BEFORE THE IOWA INDUSTRIAL COMMISSIONER            
 
            ____________________________________________________________
 
                                          :
 
            MICHAEL EAGAN,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 861276
 
            MIDWEST CARBONIC,             :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY CO.,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration upon claimant's 
 
            petition filed June 7, 1988.  Claimant sustained an injury 
 
            arising out of and in the course of his employment 
 
            stipulated to be August 5, 1987.  He now seeks benefits 
 
            under the Iowa Workers' Compensation Act from defendant 
 
            employer Midwest Carbonic and defendant insurance carrier 
 
            Aetna Casualty & Surety Company.
 
            
 
                 Hearing on the arbitration petition was had in Des 
 
            Moines, Iowa, on July 17, 1989.  The record consists of 
 
            joint exhibits 1 through 191, defendants' exhibits 1 through 
 
            7 (both inclusive) and the testimony of the following 
 
            witnesses:  claimant, Phil Price, Milton Chapman, Deborah 
 
            Determan and Diane Dooley.
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the prehearing report submitted at hearing, 
 
            the following issues have been stipulated:  that claimant 
 
            sustained an injury arising out of and in the course of his 
 
            employment with Midwest Carbonic on August 5, 1987; that the 
 
            injury caused both temporary and permanent disability, the 
 
            latter being an industrial disability to the body as a 
 
            whole; that the appropriate rate of weekly compensation is 
 
            $207.26; that defendants paid 101 weeks of compensation at 
 
            the stipulated rate on a voluntary basis prior to hearing.
 
            
 
                 Issues presented for resolution include:  the extent of 
 
            claimant's entitlement to compensation for healing period 
 
            and/or permanent disability; the extent of claimant's 
 
            entitlement to medical benefits; taxation of costs.
 

 
            
 
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                 With respect to medical benefits, the parties stipulate 
 
            that the providers of medical services or supplies would 
 
            testify that the expenses were reasonable and incurred for 
 
            reasonable and necessary treatment and defendants offer no 
 
            contrary evidence, but dispute whether the expenses were 
 
            causally connected to the work injury or authorized by 
 
            defendants.  The major issue relates to surgical procedures 
 
            and associated care performed by Maurice P. Margules, M.D., 
 
            on the basis of authorization.  Claimant asserts that 
 
            defendants failed to offer reasonable and necessary medical 
 
            treatment and therefore those expenses should be 
 
            compensable.
 
            
 
                 Claimant also asserts entitlement to permanent total 
 
            disability benefits as an odd-lot employee.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all of the evidence, finds:
 
            
 
                 Claimant was 40 years of age at the time of hearing, 
 
            having been born on August 16, 1948.  He has resided in 
 
            Creston, Iowa for most of his life.  Claimant dropped out of 
 
            school in the tenth grade after having attained very poor 
 
            grades.  He has never attained a General Equivalency 
 
            Diploma.
 
            
 
                 Claimant's work history, in addition to a stint in the 
 
            United States Army, includes employment as a carpenter, 
 
            millwright, construction worker, and work with defendant 
 
            wrapping, boxing and loading dry ice.  In addition, claimant 
 
            operated his own tavern for approximately ten years.  He has 
 
            a history of alcohol abuse.  Claimant has not worked since 
 
            the stipulated injury, having been terminated from his 
 
            employment with defendant by a telephone call during August, 
 
            1988.
 
            
 
                 Claimant asserts that he suffered no back injury prior 
 
            to August 5, 1987, although he admits to having strained 
 
            muscles on at least one occasion and visiting a chiropractor 
 
            for two treatments in approximately 1981 or 1982.
 
            
 
                 The work injury occurred on August 5, 1987, when 
 
            claimant was pulling approximately 5,000 pounds of dry ice 
 
            with a hand cart.  Claimant slipped and fell on a slippery 
 
            floor, landing on his buttocks.  Claimant worked the rest of 
 
            his shift, but suffered pain throughout the night.  On the 
 
            following day, he worked only five or ten minutes, then went 
 
            to visit his chiropractor.  At about that time, claimant 
 
            reported his injury to Milton Chapman, production manager.  
 
            Although Chapman did not intend to authorize treatment by 
 
            Dr. Margules, he was aware at that time that claimant was 
 
            visiting an out-of-town physician and did not tell him to 
 
            discontinue treatment with that physician or to contact 
 
            anyone else.  He conceded on cross-examination that he had 
 

 
            
 
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            no dispute with claimant's testimony that he simply advised 
 
            claimant to "get it fixed."
 
            
 
                 In any event, claimant visited Maurice P. Margules, 
 
            M.D., on August 14, 1987.  Dr. Margules' notes of August 16 
 
            (for admission to Jennie Edmundson Memorial Hospital 
 
            relative neurosurgical evaluation) reflect a history of 
 
            claimant slipping and falling to his left buttock, followed 
 
            by pain to the lumbar region and radiation of pain in the 
 
            right lower extremity.  Based on an initial impression of a 
 
            disc herniation at L5-S1 on the right, Dr. Margules ordered 
 
            complete studies to include x-rays, EMG and nerve conduction 
 
            studies and myeloradiculography.  Dr. Margules performed 
 
            lumbodorsal myeloradiculography on August 17, finding 
 
            evidence of a defect compatible with a disc herniation at 
 
            L4-5.  After tomography, Dr. Margules reached final 
 
            diagnosis of herniated lumbar disc at L4-5.  Surgery at that 
 
            level was scheduled for August 24, 1987.
 
            
 
                 Diane Dooley, a claims representative for defendant 
 
            Aetna, received notice of this incident on August 19, 1987.  
 
            She called claimant, reaching his mother, who advised that 
 
            claimant was in the hospital scheduled for surgery.  In a 
 
            telephone call of August 20, claimant advised that he was 
 
            seeing Dr. Margules and scheduled for surgery on the 24th.  
 
            However, Dooley requested a second opinion and claimant 
 
            agreed.
 
            
 
                 Accordingly, claimant was seen on August 27 by Jerrad 
 
            J. Hertzler, M.D., for consultation.  Dr. Hertzler wrote on 
 
            that date that his impression was of lumbar sprain with 
 
            referred pain into the right lower extremity.  He found 
 
            radiation in response to pin prick to be diffuse rather than 
 
            following a radicular pattern.  Reviewing the tomography and 
 
            myelogram studies, Dr. Hertzler found some disc bulging, but 
 
            no evidence that this was actually causing nerve root 
 
            compression.  He opined that claimant should be treated 
 
            conservatively with rest, mild physical therapy and muscle 
 
            relaxant and anti-inflammatory medications.  He found no 
 
            indication for surgery and felt that surgery might tend to 
 
            aggravate the condition.
 
            
 
                 Claimant was dissatisfied with this recommendation.  
 
            Defendant Aetna then made an appointment for an additional 
 
            evaluation by Scott B. Neff, D.O.  Dr. Neff saw claimant 
 
            shortly thereafter and wrote on September 3, 1987 that 
 
            tomography showed degenerative disease at two levels and may 
 
            show a bulging disc on the right, along with a nerve root 
 
            sheath shift on the right (a developmental problem).  
 
            Claimant had significant and severe muscle spasms diffusely 
 
            in the back with restricted motion and definite splinting, 
 
            certainly having significant discomfort.  Dr. Neff 
 
            recommended an EMG study, MRI study and repeat CT scan, 
 
            along with conservative treatment.  He thought surgery would 
 
            be warranted if the MRI and repeat CT confirmed herniated 
 

 
            
 
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            disc and conservative treatment failed, but thought that 
 
            disc removal at L5-S1 would leave claimant with a 
 
            degenerative and symptomatic disc at L4-5.
 
            
 
                 Claimant was then admitted for magnetic resonance 
 
            imaging on Dr. Neff's order on September 11, 1987.  MRI 
 
            showed moderately degenerated posterolaterally protruding 
 
            L4-5 and L5-S1 discs extending into the right lateral 
 
            recesses and showing mild compressive changes on the right 
 
            nerve roots at these levels, encroachment of the right 
 
            intervertebral neuroforamina at L4-5 and L5-S1 without high 
 
            grade stenosis.  No other significant abnormality was found.
 
            
 
                 Claimant was also seen by Dr. Neff's associate, William 
 
            R. Boulden, M.D.  Dr. Boulden performed a facet injection 
 
            which knocked out the majority of claimant's pain, leading 
 
            to the doctor's view that the best treatment would be disc 
 
            excision as well as fusion at L4 to the sacrum bilaterally.
 
            
 
                 Prior to claimant's examination by Dr. Hertzler, Diane 
 
            Dooley advised him that Dr. Margules was not an authorized 
 
            physician.  This injunction was repeated in a telephone 
 
            conversation of September 18, although claimant hung up the 
 
            telephone during that conversation when the topic of the 
 
            Institute for Low Back Care in Minneapolis, Minnesota came 
 
            up.  A nurse consultant had requested authorization for 
 
            evaluation at that institute, which was subsequently 
 
            authorized by defendants.  Claimant visited the institute on 
 
            September 28, 1987.
 
            
 
                 A letter of that date signed by Thomas W. Hennessey, 
 
            M.D., and Jayne E. Clark, M.D., noted that claimant had 
 
            decreased range of motion on forward flexion, extension, 
 
            rotation and lateral side bending, which all produced pain.  
 
            Sensation to pin prick was normal, but there was tenderness 
 
            over the entire lumbar spine and spasm of the lumbar 
 
            paravertebral musculature with trace sciatic notch 
 
            tenderness on the right.  Review of claimant's earlier CT 
 
            scan revealed a herniated nucleus pulposus at L5-S1, 
 
            slightly displacing but not impinging the right S1 nerve 
 
            root and central and right-sided protrusion of the L4-5 disc 
 
            impinging on the right L5 nerve root, confirmed by the MRI 
 
            scan which appeared to reveal a contained disc herniation.  
 
            Dr. Hennessey reviewed these studies and findings with 
 
            claimant and recommended a trial of physical therapy and 
 
            gravity lumbar traction, but claimant became angry and 
 
            walked out of the clinic.
 
            
 
                 As a result of this incident, Diane Dooley wrote 
 
            claimant on October 2, 1987 to specify that surgery was not 
 
            authorized at that time, but that claimant's designated 
 
            authorized treating physicians were Dr. Hennessey or Dr. 
 
            Boulden.  Claimant's attorney then wrote back on October 12 
 
            to confirm an earlier telephone conversation of October 8 to 
 
            the effect that claimant was comfortable only with Dr. 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            Margules and did not desire surgery at the hands of Dr. 
 
            Boulden or Neff because of a fear of surgery and because of 
 
            friends who had been dissatisfied with the results of 
 
            surgery performed by those physicians and expressing a 
 
            willingness to litigate the issue of reasonableness of 
 
            medical services under Iowa Code section 85.27.
 
            
 
                 Claimant was readmitted to the hospital on November 17, 
 
            1987.  Dr. Margules' examination of that date showed 
 
            evidence of marked rigidity of the lumbar spine with severe 
 
            spasm of the paravertebral lumbar musculature, loss of motor 
 
            function of the right foot and a slight area of hypoalgesia 
 
            in the S1 distribution on the right.  Excision of a disc at 
 
            L4-5 on the right was scheduled for November 19.  Claimant 
 
            was also seen at that time for consultation by John W. 
 
            Marshall, M.D.  Dr. Marshall's impression was of low back 
 
            pain with documented herniated disc at L4-5 on the right; 
 
            claimant was stable for surgery.  That surgery was 
 
            subsequently performed and claimant was discharged from the 
 
            hospital when he was found to be ambulatory on December 4, 
 
            1987.
 
            
 
                 Claimant was followed through March 1, 1988.  On March 
 
            10, Dr. Margules wrote that claimant had reached maximum 
 
            medical improvement and was rated as having sustained a 
 
            permanent partial physical disability of 10-15 percent of 
 
            the body as a whole.  Claimant was released to return to 
 
            sedentary employment.  On April 1, Dr. Margules wrote to 
 
            Terry Donahue of the Division of Vocational Rehabilitation 
 
            Services that claimant had sustained a permanent partial 
 
            physical disability of approximately 15 percent of the body 
 
            as a whole and that he should try to obtain a sedentary-type 
 
            of employment with a maximum weight lifting of 40 pounds.
 
            
 
                 However, claimant remained symptomatic.  Dr. Margules 
 
            developed an impression of radiculitis at S1 right due to 
 
            compression with possible disc herniation at L5-S1, 
 
            attributed to the work injury.  Magnetic resonance imaging 
 
            of July 18, 1988 was read by C. Morris, M.D., as showing 
 
            some posterior bulging of the disc at L4-5 and some 
 
            posterior bulging of disc material more to the right of 
 
            midline of L5-S1.  A myelogram performed the same date and 
 
            read by Creed Abell, M.D., demonstrated disc bulging at L4-5 
 
            and L5-S1; the possibility of slight disc herniation could 
 
            not be entirely excluded.  No detectable compromise of 
 
            exiting nerve roots was identified.
 
