn caused her to bend over to 
 
         reach her machine.  Claimant typed in this position for long 
 
         periods of time.  Her back hurt more at work than it did when she 
 
         was at home on the weekend.  Prior to the July 1987 complaints, 
 
         claimant had never had any back complaints.  After these 
 
         complaints, claimant was taken off work for a week and sent for 
 
         physical therapy.  At the time of the physical therapy treatment, 
 
         Thomas W. Bower, L.P.T., indicated that claimant had no 
 
         significant radicular or sensory changes in her back.  He noted 
 

 
         
 
         EWING V. IOWA POWER & LIGHT
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
         
 
         her range of motion was markedly guarded and restricted on July 
 
         21, 1987 but improved with treatment.  After a week of treatment, 
 
         claimant returned to work reporting no back pain.  
 
              6.  When claimant returned to work on July 27, 1987 her work 
 
         station had not changed.  She still had the same chair and typing 
 
         stand and she had to lean over to type.  By July 31, she was 
 
         again complaining of back pain.  On July 31, Dr. Swieskowski took 
 
         claimant off work until suitable working conditions could be 
 
         obtained to avoid straining claimant's back.  He was convinced 
 
         that her pain and loss of work time was because of positional 
 
         factors related to how she worked while typing.  Dr. Swieskowski 
 
         noted that working with arms outstretched clearly aggravates a 
 
         back strain.
 
              7.  After she was taken off work, Iowa Power sent her to the 
 
         Iowa Methodist Sports Clinic.  Claimant was first seen by Raymond 
 
         L. Webster, M.D., on August 3, 1987.  Claimant gave a consistent 
 
         history to Dr. Webster.  After an examination by Dr. Webster   
 
         Dr. Webster's impression was that claimant was suffering from 
 
         myofascial back pain secondary to poor ergonomic work design.  
 
         During this exam, claimant had good range of motion in her back 
 
         and had negative bilateral straight leg raising tests.  Claimant 
 
         was seen again on August 6, 1987 and she reported improvement in 
 
         her back pain.  The assessment on this date was that claimant had 
 
         resolving myofascial back discomfort.  
 
              8.  On August 10, claimant was still making progress in 
 
         resolving her myofascial back discomfort.  She had full range of 
 
         motion and negative straight leg raising test bilaterally.  On 
 
         this date, claimant was released to return to light duty work 
 
         with  restrictions of no sitting more than 30 minutes at a time, 
 
         minimized typing duties with no more than 15 minutes per hour, no 
 
         repetitive twisting, bending, pushing, pulling, or lifting 
 
         greater than 10 pounds.  
 
              9.  On September 3, and September 10, 1987, claimant saw Dr. 
 
         Neff in connection with her back pain.  Dr. Neff found claimant's 
 
         leg length differential and rotoscoliosis.  He believed that she 
 
         should be treated with physical therapy at home, Tylenol, hot 
 
         packs, and that the mechanical problem in her back be corrected 
 
         with shoe and heel lifts.  He also believed that once the 
 
         biomechanical imbalance was improved the myofascial pain would 
 
         improve.  Dr. Neff did not attribute claimant's back complaints 
 
         to the work station at Iowa Power.
 
         
 
              10.  Claimant began a new course of physical therapy 
 
         treatments with the Iowa Methodist Sports Center on September, 2, 
 
         1987.  Claimant continued to complain of pain in her low back.  
 
         David Berg, D.O., became the treating physician at that time.  
 
         Between September 2, 1987 and September 21, 1987, Dr. Berg 
 
         examined claimant several times, generally after the physical 
 
         therapy sessions.  The following chart is a summary of the 
 
         examination results and impressions from both Doctor Berg and 
 
         Mike Dreibelbeis:
 
         
 

 
         
 
         EWING V. IOWA POWER & LIGHT
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
         
 
              Date    Tenderness     Muscle    Bilateral       Comments 
 
                     to palpation    spasms   Straight leg       and
 
                                                Raising       Impression     
 
         
 
              9-2    Yes, bilateral    No      Negative      Right posterior
 
                                                             aspect of leg to
 
                                                             feet aggravated
 
                                                             with sitting.
 
                                                          Recurrent myofascial
 
                                                         back strain secondary
 
                                                             to poor ergonomic
 
                                                            working conditions
 
         
 
              9-4                        None Full ROM     No        ***         No difficulty
 
                                                             sitting for 45
 
                                                             minutes in typing
 
                                                             position.  
 
                                                             Postural back
 
                                                             dysfunction
 
         
 
              9-9                        Yes, more on      No       Negative     Released to 
 
         return
 
                                         right than left                    to work.  Postural
 
                                                             etiology. 
 
                                                           Condition aggravated
 
                                                               with sitting.
 
         
 
              9-11                       Yes, posterior    ***     Yes pos @      Radiating pain
 
                     aspect of LS area         10-20o        down into lateral
 
                                                           aspects of both 
 
         legs
 
                                                           very painful to walk
 
                                                           Dorsiflexion did not 
 
                                                           produce more pain.  
 
                                                           Claimant has acute
 
                                                                  back pain.
 
         
 

 
         
 
         EWING V. IOWA POWER & LIGHT
 
         Page   6
 
         
 
         
 
         
 
         
 
         
 
         
 
              Date    Tenderness     Muscle    Bilateral       Comments 
 
                     to palpation    spasms   Straight leg       and
 
                                                Raising       Impression     
 
         
 
              9-16   Normal range     ***      Negative    Noted mild 
 
         scoliosis
 
                    motion but painful                  and unequal leg 
 
         lengths
 
                    with flexion                    Heel lifts prescribed
 
                                                            to correct
 
                                                        biomechanical 
 
         imbalance
 
         
 
              9-21   Some, no shooting  None    Negative    Resolving low back 
 
         
 
                     pain                                  pain.  Heel lift 
 
                                                           helped.  
 