            
 
                 On July 31, Dr. Margules found there had been no 
 
            improvement in claimant's condition so he was readmitted due 
 
            to severe intractable pain in the right lower extremity.  
 
            Dr. Margules found marked spasm of the paravertebral lumbar 
 
            musculature and limited forward flexion of the lumbar spine 
 
            and a markedly positive Lasegue's sign on the right and 
 
            definite hypoalgesia in the S1 distribution on the right 
 

 
            
 
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            involving the plantar surface of the foot over its lateral 
 
            aspect.  Exploratory surgery of L5-S1 was scheduled for 
 
            August 2, 1988.  Dr. Marshall was again consulted, reaching 
 
            an impression of persistent low back pain probably due to 
 
            herniated disc at L5-S1 secondary to previous trauma.  The 
 
            surgery was described as excision of herniated lumbar disc, 
 
            L5-S1 interspace.  Evidence of a markedly degenerated disc 
 
            compressing the S1 root in the lateral recess of the 
 
            interspace was noted and a large amount of disc tissue was 
 
            excised.  Claimant made a progressive and satisfactory 
 
            recovery and was discharged on August 8, 1988 with a 
 
            scheduled return visit on September 7, 1988.  Final 
 
            diagnosis was of herniated lumbar disc, L5-S1 interspace, 
 
            right, due to trauma initially sustained on November 17, 
 
            1987 (presumably a misdated reference to the original work 
 
            injury).
 
            
 
                 On August 25, 1988, Dr. Margules wrote that claimant 
 
            had been evaluated the day before and, although making a 
 
            progressive and satisfactory recovery, had not yet reached 
 
            maximum medical improvement.  He further specified that the 
 
            work injury of August 5, 1987 necessitated both operative 
 
            procedures, and rated claimant as having sustained a 
 
            permanent partial physical disability of 20 percent of the 
 
            body as a whole.  As Dr. Margules was retiring from the 
 
            practice of neurosurgery, claimant's care was transferred to 
 
            Behrouz Rassekh, M.D.
 
            
 
                 Dr. Rassekh engaged in a telephone conversation of 
 
            March 6, 1989 with Deborah Determan of Rehabilitation 
 
            Professionals, Inc., and confirmed that conversation in 
 
            writing on March 30, 1989.  He confirmed that claimant had 
 
            reached maximum medical improvement and was released to 
 
            full-time work in the sedentary activity range.  It was 
 
            estimated that claimant could sit for two to three hours at 
 
            a time and that he should have the opportunity to alternate 
 
            sitting, standing and walking during the day.  However, it 
 
            was likely that after a return to work claimant could work 
 
            his way into a position in the medium work range involving 
 
            lifting 25 pounds frequently and 50 pounds maximum.  
 
            Claimant was given permission to participate in a work 
 
            hardening program.
 
            
 
                 On December 23, 1988, Dr. Rassekh had written 
 
            claimant's attorney to note that claimant had a failed-back 
 
            syndrome, part of which was related to the work injury and 
 
            part of which resulted to "instability relating to the 
 
            surgery."  He estimated that claimant had sustained a 
 
            permanent functional disability of the body as a whole of 15 
 
            percent.
 
            
 
                 Defendants attempted to provide rehabilitation services 
 
            to claimant through Rehabilitation Professionals, Inc.  This 
 
            organization performed testing in December, 1988 and 
 

 
            
 
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            February, 1989.  As per Dr. Rassekh's authorization, 
 
            claimant was scheduled for a work hardening program to be 
 
            conducted by Midwest Rehabilitation Services in Omaha, 
 
            Nebraska.  Claimant was to begin this program on May 1, 
 
            1989, but failed to appear.  Deborah Determan attempted to 
 
            reach him by telephone unsuccessfully.  On May 2, claimant 
 
            called Determan to advise that he would begin the program on 
 
            the following day.  However, he did not appear until May 9, 
 
            1989.  Claimant testified that this failure related to his 
 
            having been charged with operating a motor vehicle while 
 
            intoxicated.  His car was impounded and he lacked money.  
 
            Claimant unpersuasively asserted that he tried his best to 
 
            attend.  On May 15, claimant failed to appear, claiming that 
 
            he overslept due to back pain.  Physical therapist John M. 
 
            Dobler wrote on May 23, 1989 that claimant was seen for 
 
            flexibility and strengthening exercises on May 11, 12, 16, 
 
            17 and 18.  A conference was held on the latter date, but 
 
            claimant walked out.  Claimant reappeared on May 19 and 
 
            subjectively reported increased pain from participating in 
 
            the program.  All active motions of the lumbar spine were 
 
            thereupon decreased.  However, Dobler reported that claimant 
 
            demonstrated certain inconsistencies.  He reported pain in 
 
            the low back with pressure applied to his head and when his 
 
            shoulders and pelvis were rotated in the same plane.  
 
            Straight leg raising was greater in the sitting position 
 
            than in the supine position.  Claimant could not squat when 
 
            the activity was practiced as a part of his exercise 
 
            program, but did demonstrate ability to squat when putting 
 
            away exercise materials.  Since Dobler felt that effective 
 
            treatment and rehabilitation strategies were virtually 
 
            impossible to implement without understanding claimant's 
 
            inappropriate illness behavior, claimant was discontinued 
 
            from the program on May 19.
 
            
 
                 Vocational testing performed by Rehabilitation 
 
            Professionals, Inc., showed that claimant reflected average 
 
            to above average verbal and spatial ability, but motor 
 
            skills significantly below average.  Comparing claimant's 
 
            scores to the 65 occupational aptitude profiles, the 
 
            following profiles emerged in his medium aptitude range:  
 
            craft arts, security services, craft technology, attendant 
 
            services and child/adult care.  On wide-range achievement 
 
            tests, claimant showed a grade equivalent in reading of 8.1, 
 
            spelling of 6.2 and arithmetic of 5.3.  Determan concluded 
 
            that these scores would support short-term, occupation 
 
            specific technical training, either in a classroom or on the 
 
            job.  Remedial training would be required prior to community 
 
            college degree course work.  However, it is noteworthy that 
 
            claimant did not have his prescription glasses for testing, 
 
            so the recorded scores are presumably the very minimum he 
 
            should be able to accomplish.  Claimant's score on a 
 

 
            
 
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            nonverbal test of general learning ability was only in the 
 
            36th percentile.  A test of nonverbal general intellectual 
 
            ability used with adults who have literacy problems placed 
 
            claimant only in the 8th percentile.  Another test assessing 
 
            an individual's ability to follow verbal directions, which 
 
            requires a junior high academic level and was developed for 
 
            selection of industrial personnel, showed claimant in the 
 
            75th percentile.  A mechanical comprehension test used for 
 
            skilled trade jobs in the automobile industry showed 
 
            claimant in the 85th percentile.  An inventory of claimant's 
 
            occupational interests reflected moderately low to very low 
 
            interest in all areas except "enterprising," which showed an 
 
            average interest level.
 
            
 
                 Determan was of the view that claimant might be 
 
            employable in his area at an egg processing plant, as a ward 
 
            clerk at a hospital, a desk clerk at a hotel, as a security 
 
            guard, or possibly in a manufacturing position.  She 
 
            believed there were many other jobs potentially available if 
 
            claimant were to reach the levels of weight restrictions 
 
            expected by Dr. Rassekh, and particularly if he were to 
 
            relocate.  Determan conceded on cross-examination that 
 
            claimant's history of two surgical procedures make him less 
 
            employable, but felt that Dr. Rassekh's characterization of 
 
            failed-back syndrome with chronic pain would be less 
 
            important to potential employers than the actual medical 
 
            restrictions.  She agreed that she did not succeed in 
 
            getting claimant any referrals, but noted that claimant has 
 
            never contacted her to seek placement and that claimant's 
 
            impression is that he is not employable.
 
            
 
                 Claimant was also seen for vocational evaluation by 
 
            James T. Rogers of Midlands Rehabilitation Consultants, Inc.  
 
            Dr. Rogers wrote claimant's attorney on April 4, 1989, but 
 
            his letter reflected some inaccuracies as to claimant's 
 
            history (e.g., that claimant completed the tenth grade and 
 
            had been given a 50-pound weight restriction by Dr. 
 
            Rassekh).  Rogers took claimant's self-described limitations 
 
            into account, along with his employment history.  He did not 
 
            believe claimant to be a candidate to return to any of his 
 
            past positions with the possible exception of bartender 
 
            (Rogers apparently was not aware of the extent of claimant's 
 
            alcohol problem).  He suggested that claimant's 
 
            transferrable skills included the ability to deal with 
 
            customers, to make change, to use a cash register, to 
 
            conduct inventory, to work from detailed plans and 
 
            blueprints, and the ability to use hand and power tools 
 
            associated with the occupations of carpenter and millwright.  
 
            He suggested potential future job possibilities as cashier, 
 
            parking lot attendant, ticket taker, convenience store clerk 
 
            or bartender, but noted any of those jobs would require 
 
            selective placement and an allowance for claimant to 
 

 
            
 
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            alternate sitting and standing and avoiding bending and 
 
            lifting.  Training possibilities on the job might include 
 
            locksmith, small engine repair or other positions, but any 
 
            training program would need to consider claimant's 
 
            functional capacities.  He did not believe claimant to be 
 
            job ready or able to tolerate a full eight-hour work day as 
 
            claimant felt he must lie down two or three times each day 
 
            for about one hour and seemed very much focused on his pain.
 
            
 
                 Claimant testified to seeking employment in 
 
            approximately March, 1989, at a tavern, truck line, 
 
            construction company, motorcycle shop, hydraulic shop and 
 
            printing business.  On cross-examination, it became clear 
 
            that he looked for work only after being advised to do so by 
 
            his attorney after the receipt of defendants' 
 
            interrogatories.  All of claimant's efforts to obtain 
 
            employment were made during approximately a two-week span 
 
            prior to answering interrogatories on April 20, 1989.  No 
 
            attempts to seek employment have been made since that date.  
 
            Claimant also agreed that he has a greater net income 
 
            receiving workers' compensation benefits than was the case 
 
            when he worked.
 
            
 
                 During the hearing, claimant demonstrated both his gait 
 
            and his ability to hold his hand outstretched.  He 
 
            demonstrated a marked limp and mild tremors to the hand.  
 
            However, Milt Chapman testified that while he has observed 
 
            claimant walking carefully since his second surgery, he 
 
            never noticed a limp prior to hearing.
 
            
 
                 Claimant's criminal record includes an assault charge, 
 
            three convictions of operating a motor vehicle under the 
 
            influence of alcohol, one conviction for public 
 
            intoxication, and juvenile convictions for disturbing the 
 
            peace and disorderly conduct.  Because none of these 
 
            incidents necessarily reflects on claimant's reputation for 
 
            truthfulness, the undersigned does not find any of them to 
 
            impeach claimant's credibility.  Nonetheless, claimant was 
 
            not credible as a witness.  His demeanor did not inspire 
 
            confidence in his truthfulness.  Claimant conceded that he 
 
            knowingly signed and filed numerous fraudulent tax returns 
 
            while operating his own tavern.  It appears that he 
 
            developed a limp that did not preexist the arbitration 
 
            hearing.  His testimony that he did not drink while on the 
 
            job was contradicted by his own witness, Phil Price.  
 
            Claimant clearly minimized his problems with alcohol in 
 
            reporting his history to various physicians and 
 
            rehabilitation counselors.  He denied that alcohol affected 
 
            his work, but the testimony of Milt Chapman and Phil Price 
 
            to the contrary is much more persuasive.
 
            
 
                 It is generally held that claimant's testimony is 
 
            unreliable and that he lacks motivation to return to gainful 
 
            employment or to physically rehabilitate himself.
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Claimant presented evidence of accruing unreimbursed 
 
            medical expenses of $16,256.03.  Of this, a total of $715.00 
 
            was accrued between August 14 and August 21, 1987 (with 
 
            Bluffs Neurological Associates, Dr. Margules).  It is held 
 
            that these expenses were impliedly authorized by Milton 
 
            Chapman, claimant's production manager.  All of the other 
 
            unreimbursed medical expenses were unauthorized by 
 
            defendants and were accrued in the knowledge that they were 
 
            unauthorized.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The parties agree that claimant sustained an injury 
 
            arising out of and in the course of his employment which 
 
            caused temporary and permanent disability.  The extent of 
 
            each is disputed.
 
            
 
                 Under Iowa Code section 85.34(1), healing period is 
 
            compensable beginning on the date of injury and until the 
 
            employee has returned to work, it is medically indicated 
 
            that significant improvement from the injury is not 
 
            anticipated, or until the employee is medically capable of 
 
            returning to substantially similar employment, whichever 
 
            first occurs.
 