         
 
              11.  On September 22, 1987 when claimant reported for 
 
         physical therapy, she indicated to Mike Dreibelbeis, "I hurt 
 
         getting into the tub this a.m. and could hardly work." (2)  During 
 
         this therapy session, Mr. Dreibelbeis noted that claimant could 
 
         bend forward to the level of her mid-tibia; she had no muscle 
 
         spasm; her straight leg raising were negative bilaterally; and 
 
         claimant's gait was normal in terms of how quickly she moved.  
 
         After therapy, claimant had no muscle spasms, her gait was normal 
 
         and she had decreasing pain after ice and ultrasound.  
 
         Significantly, claimant did not complain of left leg pain or 
 
         weakness on this date.(3)  
 
              12.  On September 24, 1987, claimant indicated when she 
 
         reported for physical therapy that everything hurt and that the 
 
         heel lift was not helping.  After she had an ice treatment, she 
 
         had total pain relief.  Mike Dreibelbeis noted that there was no 
 
         pain with palpation and no muscle spasms were detected with 
 
         claimant prone on the table.  Claimant was complaining of pain in 
 
         the right and left anterior and posterior thighs and in both 
 
         buttocks.  Mike Dreibelbeis noted that claimant had very 
 
         inconsistent findings as a result of this treatment session.  
 
              13.  Dr. Berg examined claimant on September 24, 1987.  
 
         Since Tuesday, September 22, claimant had complained of 
 
         increasing back pain.  Claimant had pain radiating across her 
 
         back from the lumbosacral juncture right and left laterally in 
 
         equal proportions.  Claimant had the same right and left anterior 
 
         thigh pain but this time it was anterior rather than lateral.  
 
         She also had buttock pain on this date.  Dr. Berg could find no 
 
         tenderness to palpation.  However, when he performed straight leg 
 
         raising tests, these were positive with just a few degrees 
 
         elevation, and the dorsiflexion of the foot brought tears to 
 
         claimant's eyes.  Dr. Berg's assessment at the conclusion of his 
 
         examination was that claimant was suffering from lumbosacral pain 
 
         of unknown etiology.(4) 
 
              14.  Claimant was seen for the last time by Mr. Dreibelbeis 
 
         (2) 
 
              .  When asked what his note of September 22 meant, Mr. 
 
         Dreibelbeis advised that claimant told him that she had hurt 
 
         herself getting into the tub that morning and she could hardly 
 
         work.  He believes that claimant injured her back on this date.
 
         (3) 
 
              .  Mr. Dreiblebeis was of the view, however,  that claimant's 
 
         pain complaints and condition changed after this incident.  He 
 
         felt the that the pain complaints were different from the prior 
 
         dates.  
 
         (4) 
 
              .  Dr. Berg later opined that claimant had herniated a disk on 
 
         September 22 getting into the bathtub.  A confirming CT scan was 
 
         not done on this date however.  Dr. Berg based his conclusion on 
 
         the dramatic changes in symptoms in claimant from the physical 
 
         therapy reports and his own examination.
 
         
 
         
 
         EWING V. IOWA POWER & LIGHT
 
         Page   7
 
         
 
         
 
         
 
         
 
         
 
         
 
         on September 25, 1987.  Claimant came in reporting a pain level 
 
         of eight on a scale of one to ten.  Straight leg raising on the 
 
         right was positive for pain at 55 degrees and positive at 45 
 
         degrees on the left.  In a sitting position, claimant reported 
 
         pain at 20 degrees on the right and 20 degrees on the left.  
 
         After the ice treatment, claimant was reporting no pain and was 
 
         smiling prone on the table.  Claimant also did prone press ups to 
 
         80 percent of an arm extension.  Claimant was able to do six with 
 
         no pain but on the seventh she reported a pain level of eight.  
 
         Getting off the treatment table, claimant complained of pain in 
 
         her left leg and she reported weakness in her left leg.
 
              15.  On September 28, 1987, claimant appeared for an 
 
         examination with Dr. Berg and appeared to be in moderate acute 
 
         distress.  He noted that an examination of her low back revealed 
 
         tenderness in the lumbosacral area bilaterally.  Claimant was not 
 
         able to do straight leg raising tests because they were falsely 
 
         positive on both sides because of pain.  Dr. Berg felt that there 
 
         was a very strong emotional component to the problem but he also 
 
         felt that she had an anatomical problem with her low back. 
 
              16.  On October 2, a CT scan revealed that claimant had a 
 
         disc protrusion at L5-S1 interspace centrally and on the left 
 
         side.  Dr. Berg felt that claimant had lumbar disk disease and 
 
         made an appointment for claimant to see David J. Boarini, M.D., 
 
         on October 12.  
 
              17.  On October 9, 1987, Dr. Berg wrote an explanatory 
 
         letter to Cindy Byrd at Iowa Power regarding claimant's 
 
         condition.  He indicated that claimant's recurrent back problems 
 
         appeared to be improving but had followed an irregular course of 
 
         improvement and regression.  He indicated that her clinical signs 
 
         and symptoms were so variable that claimant could not be 
 
         consistently evaluated from one day to another.  In connection 
 
         with the protruding disk, Dr. Berg noted that the protrusion of 
 
         her disc at L5-S1 interspace was centrally and on the left side.  
 
         In all of the visits that claimant had with the Sports Medical 
 
         Centre until September 25, 1987, her symptoms were primarily on 
 
         the right side.  Dr. Berg agreed with Dr. Neff that claimant had 
 
         many preexisting conditions that would cause her to have back 
 
         pain and he felt that it was extremely unlikely that the disk 
 
         protrusion was a result of her work at Iowa Power.  Dr. Berg did 
 
         agree at the time of his deposition however, that claimant's pain 
 
         changed on September 25, 1987.
 