            
 
                 Claimant has not returned to his work and has not 
 
            recovered to the extent necessary to accept substantially 
 
            equivalent employment.  Therefore, his healing period is 
 
            held to have ended at the point he reached maximum medical 
 
            improvement.  Although Dr. Margules was of the view that 
 
            claimant had reached maximum improvement following his first 
 
            surgery, it is clear in retrospect that this opinion was 
 
            incorrect, since claimant required further surgery at an 
 
            additional level of his spine.  Claimant had not reached 
 
            maximum medical improvement at the time that his treating 
 
            physician, Dr. Margules, retired from practice.  Dr. Rassekh 
 
            opined that claimant reached maximum medical improvement as 
 
            of March 6, 1989.  It is held that this ended the healing 
 
            period, which totals 82 weeks, 6 days.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 Dr. Rassekh released claimant to full-time work in the 
 
            sedentary activity range, estimating that he could sit for 
 
            two to three hours at a time as long as he had the 
 
            opportunity to alternate sitting, standing and walking 
 
            during the day.  He did not appear to give claimant a 
 
            specific weight limitation, but felt that he could work his 
 
            way into a position in the medium work range (25 pounds 
 
            frequently, 50 pounds maximum) after a return to work.  
 
            However, Dr. Margules had previously given claimant a 
 
            40-pound permanent lifting restriction after the first 
 
            surgery, so this would appear to be the maximum weight 
 
            claimant could be expected to lift (having been imposed by 
 
            the treating surgeon) even if he did work himself back to a 
 
            higher level of functioning.
 
            
 
                 However, claimant has not demonstrated a high level of 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            
 
            motivation to reach a higher level of functioning.  While he 
 
            has not reached the level where he might take employment in 
 
            a medium work range situation, this appears to be due to his 
 
            own election.  The undisputed medical evidence is that it 
 
            was "likely" that claimant could work himself into such a 
 
            position after a return to work.  An award should not be 
 
            based on claimant's physical condition if that condition is 
 
            self-inflicted through lack of motivation.  It is more 
 
            appropriate to evaluate claimant's industrial disability on 
 
            the basis of his medically-expected level of functioning had 
 
            he demonstrated the motivation necessary to reach that 
 
            level.
 
            
 
                 Nonetheless, it is clear that claimant has substantial 
 
            industrial disability.  The requirement that he alternate 
 
            sitting, standing and walking during the day coupled with a 
 
            weight restriction of 40 pounds clearly forecloses claimant 
 
            from much of the employment he held prior to the work injury 
 
            and will require selective placement with an accommodating 
 
            employer in many other positions.  Obviously, claimant's 
 
            educational background works against him in seeking a new 
 
            position and severely limits the type of retraining he might 
 
            seek.  The fact that defendants failed to provide him 
 
            employment following the work injury is a factor supporting 
 
            increased industrial disability.
 
            
 
                 Claimant asserts that he is an odd-lot employee under 
 
            the doctrine adopted in Guyton v. Irving Jensen Co., 373 
 
            N.W.2d 101 (Iowa 1985).  A worker is an odd-lot employee 
 
            when a work injury makes him incapable of work in any 
 
            well-known branch of employment; when the only services he 
 
            can perform are so limited in quality, dependability or 
 
            quantity that a reasonably stable market for them does not 
 
            exist.  When claimant makes a prima facie case of total 
 
            permanent disability by showing that he is not employable in 
 
            the competitive labor market, the burden to produce evidence 
 
            of regularly available suitable employment shifts to the 
 
            employer.  However, claimant has failed to establish that he 
 
            is not employable in the competitive labor market.  His few 
 
            feeble attempts at seeking work were obviously motivated by 
 
            this litigation and in particular the receipt of 
 
            interrogatories inquiring into his efforts to find work.  In 
 
            any event, as has been noted, it is inappropriate to 
 
            consider claimant's current condition since it is in part 
 
            self-imposed through the lack of effort to rehabilitate 
 
            himself.
 
            
 
                 Taking into account the record as a whole and these 
 
            factors in particular, it is held that claimant has 
 
            sustained a permanent partial disability to the extent of 75 
 
            percent of the body as a whole, or 375 weeks.  The 
 
            commencement date shall be March 7, 1989.
 
            
 
                 Also at issue are the medical costs of Dr. Margules and 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            
 
            associated treatment, totalling some $16,256.03.  Defendants 
 
            assert lack of authorization as a defense.  Iowa Code 
 
            section 85.27 provides, in pertinent part:
 
            
 
                 For purposes of this section, the employer is 
 
                 obliged to furnish reasonable services and 
 
                 supplies to treat an injured employee, and has the 
 
                 right to choose the care.  The treatment must be 
 
                 offered promptly and be reasonably suited to treat 
 
                 the injury without undue inconvenience to the 
 
                 employee.  If the employee has reason to be 
 
                 dissatisfied with the care offered, the employee 
 
                 should communicate the basis of such 
 
                 dissatisfaction to the employer, in writing if 
 
                 requested, following which the employer and the 
 
                 employee may agree to alternate care reasonably 
 
                 suited to treat the injury.  If the employer and 
 
                 employee cannot agree on such alternate care, the 
 
                 commissioner may, upon application and reasonable 
 
                 proofs of the necessity therefor, allow and order 
 
                 other care.  In an emergency, the employee may 
 
                 choose the employee's care at the employer's 
 
                 expense, provided the employer or the employer's 
 
                 agent cannot be reached immediately.
 
            
 
                 Claimant's initial treatment by Dr. Margules totalling 
 
            $715.00 between August 14 and August 21 were impliedly 
 
            authorized by Milton Chapman, claimant's production manager.  
 
            Claimant shall be awarded these expenses.  However, the 
 
            authorization defense is valid with respect to Dr. Margules' 
 
            further treatment.  Both Drs. Hennessey and Boulden were 
 
            identified as authorized treating physicians.  While Dr. 
 
            Hennessey advised conservative treatment, Dr. Boulden 
 
            expressed willingness to undertake surgery.  Diane Dooley's 
 
            letter to claimant of October 2, 1987 is of serious concern, 
 
            since it specifies that "we will not be able to authorize 
 
            surgery at this time" yet identifies both Dr. Hennessey and 
 
            Dr. Boulden as designated authorized treating physicians.  
 
            Since Dr. Boulden recommended surgery, surgery at his hands 
 
            would have been authorized, this letter notwithstanding.  
 
            However, it is clear from claimant's attorney's subsequent 
 
            letter that claimant did not desire surgery from Dr. Boulden 
 
            in any event.  A review of the whole record shows that the 
 
            confusing and inconsistent letter from Diane Dooley was not 
 
            the factor that caused claimant to return to Dr. Margules, 
 
            but that his dissatisfaction with Dr. Boulden was the true 
 
            reason.  There is no showing whatsoever that Dr. Boulden is 
 
            not a qualified surgeon.  As he offered surgery, it is 
 
            unnecessary to determine whether the conservative care 
 
            offered by Dr. Hennessey was "reasonably suited to treat the 
 
            injury without undue inconvenience to the employee."  
 
            Claimant did not make application to this office for 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            
 
            alternate care before electing either surgery with Dr. 
 
            Margules.  Therefore, while the undersigned specifically 
 
            disapproves of the confusing and inconsistent language 
 
            employed by Ms. Dooley, it is established that defendants 
 
            admitted liability for the injury and offered a choice of 
 
            either conservative or surgical treatment with two 
 
            physicians.  Defendants are entitled to choose the care, so 
 
            long as it is offered promptly and is reasonably suited to 
 
            treat the injury without undue inconvenience.  Claimant 
 
            knowingly sought unauthorized medical benefits and the 
 
            defense of lack of authorization must be held valid.
 
            
 
                 Costs sought by claimant include a vocational 
 
            evaluation by James Rogers totalling $345.00.  Claimant 
 
            shall be allowed $150.00 of that total as an expert witness 
 
            fee pursuant to Iowa Code section 622.72.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants are to pay unto claimant eighty-two point 
 
            eight five seven (82.857) weeks of healing period benefits 
 
            at the stipulated rate of two hundred seven and 26/100 
 
            dollars ($207.26) per week commencing on the date of injury 
 
            and totalling seventeen thousand one hundred seventy-two and 
 
            94/100 dollars ($17,172.94).
 
            
 
                 Defendants shall pay claimant three hundred 
 
            seventy-five (375) weeks of permanent partial disability 
 
            benefits at the stipulated rate of two hundred seven and 
 
            26/100 dollars ($207.26) per week commencing March 7, 1989 
 
            and totalling seventy-seven thousand seven hundred 
 
            twenty-two and 50/100 dollars ($77,722.50).
 
            
 
                 Defendants shall pay medical expenses to Bluffs 
 
            Neurological Associates totalling seven hundred fifteen and 
 
            00/100 dollars ($715.00).
 
            
 
                 Defendants shall have credit for all payments 
 
            voluntarily made to claimant prior to the filing of this 
 
            decision.
 
            
 
                 Any accrued weekly benefits shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30, but interest shall not accrue on medical 
 
            expenses.
 
            
 
                 Costs of this action shall be assessed to defendants 
 
            pursuant to Division of Industrial Services Rule 343-4.33, 
 
            but costs associated with James Rogers' vocational 
 
            evaluation shall be limited to one hundred fifty and 00/100 
 
            dollars ($150.00).
 
            
 
                 Defendants shall file claim activity reports as 
 
            requested by this agency pursuant to Division of Industrial 
 
            Services Rule 343-3.1.
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Sheldon M. Gallner
 
            Attorney at Law
 
            803 Third Avenue
 
            P.O. Box 1588
 
            Council Bluffs, Iowa  51502
 
            
 
            Ms. Lorraine J. May
 
            Attorney at Law
 
            4th Floor, Equitable Building
 
            Des Moines, Iowa 50309
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1803, 2501
 
                                               Filed August 8, 1990
 
                                               DAVID RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MICHAEL EAGAN,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 861276
 
            MIDWEST CARBONIC,             :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY CO.,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            5-1803
 
            Claimant awarded healing period and 75% body as a whole 
 
            permanency.
 
            
 
            2501
 
            Where defendants' authorized two physicians, one of whom 
 
            recommended surgery, and there was no showing that physician 
 
            was not qualified, claimant's election to undergo surgery 
 
            with physician known to be unauthorized was found not 
 
            compensable.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DEVIN PIIPPO,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 861388
 
            KELLUM INTERIORS,             :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon claimant's 
 
            petition filed June 30, 1988.  Claimant allegedly sustained 
 
            a traumatic injury to his back while moving a piano on June 
 
            12, 1987, and now seeks benefits under the Iowa Workers' 
 
            Compensation Act from his employer, Kellum Interiors, and 
 
            its insurance carrier, Employers Mutual Companies.
 
            
 
                 Hearing on the arbitration petition was had in Mason 
 
            City, Iowa, on March 26, 1990.  The record consists of 
 
            claimant's exhibits 1 through 5, defendants' exhibits A 
 
            through J and the testimony of claimant and Kathye Gaines.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report, the parties have 
 
            stipulated:  that an employment relationship existed between 
 
            claimant and employer at the time of the alleged injury; 
 
            that if claimant has suffered permanent disability resulting 
 
            from a compensable injury, it is an industrial disability to 
 
            the body as a whole; that the appropriate rate of weekly 
 
            benefits is $92.58; that medical benefits are no longer in 
 
            dispute; that defendants paid one week, four days of 
 
            compensation at the stipulated rate prior to hearing.
 
            
 
                 However, the rate stipulated to by the parties does not 
 
            exist with respect to a single individual entitled to one 
 
            exemption (as the parties also stipulated) in the July 1, 
 
            1986 schedule published by the commissioner.  The closest 
 
            rate is $92.30 based on an average weekly wage of $140.00, 
 
            and will be adopted in this decision.
 
            
 
                 Issues presented for resolution include:  whether 
 
            claimant sustained an injury arising out of and in the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            course of his employment with Kellum Interiors on June 12, 
 
            1987; whether the injury caused permanent or temporary 
 
            disability, the extent thereof and the commencement date of 
 
            the former; taxation of costs.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all of the evidence, finds:
 
            
 
                 Claimant, age 24 at hearing, is a 1984 high school 
 
            graduate and is currently in the second year of a business 
 
            course at community college.  He plans to attend college 
 
            when the course is completed.
 
            
 
                 Claimant worked as a farmhand on a part-time basis 
 
            while in high school, and has since been employed by a gas 
 
            station, a meat packing business, and by defendant Kellum 
 
            Interiors from June 1986 until July 1987.  He began that 
 
            work as a part-time employee, eventually going full time.  
 
            His job involved working in the warehouse, loading design 
 
            materials and helping set those up in residences.
 
            
 
                 On June 12, 1987, claimant and a helper delivered a 
 
            three-piece sectional sofa and various accessories to a 
 
            residence under the direction of an interior designer.  The 
 
            designer asked claimant and his assistant to turn a grand or 
 
            baby grand piano to face another direction.  Claimant felt 
 
            no immediate pain at that time, but developed pain in his 
 
            back while loading the van and subsequently found himself 
 
            unable to continue driving the vehicle back to Mason City, 
 
            the point of origination.  He immediately reported this 
 
            incident to defendant's office manager, Kathye Gaines.
 