              18.  On October 12, 1987, Dr. Boarini had an opportunity to 
 
         examine claimant regarding her low back and left leg pain.  Upon 
 
         examination, claimant had a positive straight leg raising 
 
         bilaterally.  Her strength and sensation were intact.  After 
 
         reviewing the CT scan, Dr. Boarini felt that claimant had a 
 
         probable defect at L5-S1 on the left.  He discussed the situation 
 
         with claimant and recommended that she have a myelogram.  Dr. 
 
         Boarini advised claimant that he did not believe that the disk 
 
         protrusion was work related.  Claimant did not agree with this 
 
         conclusion and Dr. Boarini declined to treat claimant further.  
 

 
         
 
         EWING V. IOWA POWER & LIGHT
 
         Page   8
 
         
 
         
 
         
 
         
 
         
 
         
 
         He referred claimant to Dr. Winston.  However, before that 
 
         referral could made, claimant was seen by William R. Boulden, 
 
         M.D, on October 16, 1987.  After that examination, Dr. Boulden 
 
         noted that claimant had a probable herniated disc at L5-S1.  
 
              19.  In Dr. Boulden's consultation notes of October 16, 
 
         1987, claimant reported that during the last week of physical 
 
         therapy she had started to develop left leg pain.  After physical 
 
         therapy, the pain started to get worse.  Upon examination, Dr. 
 
         Boulden felt that claimant had nerve entrapment, predominantly on 
 
         the left.  Eventually, Dr. Boulden reviewed Dr. Berg's notes and 
 
         the notes of the physical therapist and indicated within a 
 
         reasonable degree of medical certainty that as of September 21 
 
         and September 24, claimant still had a low back problem as 
 
         opposed to a herniated or ruptured disc.  After the report of 
 
         September 25, 1987, where claimant reported radiating pain in her 
 
         left leg, Dr. Boulden concluded claimant ruptured her disc while 
 
         she was receiving physical therapy.  Dr. Boulden did not believe 
 
         that her work station caused her herniated disc.  However, he did 
 
         believe that the work station aggravated a preexisting 
 
         degenerative condition in her lower back.  
 
              20.  After a course of conservative treatment, claimant had 
 
         a discectomy at L4-5 and L5-S1.  In January of 1988, claimant was 
 
         released to return to work.  She was noticed increasing low back 
 
         discomfort and that her left leg was dragging at times.  Dr. 
 
         Boulden could find no specific cause for the continuing problems 
 
         and returned her to work.  Claimant continued to have back pain 
 
         when she sat to long.  These symptoms persisted, and Dr. Boulden 
 
         obtained a repeat MRI in February 1988.
 
              21.  Claimant continued to complain of leg pain and back 
 
         pain through the spring.  Dr. Boulden obtained a follow-up EMG 
 
         study which showed a continuation of S1 nerve changes.  Dr. 
 
         Boulden concluded that claimant had residual nerve damage from 
 
         the rupturing disc.  He used epidural injections to see if he 
 
         could get the pain under control for claimant.  The epidural 
 
         injections worked for awhile but did not successfully alleviate 
 
         the leg pain.  He then recommended manipulative therapy to 
 
         control the pain.  If not, then he was going to suggest facet 
 
         blocks.
 
              22.  On July 29, 1988, Dr. Boulden gave claimant permanent 
 
         restrictions for her back.  Dr. Boulden assigned a 12 percent 
 
         functional impairment rating to claimant.  Dr. Boulden did 
 
         conclude that claimant's initial problem was a degenerative disc 
 
         irritation in her back.  Sitting for extended period of time 
 
         aggravated her degenerative disc condition.  Dr. Boulden went on 
 
         to opine that if claimant could alternate standing and sitting 
 
         and walking, he believed that she would alleviate the stress on 
 
         her back and she could return to work in a productive manner.  He 
 
         felt that she should not do any bending or twisting of any type.  
 
         Claimant should not sit or stand in any particular spot for more 
 
         than 30 minutes at a time without being able to move.  In 
 
         September of 1988, Dr. Boulden approved a job description for 
 

 
         
 
         EWING V. IOWA POWER & LIGHT
 
         Page   9
 
         
 
         
 
         
 
         
 
         
 
         
 
         claimant.
 
              23.  Apparently, claimant's pain did not abate and she 
 
         underwent a transverse process and facet fusion surgery  with 
 
         bone grafts at L4-5 and L5-S1 on October 12, 1988.  Dr. Boulden 
 
         found that the pain was coming from symptomatic degenerative disc 
 
         disease and mechanical back pain.  After the surgery, Dr. Boulden 
 
         felt she would recover in the next six months.  On February 22, 
 
         1989, Dr. Boulden saw claimant and noted that she was healing 
 
         very well but that she needed to participate in more activity.
 
              24.  On March 30, 1989, Dr. Boulden saw claimant again.  
 
         Claimant continued to have off and on symptoms in her buttocks 
 
         and down her left leg.  Dr. Boulden reviewed x-ray films of 
 
         claimant's spine.  The fusion was stable.  When Dr. Boulden spoke 
 
         with claimant's physical therapist, he noted that at times 
 
         claimant had excellent motion and at other times she did not.  
 
         Dr. Boulden felt that there was a psychological overlay to 
 
         claimant's pain complaints and he recommended a bio-feedback 
 
         program.
 
              25.  In April of 1989, Dr. Boulden indicated that he had 
 
         nothing further to offer claimant from an orthopaedic standpoint 
 
         and released claimant.  Dr. Boulden did not increase claimant's 
 
         functional impairment rating or change her restrictions.  She 
 
         continued to complain of pain but he found no orthopaedic reason 
 
         for her to have the pain other than the fact that she has some 
 
         scar tissue in her low back.  He felt that the pain center would 
 
         probably be a good alternative treatment.  Dr. Boulden felt that 
 
         there was not a lot of organic pathology.  Dr. Boulden felt that 
 
         her pain was out of proportion to the pathological processes he 
 
         observed.  
 
              26.  On April 10, 1989, claimant was referred to United 
 
         Behavior Clinics of Des Moines for her back pain.  Claimant gave 
 
         a consistent history of her injury and surgeries.  The assessment 
 
         by Mike Palmer, licensed psychologist, indicated that claimant 
 
         had an adjustment disorder with mixed emotional features 
 
         secondary to chronic pain syndrome.  Claimant was evaluated for 
 
         the purpose of assessing her chance of success at the Mercy Pain 
 
         Clinic.
 
              27.  Claimant was subsequently evaluated by Karl Northwall, 
 
         M.D., a psychiatrist.  After his examination, he concluded that 
 
         he did not see much of any psychiatrically pathological in 
 
         claimant.  He did not believe that she was malingering and that 
 
         she has a life circumstance problem secondary to chronic pain.  
 
         He believed that biofeedback, relaxation training and 
 
         consideration of a pain center would be useful for claimant.
 
              28.  On July 11, 1989, Dr. Northwall again had an 
 
         opportunity to evaluate claimant.  He noted that she was still 
 
         complaining of sharp shooting pain on this date.  He estimated 
 
         her pain at approximately 2-3 on a scale of 10 even though 
 
         claimant indicated the pain was at 8 on the scale.  Additionally, 
 
         he noted that with her MMPI score and pain scale scores, claimant 
 
         has a degree of histrionicity in her.  As part of his assessment, 
 

 
         
 
         EWING V. IOWA POWER & LIGHT
 
         Page  10
 
         
 
         
 
         
 
         
 
         
 
         
 
         Dr. Northwall indicated that he believed he could stretch her 
 
         condition into an adjustment disorder with a depressed mood 
 
         secondary to her chronic pain syndrome.  He also felt that there 
 
         may be some degree of psychological overlay and that she had some 
 
         degree of secondary gain but he was not clear as to what the gain 
 
         would be.  
 
              29.  After her evaluation at United Behavioral Clinic, 
 
         claimant was admitted to the Mercy Pain Center for treatment for 
 
         her back pain in January of 1990.  Claimant gave a consistent 
 
         history.  Of note, claimant indicated that her husband was in 
 
         good health but he was unemployed at the time of this examination 
 
         due to a reading disability.  Upon examination James L. Blessman, 
 
         M.D., noted that claimant had amazingly good range of motion of 
 
         her lumbar spine and rotation, side bending, flexion and 
 
         extension.  He noted that claimant had considerable amount of 
 
         pain with extension.  He straight leg raising tests were 
 
         basically negative.  Dr. Blessman noted that claimant had 
 
         weakness of the dorsal flexion of her left foot and also some 
 
         trouble walking on her heels on the left otherwise her gait was 
 
         normal.  He noted that she was unable to walk on her toes.  At 
 
         the end of the treatment period, claimant indicated that her pain 
 

 
         
 
         EWING V. IOWA POWER & LIGHT
 
         Page  11
 
         
 
         
 
         
 
         
 
         
 
         
 
         had improved.  The staff encouraged claimant to obtain marital 
 
         therapy.  Claimant was released to return to her job on February 
 
         5, 1990.  
 
              30.  Before claimant was released from the pain center, she 
 
         had a block for pain in the lower lumbar area.  At the time that 
 
         the block was administered, James Ryan, M.D., found that on 
 
         examination that the claimant was perfectly normal.  Her straight 
 
         leg raising test was also normal.  Dr. Ryan could find no sensory 
 
         problems.  The block was performed and Dr. Ryan believed that 
 
         this should assist claimant in dealing with her pain.
 
              31.  Dr. Swieskowski saw claimant on an intermittent basis 
 
         after her back surgery for a couple of unrelated medical problems 
 
         and for her back pain.  After these visits, he concluded that 
 
         claimant still had chronic back pain.  By May 1990, Dr. 
 
         Swieskowski restricted claimant from any lifting or carrying 
 
         whatsoever, sitting for no more than one hour at a time, no 
 
         stooping, climbing, kneeling or crawling.  He also believed that 
 
         traveling would be difficult for claimant.  He believed that 
 
         claimant was incapable of performing gainful employment.  
 
         However, Dr. Swieskowski also believed that if a job could be 
 
         structured whereby claimant would be seated for awhile and could 
 
         stand for awhile and then she could walk around and not lift 
 
         heavy objects then she could perform that kind of job.  His 
 
         opinion was based on subjective pain complaints by the claimant.  
 
         There were very few objective findings to support these 
 
         conclusions.  The only objective findings Dr. Swieskowski could 
 
         find were claimant's leg length difference and curvature of her 
 
         spine.  
 
              32.  In connection with causality, Dr. Swieskowski felt that 
 
         claimant did not have a herniated disc when he began treating her 
 
         in July 1987.  He believed that it developed during the course of 
 
         her treatment.  He did not know whether the treatment caused her 
 
         herniated disc.  However, Dr. Swieskowski had no doubt that the 
 
         herniated disc occurred sometime between the CT scan of October 2 
 
         and the MRI scan of October 16, 1987.  He believed that the CT 
 
         scan showed a bulging disc and the MRI study showed a herniation.  
 
         
 
              33.  On July 31, 1991, claimant was evaluated by Michael J. 
 
         Taylor, M.D., a psychiatrist.  Dr. Taylor reviewed extensive 
 
         medical records including the records pertaining to the care that 
 
         claimant had received at the Pain Center at Mercy Medical Center 
 
         and the mental health care she had received at United Behavior 
 
         Clinics.  He also reviewed a medical summary prepared by Mr. 
 