            
 
                 However, a standard calendar shows that June 12, 1987 
 
            fell on a Friday.  Claimant's time card for the week in 
 
            question shows that he worked a full eight hours on 
 
            Thursday, but no more that week.  Claimant credibly 
 
            testified that he was bedridden for several days after the 
 
            injury.  Therefore, it appears the injury actually occurred 
 
            on June 11, 1987.
 
            
 
                 During the next six weeks, claimant worked 22.5, 13.25, 
 
            25.75, 31.75, 27.25 and 6.75 hours, respectively.  Claimant 
 
            suffered severe back pain and numbness in both legs during 
 
            much of this time and worked various light-duty jobs.  
 
            Defendant was unable to keep him employed at his regular 
 
            work, given medical restrictions discussed below, and 
 
            eventually hired a replacement.  Claimant was offered 
 
            continued work of fewer hours on a part-time basis mowing 
 
            lawns and the like, but refused and the employment 
 
            relationship came to an end.
 
            
 
                 Prior to this incident, claimant had never suffered a 
 
            back injury, although he did complain of back soreness from 
 
            weight lifting to Kathye Gaines just a few days prior to the 
 
            injury.  Since he continued working, this soreness was 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            apparently not disabling.
 
            
 
                 Claimant was first seen by Robert O. Gross, D.O., on 
 
            June 19, 1987.  Dr. Gross was given a history of a back 
 
            injury sustained on or about June 11.  Dr. Gross kept 
 
            claimant off work through June 26 and then released him to 
 
            light-duty employment.  He again saw claimant on July 7 and 
 
            July 30 and found that claimant had improved, but did not 
 
            release him to full-duty work.
 
            
 
                 Claimant was subsequently treated by Sterling J. 
 
            Laaveg, M.D., who saw him on approximately three occasions.  
 
            On December 28, 1987, Dr. Laaveg reported that claimant had 
 
            been having some aching pain in his back while lifting for a 
 
            few days to a week prior to the piano incident, after which 
 
            he began having severe intermittent low back pain.  He 
 
            reported that a lumbosacral spine series was completely 
 
            normal and believed claimant to be suffering from recurrent 
 
            low back pain of a mechanical nature possibly secondary to 
 
            degenerative disc disease or degenerative facet syndrome 
 
            following the sprain.  He began claimant on physical therapy 
 
            and believed it too early to do a final physical impairment 
 
            rating, releasing claimant to work with restrictions against 
 
            lifting over 25 pounds, repetitious bending or twisting and 
 
            prolonged standing or sitting.
 
            
 
                 On February 8, 1988, Dr. Laaveg reported that claimant 
 
            was slowly improving and left restrictions in place.
 
            
 
                 On March 23, 1988, Dr. Laaveg reported that claimant 
 
            had reached maximum healing.  He remained neurologically 
 
            intact, but computerized tomography showed central bulging 
 
            discs mild to moderate at L4-5 and L5-S1 without impingement 
 
            on the nerve roots, indicating degenerative disc disease at 
 
            those levels.  Dr. Laaveg opined that claimant had a five 
 
            percent impairment of the whole person related to his back.  
 
            Final medical restrictions were against carrying over 50 
 
            pounds or lifting over 35 pounds from the floor, against 
 
            frequent bending or twisting and against prolonged sitting 
 
            or standing of over two hours without being able to change 
 
            positions.  Claimant was released on a "PRN" basis and has 
 
            not been treated since.
 
            
 
                 Claimant was also seen for evaluation by Thomas 
 
            Carlstrom, M.D., who testified by deposition taken October 
 
            2, 1989.  Dr. Carlstrom is a board-certified neurosurgeon.
 
            
 
                 Dr. Carlstrom found that claimant had a normal 
 
            neurological examination and that an MRI scan done shortly 
 
            after he was seen was normal.  He diagnosed symptoms of 
 
            myofascial low back pain and recommended no specific 
 
            treatment.  In a letter of July 13, 1989 (claimant was seen 
 
            on June 29), he reported that this diagnosis appeared to be 
 
            related to the 1987 lifting incident and felt that claimant 
 
            had probably reached maximum medical benefit in fall 1987, 
 
            probably about the middle of September.  He reported that 
 
            claimant had diminished range of motion of the back and had 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            sustained a three percent impairment to the body as a whole.  
 
            Further, Dr. Carlstrom recommended that claimant not lift 
 
            greater than about 35-40 pounds or 15 pounds on a repetitive 
 
            basis and should avoid prolonged sitting or standing over 
 
            about one hour in any one position.
 
            
 
                 Based on a hypothetical question that claimant made no 
 
            complaints of back pain following the incident and continued 
 
            to work for several days afterwards without incidence of 
 
            complaint or disability, Dr. Carlstrom indicated that no 
 
            causal relationship would exist between the work injury and 
 
            claimant's present condition.  However, this opinion must be 
 
            disregarded because the assumed facts are in error.  
 
            Claimant made complaint on the day of injury and was 
 
            bedridden for several days thereafter.  Dr. Carlstrom also 
 
            opined that claimant's complaints of pain were true.
 
            
 
                 Claimant currently complains that he is unable to 
 
            participate in various sports to the degree that he could 
 
            before the work injury and that he continues to suffer from 
 
            a sore back and numbness in the legs upon prolonged sitting.
 
            
 
                 Claimant has not shown himself to be particularly 
 
            motivated to return to work, admitting in his deposition 
 
            that his search for work after applying for Job Service 
 
            benefits (on the day his employment with defendant 
 
            terminated) was "[m]ore or less just to collect the 
 
            unemployment."
 
            
 
                    
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on or about June 
 
            11, 1987 which arose out of and in the course of his 
 
            employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. School Dist., 
 
            246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 
 
            405-406 of the Iowa Report.  See also Sister Mary Benedict 
 
            v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and 
 
            Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 
 
            (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe v. DeSoto Consol. School Dist., 246 Iowa 402, 
 
            68 N.W.2d 63 (1955). 
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. School 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure v. Union, 
 
            et al., Counties, 188 N.W.2d 283 (Iowa 1971); Musselman v. 
 
            Cent. Tel. Co., 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 
 
                 occupational disease under the Workmen's 
 
                 Compensation Act, yet an injury to the health may 
 
                 be a personal injury.  [Citations omitted.]  
 
                 Likewise a personal injury includes a disease 
 
                 resulting from an injury....The result of changes 
 
                 in the human body incident to the general 
 
                 processes of nature do not amount to a personal 
 
                 injury.  This must follow, even though such 
 
                 natural change may come about because the life has 
 
                 been devoted to labor and hard work.  Such result 
 
                 of those natural changes does not constitute a 
 
                 personal injury even though the same brings about 
 
                 impairment of health or the total or partial 
 
                 incapacity of the functions of the human body. 
 
            
 
                    ....
 
                 
 
                 A personal injury, contemplated by the Workmen's 
 
                 Compensation Law, obviously means an injury to the 
 
                 body, the impairment of health, or a disease, not 
 
                 excluded by the act, which comes about, not through the 
 
                 natural building up and tearing down of the human body, 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 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 on or about 
 
            June 11, 1987 is causally related to the disability on which 
 
            he now bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 
 
            516, 133 N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 
 
            Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
            insufficient; a probability is necessary.  Burt v. John 
 
            Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
            (1955).  The question of causal connection is essentially 
 
            within the domain of expert testimony.  Bradshaw v. Iowa 
 
            Methodist Hosp., 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. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 Claimant's credible testimony in conjunction with 
 
            surrounding facts (including his prompt report of the injury 
 
            to Kathye Gaines) establishes that he developed back pain 
 
            shortly following the piano-moving incident described above.  
 
            Even though claimant had complained of back soreness 
 
            following weight lifting during the several days before this 
 
            incident (as shown by the testimony of Kathye Gaines and the 
 
            history given Dr. Laaveg), he continued to work and this was 
 
            apparently not disabling.  Quite dramatically, he found 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            himself unable to drive the company truck back to Mason City 
 
            and was bedridden for several days thereafter.  There is no 
 
            question but that claimant was in the performance of his 
 
            assigned duties while moving the piano.  The incident itself 
 
            gave rise to an injury arising out of and in the course of 
 
            his employment and, as shown by the opinion of Dr. Laaveg, 
 
            is causally related to his current state of ill being.  Dr. 
 
            Carlstrom's suggestion to the contrary is unpersuasive 
 
            because it was based on incorrect facts in a hypothetical 
 
            question.
 
            
 
                 Claimant has met his burden of proof in establishing an 
 
            injury arising out of and in the course of his employment 
 
            which is causally related to his current disability.
 
            
 
                 Under Iowa Code section 85.34(1), healing period is 
 
            compensable beginning on the date of injury and until the 
 
            employee has returned to work, it is medically indicated 
 
            that significant improvement from the injury is not 
 
            anticipated, or until the employee is medically capable of 
 
            returning to substantially similar employment, whichever 
 
            first occurs.
 
            
 
                 Although claimant continued to work for several weeks 
 
            after his initial period of being bedridden, it is clear 
 
            that he had not truly healed from the work injury, but was 
 
            merely "toughing it out."  Healing period can be interrupted 
 
            or intermittent.  Willis v. Lehigh Portland Cement Co., Vol. 
 
            2-1, State of Iowa Industrial Commissioner Decisions 485 
 
            (1984).  Claimant may never be medically capable of 
 
            returning to substantially similar employment because of his 
 
            restrictions against lifting, bending and twisting and 
 
            cannot be said to have returned to this employment because 
 
            the employment came to an end.  In a letter of March 17, 
 
            1988, Kathye Gaines reported that Kellum Interiors did not 
 
            then or ever would have a job available that did not entail 
 
            lifting of "under" 25 pounds (presumably a scrivener's 
 
            error), repetitious bending and twisting or prolonged 
 
            sitting and standing.  Accordingly, the healing period must 
 
            end at the time that significant improvement from the injury 
 
            is not anticipated.
 
            
 
                 Defendants assert that Dr. Carlstrom's opinion 
 
            delivered much later in point of time should be dispositive 
 
            of this issue.  Dr. Carlstrom speculated that claimant had 
 
            probably reached maximum recovery in approximately 
 
            September, 1987.  However, the treating physician continued 
 
            to see improvement for many months afterwards; Dr. Laaveg's 
 
            opinion is thus far more reliable in assessing healing 
 
            period.  It is held that claimant's healing period ended on 
 
            March 23, 1988, pursuant to Dr. Laaveg's opinion of that 
 
            date.  Healing period benefits shall therefore be awarded 
 
            from June 12 (although the injury was on the 11th, claimant 
 
            worked the balance of that day), 1987 through March 23, 
 
            1988, or 40 weeks, 6 days.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 However, defendants shall be granted dollar-for-dollar 
 
            credit for claimant's wages earned from Kellum Interiors 
 
            during the weeks following the injury, totalling $509.00.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, 1985).
 
            
 
                 Claimant is unable now or for the foreseeable future to 
 
            return to work similar to that he was performing at the time 
 
            of his work injury.  Defendants have been unable to keep him 
 
            employed in any capacity, which in and of itself can justify 
 
            an award of industrial disability.  McSpadden v. Big Ben 
 
            Coal Co., 288 N.W.2d 181 (Iowa 1980).  Drs. Carlstrom and 
 
            Laaveg are rather close in their assessments as to 
 
            claimant's impairment (three percent and five percent, 
 
            respectively) and medical restrictions, although Dr. 
 
            Carlstrom added that claimant should avoid lifting over 
 
            about 15 pounds on a repetitive basis.  Claimant has 
 
            previously worked in essentially manual types of jobs in 
 
            farming, gas station work, the meat packing industry and his 
 
            employment with defendant.  His restrictions may not prevent 
 
            him from walking beans as a farm worker, but very probably 
 
            would interfere with all of the other jobs claimant has held 
 
            during his short working life.  Claimant is clearly 
 
            foreclosed from many of the sorts of jobs he could have held 
 
            prior to the work injury independently due to the lifting 
 
            restrictions, twisting and bending restrictions and 
 
            prolonged sitting/standing restrictions.
 
            
 
                 On the other hand, claimant is relatively youthful and 
 
            appears to be of an intelligence very suitable for extensive 
 
            retraining and further education.  Although defendants 
 
            cannot take credit for claimant's furtherance of his 
 
            education because they have not contributed thereto, Shirley 
 
            v. Shirley Ag Serv., file number 811686 (Arb. Decn., July 3, 
 
            1989), claimant's intelligence and suitability for 
 
            retraining is a factor tending to show lessened industrial 
 
            disability.  Claimant's motivation to return to work is also 
 
            questionable.
 
            
 
                 Considering these factors in specific and the record in 
 
            general, it is held that claimant has sustained an 
 
            industrial disability equivalent to 25 percent of the body 
 
            as a whole, or 125 weeks.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay unto claimant forty point eight 
 
            five seven (40.857) weeks of healing period benefits at the 
 
            rate of ninety-two and 30/100 dollars ($92.30) per week 
 
            commencing June 12, 1987 and totalling three thousand seven 
 
            hundred seventy-one and 10/100 dollars ($3,771.10).
 
            
 
                 Defendants shall pay unto claimant one hundred 
 
            twenty-five (125) weeks of permanent partial disability 
 
            benefits at the rate of ninety-two and 30/100 dollars 
 
            ($92.30) per week commencing May 24, 1988 and totalling 
 
            eleven thousand five hundred thirty-seven and 50/100 dollars 
 
            ($11,537.50).
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Defendants shall have credit of five hundred nine and 
 
            00/100 dollars ($509.00) for wages paid to claimant 
 
            following the work injury and for all benefits paid 
 
            voluntarily prior to hearing.
 
            
 
                 All accrued benefits shall be paid in a lump sum with 
 
            interest pursuant to Iowa Code section 85.30.
 
            
 
                 The costs of this action shall be assessed to 
 
            defendants pursuant to 343 IAC 4.33.
 
            
 
                 Defendants shall file claim activity reports as 
 
            requested by this agency pursuant to 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Mark A. Wilson
 
            Attorney at Law
 
            30 Fourth Street NW
 
            P.O. Box 1953
 
            Mason City, Iowa  50401
 
            
 
            Mr. Marvin E. Duckworth
 
            Attorney at Law
 
            Suite 111, Terrace Center
 
            2700 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1703; 3002
 
                           Filed December 5, 1990
 
                           DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            DEVIN PIIPPO,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :         File No. 861388
 
            KELLUM INTERIORS,   :
 
                      :      A R B I T R A T I O N
 
                 Employer, :
 
                      :         D E C I S I O N
 
            and       :
 
                      :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            3002
 
            Parties stipulated to a non-existent rate.  The closest 
 
            actual rate for claimant's marital status and exemptions was 
 
            imposed.
 
            
 
            1703
 
            Defendants granted dollar-for-dollar credit for wages earned 
 
            during several weeks following injury.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARY ANN HASPER,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 861486
 
            SHEAFFER EATON,               :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Mary Ann Hasper, against her employer, Sheaffer 
 
            Eaton, and its insurance carrier, Aetna Casualty & Surety 
 
            Company.  The record consists of the testimony of claimant 
 
            and the testimony of Judy Roberts, Nancy M. Davison, Phyllis 
 
            E. Box and Ardith Rump.  Additionally, the record consists 
 
            of claimant's exhibits 1-23 and defendants' exhibits 1, 2 
 
            and 5-9.
 
            
 
                                      issues
 
            
 
                 The 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; and, 3) 
 
            whether claimant is entitled to permanent partial disability 
 
            benefits.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant had a long history of back problems.  She wore 
 
            a back brace from age 14-17.  In April of 1987, claimant was 
 
            working as a packing light operator.  Her duties included 
 
            stuffing cartons, placing cartons on pallets, relocating 
 
            orders and pushing skids.  In April of 1987, claimant 
 
            testified she was bent over and ready to pick up a box of 
 
            typing paper when she felt a pop in her back.  She testified 
 
            she reported the incident to Nancy Davison, supervisor in 
 
            shipping.  Claimant testified she told Ms. Davison she did 
 
            not need to see the plant nurse because her pain subsided on 
 
            the same day.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 Ms. Davison testified she had no recollection of 
 
            claimant reporting a back injury in April of 1987.  Ms. 
 
            Davison testified at hearing that if an employee reports an 
 
            on-the-job injury, she sends the employee to the nurse, or 
 
            else she personally escorts the injured employee to the 
 
            nurse.  The supervisor also testified that she writes the 
 
            injury on her desk calendar.  The above procedures were not 
 
            performed in April of 1987, according to Ms. Davison's 
 
            testimony.
 
            
 
                 Claimant testified she continued to work until August 
 
            3, 1987.  At that point she requested permission from Mike 
 
            Krieger, warehouse manager, to see the plant nurse.  The 
 
            nurse's notes for that day reflect:
 
            
 
                 8-3-87  Employee states that approx. 3 weeks ago 
 
                    she            told her foreman her back was 
 
                    hurting but she          did not clearly 
 
                    indicate it was due to her job.         She 
 
                    packs orders which involves a lot of                   
 
                    lifting.  On 7/31/87 she saw Dr DePriest               
 
                    who advised her to see her company doctor To Dr        
 
                    Wenger-Keller - lite duty for 2 weeks & start          
 
                    therapy                         P.Box, R.N.
 
            
 
                 Claimant's medical records from her personal physician, 
 
            John DePriest, M.D., indicate for July 31, 1987:
 
            
 
                 7/31/87
 
            SUBJECTIVE:  C/o low back pain x 4 months, more 
 
            severe            last 3 weeks.  Says the low 
 
            back ache is continuous at present time.  
 
            Interfreres [sic] with her sleep.  Has been 
 
            alternating local moist heat and then ice packs.  
 
            Has a history of back problems and did wear a back 
 
            brace at age 14 to 17 for possible scoliosis.  
 
            Whenever she has to do any heavy lifting she has 
 
            to be careful about aggravting [sic] her lower 
 
            back.  Has been using some Advil and Wygesic.  It 
 
            does relieve the discomfort but doesn't last.
 
            OBJECTIVE:  Temp 98.6, pulse 76, resp. 16, BP 
 
            124/84.  HEENT:  Unremarkable.  Lungs are clear.  
 
            Heart - RR withoutmurmur [sic], gallop or rub.  
 
            Back of normal configuration.  There is palpable 
 
            muscular spasm in the paravertebral muscles, more 
 
            severe on the right hand side.  Does have pain 
 
            with flexion of the back at the hips, not as much 
 
            pain on extension.  Lateral bending seems normal.  
 
            THere [sic] is more pain on the lateral bending to 
 
            the left hand side.  Rotational movements of the 
 
            torso don't seem to elicit much pain.  SLR - neg.  
 
            Does have pain but it happens at greater than 45o 
 
            elevation above the horizontal.  DTR - II/V 
 
            without clonus.  No sensory abnormality on light 
 
            touch or pin prick.  Has tenderness in the right 
 
            upper gluteal musculature as well.
 
            ASSESSMENT:  1)  Chronic lumbar strain, intolerant 
 
            of                    Aspirin and intolerant 
 
            of nonsteroidal                      
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            anti-inflammatories if given for any                          
 
            length of time.
 
            PLAN:  Soma for this discomfort #40 l q.i.d.  
 
            Local            moist heat and firm back 
 
            support when lying              down.  Also 
 
            massage to the area locally with               
 
            Ben-Gay.  To return in 7-10 days if no                   
 
            improvement.
 
            
 
                 Claimant's medical records for the day after the 
 
            alleged injury date of August 3, 1987, indicate:
 
            
 
                 8/4/87
 
            SUBJECTIVE:  Back improved considerably using Soma                       
 
            tablets and local moist heat and rest.  Now is c/o 
 
            hemorrhoids since 8/1.  They are tender and there 
 
            is a thrombosed external hermorrhoid [sic].  She 
 
            has a hx of hemorrhoid and had external hemorrhoid 
 
            lanced inthe [sic] past.  Has been using some 
 
            Tucks and Preparation-H but with no relief.
 
            OBJECTIVE:  Temp 98.6, pulse 76, resp. 16, BP 
 
            132/80.               Exam of the rectal area 
 
            reveals an external hemorrhoid at the 9:00 
 
            position which is thrombosed and blue-black 
 
            discolored and markedly tender to palpation.  Exam 
 
            did not reveal any significant internal hemor
 
            rhoids, no mass.  Prepped area, infiltrated 
 
            locally the surface of the thrombosed hemorrhoid 
 
            with 2% Xylocaine, about 1cc and then made a stab 
 
            wound into the dome of the hemorrhoid with a #12 
 
            sterile surgical blade and expressed the blood 
 
            clot.  Got immediate relief of her discomfort with 
 
            evacuation of the clot.  There was some local 
 
            bleeding which was controlled with pressure.  Area 
 
            cleansed with Hydrogen peroxide and sterile gauze 
 
            sponge applied.
 
            ASSESSMENT:  1)  Incision and drainage, thrombosed                       
 
            external hemorrhoid..[sic]
 
            PLAN:  Continue Tucks and Preparation-H.  Sitz 
 
            baths            p.r.n. rectal discomfort.  
 
            Try to avoid constipation or diarrhea for the next 
 
            several days til the wound is healed.  If still 
 
            having significant discomfort in 5 days should 
 
            return.
 
            
 
                 Phyllis E. Box, retired plant nurse, testified at the 
 
            hearing.  She testified she was the plant nurse in 1987 and 
 
            that she was familiar with claimant, because claimant often 
 
            sought medical attention from the nurse, even when the 
 
            attention sought was very minor.  Nurse Box testified 
 
            claimant did not hesitate to seek out medical advice even 
 
            when the matter related to a paper cut.  However, Ms. Box 
 
            did not have any notations for an alleged April back injury.  
 
            She also had no recall of claimant stating she had reported 
 
            an April back injury to her supervisor.
 
            
 
                 Nurse Box did recall claimant stating on August 3, 
 
            1987, that her back started hurting three weeks prior to 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            that day's date.  Ms. Box noted for that day's entry that 
 
            while claimant had reported her back was hurting she was not 
 
            clear that the injury occurred at work.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that claimant received an injury which arose 
 
            out of and in the course of employment.  The words "out of" 
 
            refer to the cause or source of the injury.  The words "in 
 
            the course of" refer to the time and place and circumstances 
 
            of the injury.  See Cedar Rapids Community Sch. v. Cady, 278 
 
            N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 
 
            246 Iowa 402, 68 N.W.2d 63 (1955).  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 
 
            therein.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury in April 1987, 
 
            which arose out of and in the course of her employment.  
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); 
 
            Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 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, 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).
 
            
 
                 "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). 
 
            
 
                 Injuries arising out of risks or conditions personal to 
 
            the claimant do not arise out of the employment unless the 
 
            employment contributes to the risk or aggravates the injury.  
 
            When the employee has a preexisting physical weakness or 
 
            disease, this employment contribution may be found either in 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            placing the employee in a position which aggravates the 
 
            effects of a fall due to the idiopathic condition, or in 
 
            precipitating the effects of the condition by strain or 
 
            trauma.  Larson Workmen's Compensation Law, section 12.00.
 
            
 
                 Claimant was not credible in the case at hand.  Here 
 
            was a woman who had made numerous visits to the plant 
 
            nurse's office during the course of her employment.  Some of 
 
            the visits were for such minor matters as paper cuts, 
 
            slivers in fingers, and neck hurting when yawning.  It is 
 
            obvious claimant was quite familiar with plant procedures 
 
            relative to medical emergencies and on-the-job injuries.  It 
 
            is difficult for this deputy to believe a woman would visit 
 
            the plant nurse for a paper cut but she would not visit the 
 
            plant nurse for either an on-the-job back injury in April of 
 
            1987, or else an on-the-job injury in July of 1987.  This 
 
            was a woman who did not hesitate to visit her own family 
 
            physician, John DePriest, M.D.  Nevertheless, Dr. DePriest's 
 
            notes for February 13, 1987, April 6, 1987, April 13, 1987, 
 
            April 14, 1987, April 16, 1987, May 12, 1987, June 21, 1987, 
 
            June 26, 1987 and July 22, 1987, are devoid of back 
 
            complaints by claimant.  Surely, if claimant had injured her 
 
            back at work, she would have mentioned it at least once.  
 
            However, there is no mention of any back problems until July 
 
            31, 1987.  Even then there is no mention, in either the note 
 
            for July 31, 1987 or for August 3, 1987, that the back 
 
            complaints were the result of a work related injury or 
 
            injuries.  If claimant had experienced an on-the-job back 
 
            injury, she would have reported it to the nurse.
 
            
 
                 Additionally, there is the testimony of Ms. Davison.  
 
            Her testimony disputes claimant's testimony that the alleged 
 
            April incident was reported to her by claimant.  Ms. Davison 
 
            has no record of the injury report.  It is difficult to 
 
            imagine that if a back complaint was discussed with the 
 
            supervisor, she would be reluctant to send claimant to the 
 
            plant nurse.  Previously, claimant had been allowed to see 
 
            the nurse even when a lower eyelash was rubbing claimant's 
 
            eye.  Such disparate treatment with respect to medical 
 
            situations is inconceivable.
 
            
 
                 In light of the above, it is the determination of the 
 
            undersigned that claimant did not sustain an injury which 
 
            arose out of and in the course of her employment.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant takes nothing further from these proceedings.
 
            
 
                 Costs of the action shall be assessed to defendants 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of May, 1991.
 
            
 
            
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Rd
 
            Box 1087
 
            Keokuk  IA  52632
 
            
 
            Mr. Thomas J. Shields
 
            Attorney at Law
 
            600 Davenport Bank Bldg
 
            Davenport  IA  52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1100
 
                           Filed May 13, 1991
 
                           MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARY ANN HASPER,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 861486
 
            SHEAFFER EATON,               :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1100
 
            Claimant was not credible.  She did not receive an injury 
 
            which arose out of and in the course of her employment.
 