         Dawe's office including the records from Dr. Swieskowski, Dr. 
 
         Webster, Dr. Berg, Dr. Boulden, Dr. Neff and the physical 
 
         therapists who have treated claimant.  After the evaluation of 
 
         claimant, Dr. Taylor concluded within reasonable degree of 
 
         medical certainty that claimant was suffering from a major 
 
         depressive disorder.  He believes that claimant could be 
 
         successfully treated for this condition and believes that it 
 
         would not result in any type of permanent psychiatric impairment.  
 

 
         
 
         EWING V. IOWA POWER & LIGHT
 
         Page  12
 
         
 
         
 
         
 
         
 
         
 
         
 
         The major depressive disorder is related to the physical 
 
         difficulty she is experiencing.  He did conclude, however, that 
 
         the depression was not directly caused by any factor related to 
 
         her employment situation.
 
              34.  Claimant returned to work March 5, 1990.  She was on 
 
         duty from March 5 to March 19 on a part-time basis.  Iowa Power 
 
         designed a position for claimant that met her restrictions.  
 
         Claimant was doing very well.  She indicated that she felt good 
 
         and was pleased to be back.  She started working full-time March 
 
         19, 1990.  Thereafter, claimant continued to complain of pain in 
 
         her back.  Prior to claimant's back complaints, she did have a 
 
         chronic sick leave abuse problem.  Claimant last worked in 1990.
 
              35.  Currently, claimant has ongoing low back pain.  She has 
 
         indicated that sitting bothers her when she sits for more than an 
 
         hour.  She indicates that she can't stand for more than an hour 
 
         and she can't walk very far.  Claimant also believes that she can 
 
         not lift things in excess of five pounds and that her sleep 
 
         pattern is currently irregular.  She also believes that she is 
 
         restricted from bending, pushing, and pulling and doing any type 
 
         of repetitive stooping, bending, lifting, pushing or pulling.  
 
         Claimant has been receiving social security disability income 
 
         since March of 1990.  Claimant has made no further attempts to 
 
         obtain employment since she was awarded social security 
 
         disability benefits.  
 
              36.  Claimant has incurred medical bills with various 
 
         providers over the course of her treatment.  These are contained 
 
         in exhibit 32.  The total amount of the medical bills equals 
 
         $40,816.68.
 
         
 
         CONCLUSIONS OF LAW
 
         
 
              1.  Whether a causal relationship exists between claimant's 
 
         claimed injuries and the claimed disability and the nature and 
 
         extent of any entitlement to benefits, if any.
 
              Claimant urges that her disability is a result of physical 
 
         therapy treatment that took place on September 25, 1987.  She 
 
         contends that the treatment herniated a disk in the lumbosacral 
 
         region of her back.  This herniation caused her to have a 
 
         laminectomy and ultimately a two level fusion leaving her 
 
         permanently and totally disabled.  Defendants argue that claimant 
 
         herniated the disk in her back getting into a bathtub on 
 
         September 22, 1987 and that this intervening event is the cause 
 
         of her disability.  In the alternative, if a causal connection is 
 
         found, defendants urge that claimant's industrial disability is 
 
         not substantial.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of July 13, 1987 and the subsequent 
 
         treatment given in September of 1987, is causally related to the 
 
         disability on which she now bases her claim.  Bodish v. Fischer, 
 
         Inc., 133 N.W.2d 867, 868 (Iowa 1965);  Lindahl v. L. O. Boggs, 
 
         18 N.W.2d 607, 613-14 (Iowa 1945).  A possibility is 
 
         insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa 1955).  A cause 
 

 
         
 
         EWING V. IOWA POWER & LIGHT
 
         Page  13
 
         
 
         
 
         
 
         
 
         
 
         
 
         is proximate if it is a substantial factor in bringing about the 
 
         result.  Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 
 
         (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296, 
 
         297 (Iowa 1974).  There only needs to one cause; it does not have 
 
         to be the only cause to make the claim compensable.  Blacksmith, 
 
         290 N.W.2d at 354.  The question of causal connection is 
 
         essentially within the domain of expert testimony.  Bradshaw v. 
 
         Iowa Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960).  
 
              Expert medical evidence must be considered with all other 
 
         evidence introduced bearing on the causal connection.  Burt, 73 
 
         N.W.2d at 738.  The opinion of the experts need not be couched in 
 
         definite, positive or unequivocal language.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903, 907 (Iowa 1974).  Moreover, the expert 
 
         opinion may be accepted or rejected, in whole or in part, by the 
 
         trier of fact.  Sondag, 220 N.W.2d at 907.  Finally, 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 material circumstances.  Bodish, 133 N.W.2d at 
 
         870; Musselman, 154 N.W.2d at 133.  The Supreme Court has also 
 
         observed that greater deference is ordinarily accorded expert 
 
         testimony where the opinion necessarily rests on medical 
 
         expertise.  Sondag, 220 N.W.2d at 907.
 
              The Supreme Court has consistently held that a claimant may 
 
         recover for a work connected aggravation of a preexisting 
 
         condition.  Almquist v. Shenandoah Nurseries, 254 N.W. 35,38 
 
         (Iowa 1934); Gosek v. Garmer and Stiles Co., 158 N.W.2d 731, 737 
 
         (Iowa 1968); Barz v. Oler, 133 N.W.2d 704, 707 (Iowa 1965); Olson 
 
         v. Goodyear Service Stores, 125 N.W.2d 251, 256 (Iowa 1963); 
 
         Yeager v. Firestone Tire & Rubber Co., 112 N.W.2d 299, 302 (Iowa 
 
         1961); Ziegler v. United States Gypsum Co., 106 N.W.2d 591, 595 
 
         (Iowa 1960).  The Supreme Court has also indicated that in order 
 
         for an aggravation of a preexisting condition to be compensable, 
 
         the aggravation should be material.  Yeager, 112 N.W.2d at 302.  
 