            
 
 
        
 
 
 
 
 
        
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        JERRY BYARS
 
        
 
            Claimant,
 
                                             File No. 861894
 
        CONTRACT SERVICES, LTD.,
 
                                          A R B I T R A T I O N
 
            Employer,
 
                                             D E C I S I O N
 
        and
 
        
 
        LIBERTY MUTUAL INSURANCE CO.,           F I L E D
 
        
 
             Insurance Carrier,                NOV 30 1989
 
             Defendants.
 
                                           INDUSTRIAL SERVICES
 
             
 
             
 
                                      INTRODUCTION
 
        
 
             This is a proceeding in arbitration brought by Jerry Byars, 
 
             claimant, against Contract Services, Ltd., employer, and Liberty 
 
             Mutual Insurance Company, insurance carrier, defendants, for 
 
             benefits as the result or an alleged injury which occurred on 
 
             December 29, 1987. A hearing was held in Ottumwa, Iowa, on 
 
             October 5, 1989, and the case was fully submitted at the close of 
 
             the hearing. Claimant was represented by Kirk A. Daily. 
 
             Defendants were represented by Walter F. Johnson. The record 
 
             consists of the testimony of Jerry Byars, claimant; Mike Raymond, 
 
             Senior Adjuster; and joint exhibits 1 through 5. The deputy 
 
             ordered a transcript of the hearing.
 
        
 
                                      STIPULATIONS
 
        
 
             The parties stipulated to employer-employee relationship; a 
 
             commencement date of permanent disability of March 11, 1988, if 
 
             permanent benefits are awarded; a rate of compensation of $85.45 
 
             per week, in the event of an award; that medical benefits are no 
 
             longer in dispute; that defendants make no claim for credit for 
 
             employee nonoccupational group health plan benefits paid prior to 
 
             hearing; that defendants paid nine weeks of workers' compensation 
 
             benefits to claimant at the rate of $85.45 per week prior to 
 
             hearing; that there are no bifurcated claims; that the issue of 
 
             whether claimant is entitled to penalty benefits pursuant to Iowa 
 
             Code section 86.13, as shown on the hearing assignment order, was 
 
             withdrawn by claimant at the time of the hearing.
 
        
 
                                      ISSUES
 
        
 
             The parties submitted the following issues for determination 
 
             at the time of the hearing:
 
        
 
            Whether claimant sustained an injury on December 29, 1987, 
 
        which arose out of and in the course of employment with employer.
 
        
 
            Whether the injury was the cause of either temporary or 
 
        permanent disability.
 
        
 
            Whether claimant is entitled to either temporary or 
 

 
        
 
 
 
 
 
        permanent disability benefits, and if so, the nature and extent 
 
        of his entitlement.
 
        
 
                            SUMMARY OF THE EVIDENCE
 
        
 
             Claimant, born October 5, 1956, age 33, is single and has an 
 
             approximate eleventh grade education. He dropped out of school 
 
             in the middle of the eleventh grade. He has not obtained a 
 
             G.E.D. Past employments include railroad work and construction 
 
             work as a laborer. Claimant testified that he started to work 
 
             for employer in the second week of November 1987. Employer 
 
             contended that he started December 9, 1987 (transcript page 40). 
 
             His duties were cleanup work in the upper cut area of Excel Foods 
 
             at Ottumwa, Iowa. Employer was hired by Excel to do cleanup at 
 
             night.
 
        
 
            Claimant worked from approximately 5:30 p.m. or 6:00 p.m. 
 
        until approximately 2:00 a.m. to 4:00 a.m. After he cleaned the 
 
        conveyors and saw blades he cleaned three to five vats near the 
 
        end of his shift. The vats weighed between 275 pounds to 325 
 
        pounds and were approximately five feet tall. The procedure was 
 
        to get on one side of the vat, tip it up, go to the other side 
 
        and ease it down to the floor and then wash it out with hot water 
 
        under pressure. He then tipped the vat back up, washed the 
 
        outside of it and moved it out of the way to get another one in 
 
        there.
 
        
 
            On December 29, 1987, claimant noticed that his back started 
 
        hurting. He told his supervisor that his back was hurting and 
 
        asked for help with the vats. The supervisor said "no." The 
 
        supervisor came back later and claimant asked if he could go home 
 
        because he couldn't bend over. Claimant contended it was the 
 
        lifting that injured his back. The supervisor gave him 
 
        permission to go home.
 
        
 
            Claimant later called employer and was given permission to 
 
        see a doctor and he saw Dr. Leeson (full name unknown). Dr. 
 
        Leeson referred claimant to Donald D. Berg, M.D., an orthopedic 
 
        surgeon. Claimant first saw Dr. Berg on January 8, 1988. Dr. 
 
        Berg's examination revealed intense muscle spasms and some 
 
        straightening of the iordotic curve. All other clinical 
 
        examination tests were normal. Dr. Berg diagnosed acute 
 
        lumbosacral strain with muscle spasms. He took claimant off work 
 
        and prescribed ice packs and medication (exhibit l, p. 1). On 
 
        January 15, 1988, claimant complained bitterly of intense lower 
 
        back pain and Dr. Berg ordered a CT scan. On January 29, 1988, 
 
        Dr. Berg reported that the CT scan was negative and recommended 
 
        physical therapy and a prescription medication (ex. 1, p. 2).
 
        
 
             Greg Raecker, D.O., the radiologist, reported on January 18, 
 
             1988, that there was no evidence of a herniated nucleus pulposus 
 
             at any of the levels scanned. There were no findings of spinal 
 
             stenosis. All imaged vertebral segments of L4-5 and L5-S1 were 
 
             intact. There was no CT evidence for disc herniation (ex. 1, p. 
 
             3).
 
        
 
            Dr. Berg's notes for February 12, 1988, show that claimant 
 
        was continuing to have back pain and muscle spasms, but that 
 
        claimant had not followed the doctor's directions to go to 
 
        physical therapy and take the prescribed medication because of 
 
        financial reasons and because he could not get a ride to therapy. 
 
        Dr. Berg concluded as follows:
 
        
 
             I find I do not feel he is being compliant with his 
 
             treatment recommendations. Because of this, I recommended 
 
             he consider finding another physician and if he wants to 
 

 
        
 
 
 
 
 
             continue in this office, he must be compliant and he must go 
 
             to PT and get his medications. I am going to give him 2 
 
             more wks. of being off work, and then released him to return 
 
             to work on 2-26-88 as I feel it would be beneficial for him 
 
             to return to work and to use his back. This way, he could 
 
             get more flexibility back into the muscles and hopefully, 
 
             get going with this thing. He has not made a genuine effort 
 
             on his part to get better.
 
             
 
        (ex. 2)
 
        
 
             This is the last time claimant saw Dr. Berg or any other 
 
             doctor for this injury. He has not received any prescriptions 
 
             since then. He was taking Motrin at the time of the hearing.
 
        
 
            Claimant testified that he did not have any money to 
 
        purchase the medications or take the bus to physical therapy 
 
        because he had not received any workers' compensation payment as 
 
        of February 12, 1988. Claimant testified that he continued to 
 
        have pain, however, but it wasn't bothering him as much now 
 
        because he wasn't working. Either sitting or standing caused 
 
        shooting pains in his lower back. Claimant said he next became 
 
        employed by Fairfield Aluminum Casting Company (FALCO) on July 
 
        25, 1988 as a casting finisher. He operates a belt grinder and 
 
        grinds the excess aluminum off of castings. Most of the castings 
 
        are small. The larger ones weigh up to 30 pounds.
 
        
 
             Claimant said Dr. Berg recommended that he hitchhike to 
 
             physical therapy, but claimant contended it hurt him to walk. 
 
             Claimant said that he was able to wake up a friend to take him to 
 
             the plant to pick up his workers' compensation checks after 11:00 
 
             p.m. because that is when they were available to be picked up, 
 
             but this friend could not take him to physical therapy because he 
 
             worked the first shift. Claimant said he did not own a car. 
 
             When he was working, he paid another employee to take him to work 
 
             and take him home. Claimant conceded there was a bus to the 
 
             clinic and the fare was 50 to 60, but he did not have money for 
 
             bus fare because his workers' compensation checks had not begun 
 
             by February 12, 1988. After they arrived, he had to pay 
 
             accumulated bills and he had to eat. He said he tried to get 
 
             rides from several people, but they were all at work or at 
 
             school. Claimant also contended it hurt to ride the bus. 
 
             Claimant admitted he had the bus fare to see Dr. Berg on three 
 
             occasions prior to February 12, 1988, and sometimes he could 
 
             catch a ride with his sister. Claimant said the first workers' 
 
             compensation check had not arrived when he filed suit on February 
 
             2, 1988 and that is why he retained an attorney. Claimant said 
 
             it was his recollection that he still had not received any 
 
             workers' compensation payments when he saw Dr. Berg on February 
 
             12, 1988.
 
        
 
            Claimant eventually agreed that he worked through January 7, 
 
        1988 before losing time from work (tr. pp. 44 & 45). He saw Dr. 
 
        Berg on January 8, 1988 and was taken off work that day. He did 
 
        not have income after that until sometime in February.
 
        
 
            Claimant agreed that Dr. Berg released him to return to work 
 
        on February 26, 1988.
 
        
 
            Dr. Berg wrote to the insurance adjustor on May 16, 1988 on 
 
        the subject of permanency as follows:
 
        
 
             In answer to your letter dated April [sic] 27, 1988 
 
             regarding Jerry Byars, the patient has not been seen by me 
 
             since February 12, 1988. You have copies of my last note 
 
             from that date.
 

 
        
 
 
 
 
 
             
 
             As far as any permanent impairment rating as I have not seen 
 
             this patient following his accident. However, I will state 
 
             he did not show any evidence of a herniated disc. In most 
 
             situations like his, muscle spasms and muscle strains of the 
 
             back will resolve over a period of time. I would state that 
 
             I doubt he will have any permanent impairment from this 
 
             injury.
 
             
 
        (ex. 3)
 
        
 
             Michael Raymond, senior adjustor, testified the he took a 
 
             telephone statement from claimant on January 21, 1988 (ex. 5). 
 
             In that statement claimant told Raymond that he started losing 
 
             time, "...two weeks ago today. I have been off for two weeks 
 
             today.", which would have been January 7, 1988 (ex. 5, p. 7). 
 
             Raymond testified that the first check would have gone out on or 
 
             about January 28, 1988, but that it would have been sent to 
 
             employer's office at the address of record in Burlington, Iowa, 
 
             rather than directly to claimant in Ottumwa (tr. p. 56). 
 
             Claimant was sent checks for the period from January 8, 1988 
 
             through March 10, 1988. Raymond denied that claimant called or 
 
             talked to him on any other occasion requesting payment of 
 
             workers' compensation, medication expenses or transportation 
 
             expenses to the doctor. All medical expenses had been paid to 
 
             date.
 
        
 
             Raymond denied any recollection of talking to claimant's 
 
             attorney on February 8, 1988 and making a statement about what 
 
             the weekly rate would be and that it would be put in the computer 
 
             today or tomorrow as counsel's notes reflected. Raymond did not 
 
             know when claimant received the first check. He did not have a 
 
             copy of it. He did notify claimant when he sent the first check 
 
             to the company and claimant would not have any way of knowing 
 
             that it was sent out.
 
        
 
                            APPLICABLE LAW AND ANALYSIS
 
        
 
             An employee is entitled to compensation for any and all 
 
             personal injuries which arise out of and in the course of the 
 
             employment. Section 85.3(1).
 
        
 
            Claimant has the burden of proving by a preponderance of the 
 
        evidence that he received an injury on December 29, 1987, which 
 
        arose out of and in the course of his employment. McDowell v. 
 
        Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
        Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
        
 
            The claimant has the burden of proving by a preponderance of 
 
        the evidence that the injury of December 29, 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, 261 Iowa 352, 154 
 
        N.W.2d 128 (1967).
 
        
 
            Iowa law provides for the payment of compensation for 
 
        personal injuries arising out of and in the course of employment. 
 
        Iowa Code section 85.3(1). The Iowa Supreme Court has very 
 
        broadly defined injury as any impairment of health which comes 
 
        about not through the natural building up or tearing down of the 
 
        human body. Almquist v. Shenandoah Nurseries, Inc., 218 Iowa 
 
        724, 254 N.W. 35 (1934). An accident is not required. Olson v. 
 
        Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). 
 
        Proof of a special incident or unusual occurrence is not 
 
        required. Ford v. Goode, 240 Iowa 1219, 38 N.W.2d 158 (1949).
 
        
 
             Claimant did sustain the burden of proof by a preponderance 
 
             of the evidence that he did sustain an injury on December 29, 
 
             1987 that arose out of and in the course of employment with 
 
             employer. Claimant described that his back began hurting while 
 
             lifting and tipping vats that weighed between 275 and 325 pounds. 
 