         Moreover, a condition that is aggravated or increased by 
 
         treatment is also compensable provided the worker is not 
 
         negligent in selecting the person who administers the treatment.  
 
         Lindeken v. Lowden, 295 N.W. 112, 118-119 (Iowa 1941); Lawyer and 
 
         Higgs, Iowa Workers' Compensation--Law and Practice(2nd Ed. 
 
         1991), Section 4-4.
 
         
 
              In this instance, the medical evidence is unbalanced in its 
 
         attempts to pinpoint the cause of claimant's disk herniation.  
 
         Doctors Berg, Boarini and Swieskowski did not attribute 
 
         claimant's herniation to the physical therapy treatment.  Dr. 
 
         Swieskowski, a board certified family practitioner,  specifically 
 
         said that he did not know whether the physical therapy treatment 
 
         caused the herniation.  He believed that the herniation occurred 
 
         between October 2, 1987, the date of the CT scan and the MRI 
 
         study that was done on October 16, 1987.  He based this 
 
         conclusion on the differences in the studies.  The CT scan showed 
 
         a protrusion and the MRI showed a herniation.  Dr. Boarini, an 
 
         orthopedist, believed that claimant's herniation was due to her 
 

 
         
 
         EWING V. IOWA POWER & LIGHT
 
         Page  14
 
         
 
         
 
         
 
         
 
         
 
         
 
         preexisting condition, rotoscoliosis caused by her uneven leg 
 
         length.  Dr. Berg, an occupational medicine specialist, eligible 
 
         to take his board certification in 1991, believed that claimant 
 
         may have herniated her disk getting into her bathtub at home on 
 
         September 22, 1987.  Dr. Boulden, a board certified orthopaedic 
 
         surgeon, and the physician who performed claimant's surgeries is 
 
         the only doctor to attribute claimant's herniated disk to the 
 
         physical therapy treatment that she received at the end of 
 
         September 1987.  Dr. Boulden indicated that physical therapy 
 
         treatment could herniate a disk.  Dr. Boulden based his 
 
         conclusion on the history obtained from claimant, the notes from 
 
         Michael Dreibelbeis which indicate a change in claimant's left 
 
         leg pain on September 25, 1987 and Dr. Berg's notes from 
 
         September 24, 1987 and letter of September 28,1987.  Dr. Boulden 
 
         believed claimant's disk herniated sometime during physical 
 
         therapy treatments between September 24, 1987 and September 28, 
 
         1987.
 
              This writer finds the testimony of Dr. Boulden most 
 
         compelling.  The record is clear that claimant's pain and 
 
         complaints did not change substantially after September 22, 1987.  
 
         The words, "I hurt getting into the tub this a.m. and could 
 
         hardly work" connote an intervening event that could have broken 
 
         the causation chain if there had been other evidence on this day 
 
         of a changed condition.  As it was, none of the medical 
 
         professionals who have examined the record of September 22, 1987 
 
         find anything remarkable for a herniated disk.  Claimant had 
 
         negative leg raising, her gait and step were normal.  She had 
 
         full flexion and range of motion to the mid tibia.  Her pain 
 
         complaints did not change on this date.  This report does not 
 
         indicate that claimant had anything other than the same back pain 
 
         she had started with when the course of physical therapy began in 
 
         September.  Claimant's pain complaints changed on September 24 
 
         and September 25, notably after the physical therapy treatment.  
 
         Claimant complained of more pain, her gait had slowed, and her 
 
         straight leg tests were negative for Therapist Dreibelbeis.  
 
         However, when she was examined by Dr. Berg after therapy, her 
 
         straight leg raising tests were positive and she was exhibiting 
 
         more pain behaviors.  This was sufficient for Dr. Berg to order a 
 
         CT scan to pinpoint the cause of claimant's pain complaints.  On 
 
         September 25, claimant began her therapy session with pain of 8 
 
         on a scale of 10 that resolved during the first part of the 
 
         session.  The pain returned to 8 after claimant did prone press 
 
         ups and when she got off the table she had left leg pain and 
 
         weakness.  This condition was new.  As Dr. Berg had observed 
 
         during his deposition and in his letter to Iowa Power on 
 
         September 28, claimant's complaints had been largely on the right 
 
         before September 25, 1987.  This evidence when coupled with Dr. 
 
         Boulden's assertion that physical therapy was the culprit in 
 
         causing claimant's herniated disk is sufficient to establish the 
 
         necessary causal link to carry claimant's burden of proof on this 
 
         point and establish her entitlement to permanency benefits and 
 

 
         
 
         EWING V. IOWA POWER & LIGHT
 
         Page  15
 
         
 
         
 
         
 
         
 
         
 
         
 
         medical benefits.
 
              It is clear from Dr. Boulden's records that claimant has 
 
         suffered a permanent injury as a result of the herniated disk and 
 
         two level fusion that he performed.  Dr. Boulden assigned a 12% 
 
         functional impairment to claimant's body as a whole and indicated 
 
         that claimant is restricted to sedentary work with alternating 
 
         sitting, standing and walking positions.  Dr. Boulden believes 
 
         that claimant can work if the job matches her restrictions and 
 
         Iowa Power is willing to accommodate her needs.  Dr. Swieskowski 
 
         assigned more severe restrictions which included no lifting of 
 
         any weight, 30 minutes of sitting, standing and walking at any 
 
         one time and no repetitive bending, stooping, or twisting.  
 
         Again, because Dr. Boulden is the board certified orthopedist in 
 
         this case, his assessment of claimant's permanent impairment and 
 
         restrictions will be adopted.
 