             Claimant reported the injury immediately to his supervisor. He 
 
             asked permission to leave work early because of the injury. 
 
             Claimant called the company and obtained permission to see a 
 
             doctor. This is the basis upon which Dr. Berg treated claimant. 
 
             This account of how the injury occurred is not disputed. 
 
             Claimant's testimony was not contradicted, controverted, refuted 
 
             or impugned in any way by defendants.
 
        
 
            Therefore, claimant has established an injury arising out of 
 
        and in the course of employment with employer on December 29, 
 
        1987.
 
        
 
             Claimant is entitled to temporary total disability benefits 
 
             from January 8, 1988 until February 26, 1988. Claimant saw Dr. 
 
             Berg on January 8, 1988 and Dr. Berg took claimant off work on 
 
             this date. Claimant also told Raymond, in his recorded telephone 
 
             statement on January 21, 1988, that he began losing time from 
 
             work two weeks before the date of the statement which was January 
 
             8, 1988.
 
        
 
            Claimant did not comply with Dr. Berg's treatment 
 
        recommendations of going to physical therapy and taking a 
 
        prescribed mediation. Claimant contended that he did not have 
 
        the money for the medicine or transportation. Claimant's 
 
        explanation for not following the doctors instructions is not 
 
        accepted as reasonable. Defendants' counsel elicited that 
 
        claimant had money and transportation for other things. Dr. Berg 
 
        thought it was beneficial for claimant to return to work and use 
 
        his back on February 26, 1988. Therefore, the only doctor or 
 
        record took claimant off work on January 8, 1988 and returned him 
 
        to work on February 26, 1988.
 
        
 
             Claimant's testimony that his back continued to cause pain 
 
             does not rise to the level necessary to extend his time off work 
 
             beyond that established by the medical evidence of the only 
 
             doctor in the case who is an orthopedic surgeon. The question of 
 
             causal connection is essentially within the domain of expert 
 
             testimony. Bradshaw, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
             Claimant should not be allowed to extend his period of temporary 
 
             disability by his refusal to comply with the doctor's reasonable 
 
             treatment orders. Claimant, therefore, is entitled to seven weeks 
 
             of temporary total disability benefits for the period from 
 
             January 8, 1988 to February 26, 1988.
 
        
 

 
        
 
 
 
 
 
            Claimant did not sustain the burden of proof by a 
 
        preponderance of the evidence that the injury was the cause of 
 
        permanent disability or that he is entitled to permanent 
 
        disability benefits. Claimant asserts that he still has pain and 
 
        due to the length of time his problems have persisted that they 
 
        are permanent. Pain that is not substantiated by clinical 
 
        findings is not a substitute for impairment. Waller v. 
 
        Chamberlain Mfg., II Iowa Industrial Commissioner Report 419, 425 
 
        (1981).
 
        
 
            Claimant was able to perform another manual labor job as a 
 
        casting finisher on July 25, 1988. Dr. Berg said claimant did 
 
        not show any evidence of a herniated disc, but rather sustained 
 
        muscle spasms and muscle strains which will resolve over a period 
 
        of time. He did not believe claimant would have any permanent 
 
        impairment from this injury. Claimant did not present an 
 
        independent evaluation to establish permanent impairment. No 
 
        doctor imposed any limitations or restrictions on claimant's work 
 
        activities. No doctor has found a permanent impairment or given 
 
        a permanent impairment rating. Claimant has not sustained the 
 
        burden of proof by a preponderance of the evidence that the 
 
        injury of December 29, 1987, was the cause of permanent 
 
        disability. Accordingly, claimant is not entitled to permanent 
 
        disability benefits.
 
        
 
                                 FINDINGS OF FACT
 
        
 
             Wherefore, based on the evidence presented, the following 
 
             findings of fact are made:
 
        
 
            That claimant was an employee of employer on December 29, 
 
        1987.
 
        
 
            That claimant's back began hurting while lifting and tipping 
 
        325 pound vats.
 
        
 
            That claimant reported an injury to his supervisor at the, 
 
        time it occurred and asked to go home early due to the injury.
 
        
 
            That claimant reported the injury to the employer's office 
 
        and received either permission or direction to see a doctor.
 
        
 
             That the initial doctor referred claimant to Dr. Berg, an 
 
             orthopedic surgeon.
 
        
 
            That Dr. Berg took claimant off work on January 8, 1988 and 
 
        returned him to work on February 26, 1988.
 
        
 
            That Dr. Berg ruled out disc injury with a CT scan and found 
 
        claimant suffered muscle spasms and muscle strains, which usually 
 
        resolve over a period of time, and that he will not have any 
 
        permanent impairment from this injury.
 
        
 
            That there was no independent evaluation or any other 
 
        examination or evaluation which found that claimant had any 
 
        permanent impairment or imposed any limitations or restrictions 
 
        on his work activities.
 
        
 
            That claimant took and performed another manual labor job on 
 
        July 25, 1988.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
             WHEREFORE, based on the evidence presented and the foregoing 
 
             principles of law, the following conclusions of law are made:
 
        
 

 
        
 
 
 
 
 
            That claimant sustained an injury on December 29, 1987 which 
 
        arose out of and in the course of his employment with employer.
 
        
 
            That the injury was the cause of temporary disability from 
 
        January 8, 1988 to February 26, 1988.
 
        
 
            That claimant is entitled to seven weeks of temporary total 
 
        disability benefits.
 
        
 
            That claimant did not sustain the burden of proof by a 
 
        preponderance of the evidence that the injury was the cause of 
 
        permanent impairment or disability.
 
        
 
            That claimant is not entitled to permanent disability 
 
        benefits.
 
        
 
                                      ORDER
 
        
 
             THEREFORE, IT IS ORDERED:
 
        
 
            That defendants pay to claimant seven (7) weeks of temporary 
 
        total disability benefits at the rate of Eighty-five and 45/100 
 
        Dollars ($85.45) per week in the total amount of Five Hundred 
 
        Ninety-eight and 15/100 dollars ($598.15) commencing on January 
 
        8, 1988.
 
        
 
             That this amount is to be paid in a lump sum.
 
             
 
             That interest will accrue pursuant to Iowa Code section 
 
             85.30.
 
        
 
            That defendants are entitled to a credit for nine (9) weeks 
 
        of workers' compensation benefits paid to claimant prior to 
 
        hearing at the rate of Eighty-five and 45/100 Dollars ($85.45) 
 
        per week in the total amount of Seven Hundred Sixty-nine and 
 
        05/100 Dollars ($769.05).
 
        
 
            That the costs of this action are charged to defendants 
 
        pursuant to Division of Industrial Services Rule 343-4.33, 
 
        including the cost of the transcript of the hearing.
 
        
 
            That defendants file claim activity reports as my be 
 
        requested by this agency pursuant to Division of Industrial 
 
        Services Rule 343-3.1.
 
        
 
            Signed and filed this 30th day of November, 1989.
 
        
 
        
 
        
 
        
 
        
 
                                           WALTER R. McMANUS, JR.
 
                                           DEPUTY INDUSTRIAL 
 
        COMMISSIONER
 
        
 
        Copies to:
 
        
 
        Mr. Kirk A. Daily
 
        Attorney at Law
 
        112 N Court
 
        PO Box 601
 
        Ottumwa, IA 52501
 
        
 
        Mr. Walter F. Johnson
 
        Attorney at Law
 
        111 W 2nd St
 

 
        
 
 
 
 
 
        PO Box 716
 
        Ottumwa, IA 52501
 
        
 
        
 
 
        
 
 
 
 
 
        
 
        
 
        
 
                                      51106; 51108.50; 51401;
 
                                      51402.20; 51402.30; 51402.40;
 
                                      51801; 51803
 
                                      Filed November 30, 1989
 
                                      WALTER R. McMANUS, JR.
 
                                      
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
                                      
 
                                      
 
        JERRY BYARS,
 
        
 
             Claimant,
 
             
 
        vs.                                  File No. 861894
 
        
 
        CONTRACT SERVICES, LTD.,          A R B I T R A T I O N
 
        
 
            Employer,                       D E C I S I O N
 
        
 
        and
 
        
 
        LIBERTY MUTUAL INSURANCE CO.,
 
        
 
             Insurance Carrier,
 
             Defendants.
 
             
 
             
 
        51106; 51108.50; 51401; 51402.20; 51402.30; 51402.40; 51801; 
 
        51803
 
        
 
             Claimant proved he sustained an injury to his back arising 
 
             out of and in the course of his employment with employer on 
 
             December 29, 1987, when he tipped a 325 pound vat and laid it on 
 
             the floor to clean it with hot water under pressure and then 
 
             stand it back up again and felt pain in his back.
 
        
 
            The injury was the cause of temporary disability for a 
 
        period of recovery and claimant was awarded temporary total 
 
        disability benefits for this period.
 
        
 
            Claimant did not prove that the injury was the cause of 
 
        permanent disability. The only doctor, an orthopedic surgeon, 
 
        stated claimant sustained muscle spasms and muscle strains and 
 
        that such injuries will resolve over a period of time without 
 
        permanent impairment. Claimant did not use an independent 
 
        evaluator or submit any other evidence to attempt to prove 
 
        permanency. Claimant's contention was that the pain had 
 
        persisted so long it must be permanent. Held that causal 
 
        connection is essentially within the realm of the expert and 
 
        claimant's testimony of pain did not rise to the level of 
 
        conclusive proof of causal connection. Pain that is not 
 
        substantiated by clinical findings is not a substitute for 
 
        impairment.
 
        
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JOHN BARNES,                  :
 
                                          :
 
                 Claimant,                :      File No. 861897
 
                                          :
 
            vs.                           :
 
                                          :    A R B I T R A T I O N
 
            HON INDUSTRIES,               :
 
                                          :       D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            THE TRAVELERS INSURANCE CO.,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by John 
 
            Barnes as a result of alleged injury to his right and left 
 
            hands which occurred on August 1, 1987.  Defendants denied 
 
            compensability for the injury, paid no weekly benefits and 
 
            paid all medical expenses.
 
            
 
                 The case was heard and fully submitted at Davenport, 
 
            Iowa, on January 29, 1991.  The record in the proceeding 
 
            consists of joint exhibits 1 through 12 and testimony from 
 
            claimant and Peggy Bartenhagen.
 
            
 
                                      ISSUES
 
            
 
                 The issues presented for determination are as follows:
 
            
 
                 1.  Whether claimant sustained an injury on August 1, 
 
            1987, which arose out of and in the course of employment 
 
            with employer;
 
            
 
                 2.  Entitlement to permanent partial disability; and,
 
            
 
                 3.  Entitlement to temporary total disability, or 
 
            healing period and causal connection.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having considered all the evidence received, the 
 
            following findings of fact are made:
 
            
 
                 John Barnes went to work for defendant Hon Industries 
 
            on July 13, 1987.  While employed with employer, he operated 
 
            a spray paint gun.  He would spray paint furniture that was 
 
            brought in front of him by a conveyor belt system.  The work 
 
            was repetitive in nature.  One day of work could result in a 
 
            thousand pieces of furniture being painted.  Claimant would 
 
            usually paint with his right hand while holding a sound 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            deadener in his left hand.
 
            
 
                 Claimant testified that while performing his duties as 
 
            a painter for employer he began experiencing pain in his 
 
            right and left hands.  He had tingling in the hands and 
 
            stiff fingers.  His arms also went to sleep at night.  
 
            Claimant attributed the symptoms to the repetitive nature of 
 
            the paint spraying which he started in July 1987.
 
            
 
                 Claimant was sent by the employer to M. R. Mally, D.C., 
 
            for treatment of his symptoms.  Dr. Mally diagnosed 
 
            claimant's symptoms as acute severe right carpal tunnel 
 
            syndrome and mild left carpal tunnel syndrome (Exhibit 3, 
 
            page 20).  Claimant was also treated by Mark O'Dell, M.D., 
 
            who diagnosed carpal tunnel symptoms (Ex. 4, p. 23).  A Dr. 
 
            Rasmus saw claimant on November 13, 1987, and diagnosed 
 
            bilateral carpal tunnel syndrome (Ex. 5, p. 24).
 
            
 
                 It is found that in August 1987, claimant incurred a 
 
            carpal tunnel syndrome in both hands.  The next question to 
 
            be resolved concerns whether the carpal tunnel syndrome was 
 
            caused by claimant's work at Hon Industries.
 
            
 
                 Claimant testified that Dr. Mally was of the opinion 
 
            that the carpal tunnel syndrome was caused by the repetitive 
 
            work at Hon Industries.  Claimant was symptom-free before 
 
            performing work for employer.
 
            
 
                 Peggy Bartenhagen testified that she was the production 
 
            supervisor for employer who supervised claimant.  She stated 
 
            that Dr. Mally told her that the carpal tunnel syndrome was 
 
            not work related.
 