         
 
              Where claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 258 N.W.2d 899, 
 
         902 (Iowa 1935) as loss of earning capacity and not a mere 
 
         `functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         person.  The essence of an earning capacity inquiry then, is not 
 
         how much has the claimant been functionally impaired, but whether 
 
         that impairment, in combination with the claimant's age, 
 
         education, work experience, pre and post injury wages, motivation 
 
         and ability to get a job within the restrictions, if any 
 
         restrictions have been imposed, have caused a loss of earning 
 
         capacity.  Olson v. Goodyear Service Stores, 125 N.W.2d 251, 257 
 
         (Iowa 1963); Diederich v. Tri-City Railway Co., 258 N.W. 899, 902 
 
         (Iowa 1935);  Peterson v. Truck Haven Cafe, Inc., 1 Iowa 
 
         Industrial Comm'r Dec. No. 3, 654, 658 (1985); Christensen v. 
 
         Hagen, Inc., 1 Iowa Industrial Comm'r Dec. No. 3, 529, 534-535 
 
         (1985). 
 
         
 
              In order to show that claimant is permanently and totally 
 
         disabled, claimant must show that the only services she can 
 
         perform are so limited in quality, dependability, or quantity, 
 
         that a reasonable, stable market for them does not exist.  When a 
 
         combination of industrial disability factors precludes a worker 
 
         from obtaining regular employment to earn a living, a worker with 
 
         only a partial functional disability has a total industrial 
 
         disability.  Guyton v. Irving Jensen Company, 373 N.W.2d 101 
 
         (Iowa 1985).
 
              In this instance, claimant believes that she is precluded 
 
         from any gainful employment because of the pain that she is 
 
         experiencing as a result of her back surgeries.  Pain that is not 
 
         supported by clinical findings is not a substitute for 
 
         impairment.  Waller v. Chamberlain Manufacturing, II Iowa 
 
         Industrial Commissioner Report 419, 425 (1981); Fernandez v. Good 
 
         Samaritan Nursing Center, No. 856640, Slip op. at 15 (Iowa Ind. 
 
         Comm'r Arb. February 27, 1991).  While there is no doubt in the 
 
         minds of claimant's doctors that claimant has pain, there are no 
 

 
         
 
         EWING V. IOWA POWER & LIGHT
 
         Page  16
 
         
 
         
 
         
 
         
 
         
 
         
 
         objective reasons for the pain.  Dr. Boulden indicated that he 
 
         could find no orthopedic reason for claimant's pain complaints.  
 
         Additionally, Dr. Blessman, the director of the pain center noted 
 
         that claimant had amazing flexibility for someone in as much pain 
 
         as she claimed she was in.  Dr. Ryan, who saw claimant for a 
 
         nerve block on February 2, 1990 indicated that claimant was 
 
         perfectly normal and had normal straight leg raising.  The mental 
 
         health professionals that claimant saw also believed that 
 
         claimant was exaggerating her pain complaints.  The basis for Dr. 
 
         Swieskowski's restrictions were based on subjective complaints of 
 
         pain.  This evidence is insufficient to find that claimant's pain 
 
         is so debilitating as to prevent her from working.  Moreover, 
 
         Iowa Power is to be commended for attempting to work with 
 
         claimant in structuring a position for her that fit within her 
 
         restrictions.  Claimant was being trained to read meter cards 
 
         when she left her employment with Iowa Power.  Iowa Power 
 
         structured claimant's job so that she could stand, sit and walk 
 
         around as she needed.  Since claimant had employment on a regular 
 
         basis with Iowa Power and left this job because of subjective 
 
         complaints of pain, she is not totally and permanently disabled.
 
              Claimant has suffered an industrial loss however and the 
 
         other factors must be considered.  Claimant is young and has her 
 
         whole working life ahead of her.  Claimant has a GED and post 
 
         high school training in office positions, positions that she is 
 
         suited for as long as an employer will accommodate her 
 
         restrictions of alternate sitting, standing and walking on a 
 
         regular basis.  These are significant restrictions which 
 
         foreclose substantial portions of even the sedentary labor market 
 
         to claimant.  Claimant has had two surgeries which culminated in 
 
         a two level fusion.  Claimant has a 12 percent functional 
 
         impairment rating as a result of the surgeries.  Claimant's 
 
         family life has been a distraction for her in that her husband 
 
         has been unemployed due to a reading deficiency and has not been 
 
         supportive of her treatment modalities.  Claimant's motivation 
 
         has been diminished with her qualifying for Social Security 
 
         Disability benefits.  
 
              Based upon the foregoing factors, all of the factors used to 
 
         determine industrial disability, and employing agency expertise, 
 
         it is determined that claimant sustained a 75 percent industrial 
 
         disability.
 
              Since claimant has suffered a permanent disability, she is  
 
         entitled to healing period benefits pursuant to Iowa Code Section 
 
         85.34 (1991).  Healing period benefits may be characterized as 
 
         that period during which there is a reasonable expectation of 
 
         improvement of a disabling condition and ends when maximum 
 
         medical improvement is reached. Armstrong Tire and Rubber Co. v. 
 
         Kubli, 312 N.W.2d 60, 65 (Iowa Ct. App. 1981).  In discussing the 
 
         concept of healing period as contemplated by Iowa Code Section 
 
         85.34(1) (1991) the Kubli Court observed that recuperation refers 
 
         to that condition in which healing is complete and the extent of 
 
         the disability can be determined. Kubli, 312 N.W.2d at 65.  The 
 

 
         
 
         EWING V. IOWA POWER & LIGHT
 
         Page  17
 
         
 
         
 
         
 
         
 
         
 
         
 
         healing period generally terminates at the time the attending 
 
         physician determines that the employee has recovered as far as 
 
         possible from the effects of the injury. Kubli, 312 N.W.2d at 65.    
 