            
 
                 Dr. Mally generally avoided addressing the issue of 
 
            causation by using the words "alleged workmans compensation 
 
            injury" in many of his reports (Ex. 1, p. 1).  However, in 
 
            Exhibit 2, page 2, Dr. Mally implied that an injury did 
 
            occur at Hon Industries.  His statement of January 15, 1988 
 
            recites a history of carpal tunnel syndrome dating to August 
 
            1, 1987 (Ex. 2, p. 2).
 
            
 
                 When deciding whether an injury is related to work, the 
 
            evidence must be viewed as a whole.  In this case, claimant 
 
            did not have carpal tunnel symptoms before starting to work 
 
            for employer.  After performing repetitive tasks for the 
 
            employer the symptoms appeared.  All examining doctors 
 
            diagnosed the problem as a carpal tunnel syndrome which is 
 
            associated with highly repetitive work.  It is found that 
 
            claimant sustained an injury to his hands on August 1, 1987 
 
            arising out of and in the course of employment with 
 
            employer.
 
            
 
                 The next issue to be resolved concerns claimant's 
 
            entitlement to permanent partial disability resulting from 
 
            the August 1, 1987 injury.  The medical records did not 
 
            reveal any medical opinions concerning permanent partial 
 
            impairment.  Nor was any medical evidence presented which 
 
            stated that the August 1, 1987 injury was the cause of 
 
            permanent impairment.  Claimant has the burden of proving 
 
            his case by a preponderance of the evidence.  With respect 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            to permanent partial disability, claimant has failed to 
 
            bring forth sufficient evidence to prove an entitlement.  
 
            His claim for permanent partial disability fails.  It is 
 
            found that claimamt is not entitled to permanent partial 
 
            disability.
 
            
 
                 The next issue to be resolved concerns claimant's 
 
            entitlement to temporary total disability.  Claimant 
 
            testified that he was off work for about one week in October 
 
            or November 1987 as a result of the injury.  He also 
 
            testified that he was discharged from employment with 
 
            employer on December 29, 1987 due to his inability to 
 
            perform his duties.  He claimed that this failure to perform 
 
            the work was a direct result of the carpal tunnel symptoms.  
 
            Claimant stated that he was under treatment with Dr. Mally 
 
            for the carpal tunnel until middle August 1988.  However, 
 
            claimant started work for another employer in early March 
 
            1988.
 
            
 
                 The medical records reveal that claimant was taken off 
 
            work starting on November 11, 1987 (Ex. 3, p. 15; Ex. 6, p. 
 
            25).  The records reveal that claimant saw Dr. Mally on 
 
            November 19, 1987 and was returned to work on restricted 
 
            duty.  Testimony revealed that the employer offered claimant 
 
            light duty work during the period in question.  Claimant 
 
            then worked continuously until his employment was terminated 
 
            on December 29, 1987.
 
            
 
                 Dr. Mally returned claimant to regular duties on 
 
            November 24, 1987 (Ex. 3, p. 9).  Subsequent to November 24, 
 
            1987, Dr. Mally issued regular duty work releases (Ex. 3, 
 
            pp. 3-7).  Thus, the only period claimant was authorized off 
 
            work by a physician begins November 11, 1987 and continues 
 
            through November 19, 1987.  Claimant has proven that he was 
 
            off work for nine days as a result of the August 1, 1987 
 
            injury.
 
            
 
                 Compensation for temporary total disability begins on 
 
            the fourth day of disability with respect to injuries that 
 
            do not result in permanent partial disability.  Iowa Code 
 
            section 85.32.  Thus, claimant is not entitled to benefits 
 
            for the first three days of lost time.  Claimant has proven 
 
            entitlement to temporary total disability benefits starting 
 
            November 14, 1987 through November 19, 1987.
 
            
 
                 Claimant has failed to prove entitlement to temporary 
 
            total disability subsequent to November 29, 1987, as no off 
 
            work authorization was presented.  In order to prove 
 
            entitlement to further temporary total disability claimant 
 
            would need to prove that he was authorized to be off work by 
 
            a doctor.  As previously stated, Dr. Mally released claimant 
 
            to work full duty on November 24, 1987.  Claimant has failed 
 
            to prove further entitlement to temporary total disability.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on August 1, 
 
            1987, which arose out of and in the course of his 
 
            employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of August 1, 
 
            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, 261 Iowa 352, 154 
 
            N.W.2d 128 (1967).
 
            
 
                 Claimant established his burden in proving that on 
 
            August 1, 1987, he sustained an injury to his hands arising 
 
            out of and in the course of employment with employer.
 
            
 
                 Permanent partial disabilities are classified as either 
 
            scheduled or unscheduled.  A specific scheduled disability 
 
            is evaluated by the functional method; the industrial method 
 
            is used to evaluate an unscheduled disability.  Martin v. 
 
            Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); 
 
            Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); 
 
            Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 887 (Iowa 
 
            1983).
 
            
 
                 Claimant has failed to prove by a preponderance of the 
 
            evidence that he sustained permanent partial disability to 
 
            his hands as a result of the August 1, 1987 work injury.
 
            
 
     
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Iowa Code section 85.32 provides, in part:
 
            
 
                    Except as to injuries resulting in permanent 
 
                 partial disability, compensation shall begin on 
 
                 the fourth day of disability after the injury.
 
            
 
                 Iowa Code section 85.33(1) provides:
 
            
 
                    Except as provided in subsection 2 of this 
 
                 section, the employer shall pay to an employee for 
 
                 injury producing temporary total disability weekly 
 
                 compensation benefits, as provided in section 
 
                 85.32, until the employee has returned to work or 
 
                 is medically capable of returning to employment 
 
                 substantially similar to the employment in which 
 
                 the employee was engaged at the time of injury, 
 
                 whichever occurs first.
 
            
 
                 Claimant has proven that as a result of the August 1, 
 
            1987 injury, he is entitled to temporary total disability 
 
            benefits beginning November 14, 1987 through November 19, 
 
            1987.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants pay claimant point eight five seven 
 
            (.857) weeks of compensation for temporary total disability 
 
            at the rate of two hundred thirty-eight and 40/100 dollars 
 
            ($238.40) per week for the period November 14, 1987 through 
 
            November 19, 1987.
 
            
 
                 It is further ordered that defendants shall receive 
 
            credit for benefits previously paid.
 
            
 
                 It is further ordered that all accrued benefits are to 
 
            be paid in a lump sum.
 
            
 
                 It is further ordered that interest will accrue 
 
            pursuant to Iowa Code section 85.30.
 
            
 
                 It is further ordered that the costs of this action are 
 
            assessed against defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 It is further ordered that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of February, 1991.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MARLON D. MORMANN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr James P Hoffman
 
            Attorney at Law
 
            Middle Rd
 
            Box 1087
 
            Keokuk IA 52632
 
            
 
            Ms Vicki L Seeck
 
            Attorney at Law
 
            600 Union Arcade Bldg
 
            Davenport IA 52801
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1100; 5-1803; 5-1801
 
                      Filed February 7, 1991
 
                      Marlon D. Mormann
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JOHN BARNES,                  :
 
                                          :
 
                 Claimant,                :      File No. 861897
 
                                          :
 
            vs.                           :
 
                                          :    A R B I T R A T I O N
 
            HON INDUSTRIES,               :
 
                                          :       D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            THE TRAVELERS INSURANCE CO.,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1100
 
            Claimant sustained a repetitive motion injury of his hands 
 
            at work.
 
            
 
            5-1803; 5-1801
 
            Claimant was entitled to temporary total disability.  No 
 
            medical reports were offered which revealed permanent 
 
            impairment and claimant failed to prove permanent partial 
 
            disability.
 
            
 
            
 
 
        
 
 
 
 
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        MARY S. ANDERSON,
 
        
 
            Claimant                                     File No. 
 
        861902
 
        
 
        vs.                                           A P P E A L
 
        
 
        BONANZA RESTAURANT,                         D E C I S I O N
 
        
 
            Employer,                                 F I L E D
 
        
 
                                                      JUL 31 1989
 
        
 
                                                  INDUSTRIAL SERVICES
 
                                                
 
                                                
 
                                 STATEMENT OF THE CASE
 
        
 
             Claimant appeals from a ruling on an order to submit proper 
 
             proof of service which dismissed claimant's case. The record on 
 
             appeal consists of the agency file on this matter.
 
        
 
                                      ISSUE
 
        
 
             Claimant specified no errors and filed no brief. The issue 
 
             on appeal is whether the deputy properly dismissed this matter 
 
             when claimant failed to respond to his order.
 
        
 
                                 REVIEW OF EVIDENCE
 
        
 
             On January 11, 1988, pro se claimant filed an original 
 
             notice and petition alleging an injury of December 3, 1986. Also 
 
             on January 11, 1988, claimant filed a hand written statement that 
 
             read: "I mailed the form 100 to Bonanza of Coralville on January 
 
             11, 1988 by registered mail here is the green card."
 
        
 
            Also filed with claimant's petition was a postal return 
 
        receipt which showed a delivery date of January 5, 1988, and the 
 
        signature of addressee as what appears to be Tarin Bickford. The 
 
        receipt did not identify to whom the article was addressed.
 
        
 
            On April 12, 1988, a deputy industrial commissioner issued 
 
        an order concerning a failure to submit proper proof of service. 
 
        In that order claimant was ordered to submit proper proof of 
 
        service within ten (10) days. That order was sent return receipt 
 
        requested and the signature of the addressee was Mary Anderson.
 
        
 
            On May 12, 1988, a deputy dismissed claimant's case when 
 
        there was no response to the April 12, 1988 order. That ruling 
 
        was also sent return receipt requested and the signature of the 
 
        addressee was Mary Anderson.
 
        
 
                                 APPLICABLE LAW
 
             
 
             Division of Industrial Services Rule 343-4.36 provides:
 
             
 
                  If any party to a contested case or an attorney 
 
                      representing such party shall fail to comply with these 
 
                      rules or any order of a deputy commissioner or the 
 

 
        
 
 
 
 
 
                      industrial commissioner, the deputy commissioner or 
 
                      industrial commissioner may dismiss the action. Such 
 
                      dismissal shall be without prejudice. The deputy 
 
                      commissioner or industrial commissioner may enter an order 
 
                      closing the record to further activity or evidence by any 
 
                      party for failure to comply with these rules or an order of 
 
                      a deputy commissioner or the industrial commissioner.
 
             
 
                                      ANALYSIS
 
        
 
             Claimant did not provide the deputy with proper proof of 
 
             service. Claimant's attempted statement of service filed with 
 
             the original notice and petition falls short in that it is 
 
             impossible to tell that the form 100 was sent to the alleged 
 
             employer. Claimant did not provide an affidavit of proof of 
 
             service. The deputy requested proper proof of service and there 
 
             was no response to that request. When the claimant failed to 
 
             respond to the deputy's order, the deputy had the authority to 
 
             dismiss the action. Claimant has provided no justification for 
 
             failing to comply with the deputy's order. The deputy properly 
 
             dismissed claimant's case.
 
        
 
                                 FINDINGS OF FACT
 
        
 
             1. Claimant filed an original notice and petition on 
 
             January 11, 1988.
 
        
 
            2. Claimant did not file an affidavit of proof of service.
 
        
 
            3. The postal return receipt that claimant filed with her 
 
        petition did not identify to whom the article was addressed.
 
        
 
            4. On April 12, 1988, a deputy industrial commissioner 
 
        ordered claimant to submit proper proof of service within ten 
 
        days.
 
        
 
            5. Claimant did not respond to a deputy industrial 
 
        commissioner's order to submit proper proof of service.
 
        
 
                                 CONCLUSION OF LAW
 
        
 
             Claimant has failed to comply with an order of the deputy 
 
             industrial commissioner.
 
        
 
            WHEREFORE, the ruling of the deputy is affirmed.
 
        
 
                                      ORDER 
 
                                      
 
             THEREFORE, it is ordered:
 
             
 
             That claimant's case be dismissed.
 
             
 
             That all costs of this action be paid by claimant.
 
                  
 
                  Signed and filed this 31st day of July, 1989.
 
                  
 
                  
 
                  
 
                  
 
                  
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
        
 
        Copies To:
 
        
 
        Mary S. Anderson
 

 
        
 
 
 
 
 
        1515 Prairie Du Chien Rd. #10
 
        Iowa City, Iowa 52240
 
        
 
        Certified & Regular Mail
 
        
 
        
 
 
        
 
 
 
 
 
        
 
                                          2903
 
                                          Filed July 31, 1989
 
                                          DAVID E. LINQUIST
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        MARY S. ANDERSON,
 
        
 
            Claimant                                     File No. 
 
        861902
 
        
 
        vs 
 
                                                          A P P E A L
 
        BONANZA RESTAURANT,
 
        
 
            Employer,                                    D E C I S I O 
 
        N
 
            Defendant.
 
        
 
        
 
        2903
 
        
 
             Pro se claimant who failed to respond to deputy's order to 
 
             submit proper proof of service had case dismissed. Claimant did 
 
             not provide affidavit of mailing and postal return receipt filed 
 
             with original notice and petition did not specify to who article 
 
             was addressed.