         When a permanent rating is given, it indicates that the physician 
 
         does not expect the claimant to improve and this conclusion meets 
 
         the criteria of Iowa Code section 85.34(1) and Thomas v. William 
 
         Knudson & Sons, Inc., 349 N.W.2d 124, 126 (Iowa App. 1984).  The 
 
         healing period can also terminate when claimant is released to 
 
         return to work.  
 
              In this instance, the parties have agreed that claimant was 
 
         off work for 91 weeks.  Consequently, claimant is entitled to 91 
 
         weeks of healing period benefits.
 
              2.  Whether claimant is entitled to medical benefits, 
 
         including a determination of causal connection to the work injury 
 
         and the causal connection of this condition to a work injury.
 
              Defendants have also argued that claimant is not entitled to 
 
         medical benefits on the same theories urged above.  Claimant 
 
         urges to the contrary.
 
              Claimant has the burden of demonstrating that the medical 
 
         services obtained were causally related to the injury in order to 
 
         have the expenses reimbursed or paid.  Auxier v. Woodward State 
 
         Hospital, 266 N.W.2d 139, 144 (Iowa 1978).  Claimant has shown by 
 
         a preponderance of the evidence that she sustained an injury 
 
         while working for Iowa Power.  As a consequence, the necessary 
 
         nexus has been established and Iowa Power must provide medical 
 
         benefits to claimant pursuant to Iowa Code section 85.27 (1991).  
 
         In this instance, claimant has incurred over $40,000 in medical 
 
         services which have been paid by Share, claimant's group health 
 
         carrier.  Iowa Power is responsible for these charges.  Claimant 
 
         has also been responsible for paying co-payments in connection 
 
         with this care.  However, no amount was submitted as to 
 
         claimant's out of pocket cost in connection with her care.  
 
         Therefore no amounts will be awarded.
 
         
 
         order
 
         
 
              THEREFORE, it is ordered:
 
              1.  Iowa Power shall pay to claimant healing period benefits 
 
         for ninety-one (91) weeks consistent with the dates and times 
 
         described on the attachment to the prehearing order filed on 
 
         August 15, 1991 at the rate of two hundred four and 78/100 
 
         dollars ($204.78) for the injury to claimant's back.  As these 
 
         benefits have accrued, they shall be paid in a lump sum together 
 
         with statutory interest thereon pursuant to Iowa Code section 
 
         85.30 (1991).
 
              2.  Iowa Power shall pay to claimant permanent partial 
 
         disability benefits in the amount of seventy-five percent (75%) 
 
         at the rate of two hundred four and 78/100 dollars ($204.78) for 
 
         the injury to claimant's back with payment commencing on February 
 
         5, 1990.  As these benefits have accrued, they shall be paid in a 
 
         lump sum together with statutory interest thereon pursuant to 
 
         Iowa Code section 85.30 (1991).
 
              3.  Iowa Power shall have a credit in the amount of ten 
 

 
         
 
         EWING V. IOWA POWER & LIGHT
 
         Page  18
 
         
 
         
 
         
 
         
 
         
 
         
 
         point two eight five seven (10.2857) weeks against any amounts 
 
         owed.  Additionally, Iowa Power shall have a credit for seventeen 
 
         thousand four hundred sixteen and 31/100 dollars ($17,416.31) for 
 
         sick pay or disability income paid to claimant.  Finally, Iowa 
 
         Power will have a credit in the amount of forty thousand eight 
 
         hundred sixteen and 68/100 ($40,816.68) for a medical expenses 
 
         paid by them.
 
              4.  The costs of this action totaling nine hundred 
 
         eight-three and 25/100 dollars ($983.25) and the cost of the 
 
         shorthand reporter for the hearing shall be assessed to Iowa 
 
         Power pursuant to rule 343 IAC 4.33.
 
              5.  Iowa Power shall file claim activity reports as required 
 
         by rule 343 IAC 3.1.
 
              Signed and filed this ____ day of May, 1992.
 
         
 
         
 
         
 
         
 
                                            ________________________________
 
                                            ELIZABETH A. NELSON
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 

 
         
 
         EWING V. IOWA POWER & LIGHT
 
         Page  19
 
         
 
         
 
         
 
         
 
         
 
         
 
              Copies To:
 
         
 
         Mr Fredd J Haas
 
         Attorney at Law
 
         5001 SW 9th Street
 
         Des Moines Iowa 50315
 
         
 
         Mr Cecil L Goettsch
 
         Attorney at Law
 
         801 Grand Avenue
 
         Suite 3700
 
         Des Moines Iowa 50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1402.20 - 5-1803
 
                                          Filed May 28, 1992
 
                                          ELIZABETH A. NELSON
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            INEZ EWING,                   :
 
                                          :
 
                 Claimant,                :       File No. 861067
 
                                          :
 
            vs.                           :    A R B I T R A T I O N
 
                                          :
 
            IOWA POWER & LIGHT COMPANY,   :       D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,,           :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            5-1402.20
 
            Claimant had a preexisting condition in her back aggravated 
 
            by poor ergonomic conditions at work.  While receiving a 
 
            course of physical therapy treatments, a disk in claimant's 
 
            back was herniated.  The evidence showed that the physical 
 
            therapy and not a vague reference to a bathtub incident at 
 
            home caused the disk herniation.
 
            
 
            5-1803
 
            Claimant, a 32-year-old office worker with some post high 
 
            school training was awarded an industrial disability of 75 
 
            percent.  Claimant's injury was severe and it prevented her 
 
            from sitting, standing and moving about for substantial 
 
            periods of time.  However, claimant's employer was willing 
 
            to design a job for claimant to accommodate her 
 
            restrictions.  Claimant's only complaints after her release 
 
            from treatment were pain complaints.