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                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ELIAS KING,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 863824
 
            COLONIAL BAKING COMPANY,      :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            INSURANCE CO. OF NORTH        :
 
            AMERICA,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration brought by the 
 
            claimant, Elias King, against his employer, Colonial Baking 
 
            Company, and its insurance carrier, the Insurance Company of 
 
            North America, to recover benefits under the Iowa Workers' 
 
            Compensation Act as a result of an injury allegedly 
 
            sustained on August 26, 1987.  This matter came on for 
 
            hearing before the undersigned deputy industrial 
 
            commissioner at Des Moines, Iowa on May 18, 1990.  A first 
 
            report of injury was filed on September 21, 1987.  The 
 
            record in this matter consists of the testimony of claimant 
 
            as well as of Kelly Gannon, Edward Lynn Greenlee, David 
 
            Prochaska, and Tim James as well as of joint exhibits 1 
 
            through 26 and 28 through 32, and claimant's exhibit A.  
 
            Claimant's objection to defendants' exhibit 27 is sustained 
 
            for reasons discussed below.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and the oral 
 
            stipulation of the parties, the parties stipulated that 
 
            claimant's rate of weekly compensation in the event of an 
 
            award is $277.17 and that a causal relationship does exist 
 
            between the alleged injury and a period of temporary 
 
            disability.
 
            
 
                 Issues remaining to be decided are:
 
            
 
                 1.  Whether claimant received an injury which arose out 
 
            of and in the course of his employment;
 
            
 
                 2.  Whether a causal relationship exists between the 
 
            alleged injury and claimed temporary total/healing period 
 
            disability, specifically whether care of Sam L. Graham, 
 
            Ph.D., was maintenance in nature;
 
            
 

 
            
 
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                 3.  Whether a causal relationship exists between the 
 
            alleged injury and claimed permanent partial disability;
 
            
 
                 4.  Whether claimant is entitled to benefits and the 
 
            nature and extent of any benefit entitlement; and,
 
            
 
                 5.  Whether claimant is an odd-lot employee under the 
 
            Guyton doctrine.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and reviewed the 
 
            evidence, finds:
 
            
 
                 Claimant is a 34-year-old male.  Claimant's reading 
 
            skills and word pronunciation, reading vocabulary, and 
 
            comprehension are all considered equal to the 5.6 grade 
 
            level.  His math skills are at approximately the late fourth 
 
            grade or early fifth grade level.  He lacks knowledge of 
 
            whole numbers, fractions or decimals.  After eighth grade, 
 
            claimant attended special classes in school.  Claimant does 
 
            read the newspaper, however.
 
            
 
                 Claimant began work at Colonial Bakery in 1980.  He 
 
            initially worked as a swing man and then worked a variety of 
 
            jobs including Pan-O-Pat, mixing room, and bread oven.  The 
 
            jobs generally included a variety of motions including 
 
            twisting, bending, and lifting weights of up to 100 pounds 
 
            on an occasional basis and lesser weights on a frequent 
 
            basis as well as pushing weights of up to 1,800 pounds 
 
            intermittently throughout the work day.  Claimant's duties 
 
            also generally included some dry or wet mopping.
 
            
 
                 It is possible to twist at the knee and not at the back 
 
            while doing the bread oven job.  When split bread is run, 
 
            all the bread oven worker has to do is put the bread on a 
 
            conveyor.  The end conveyor worker pulls the product off the 
 
            racks.  Split bread is run for approximately 4-5 hours per 
 
            day.  Claimant was a good dough mixer and had no 
 
            intellectual problems doing that job.
 
            
 
                 Prior to working at Colonial, claimant had performed a 
 
            variety of jobs with the University of Columbia, Missouri.  
 
            He had been head janitor, a job where he had supervised 
 
            several employees.  He had been a dishwasher and cook's 
 
            assistant.  He had been a lawns keeper.  Claimant also had 
 
            worked previously in construction, as a railroad worker, and 
 
            as a gas station attendant.
 
            
 
                 At Colonial, claimant earned $10.35 per hour during 
 
            regular daytime hours and $10.45 per hour when he worked 
 
            between 6:00 p.m. and 6:00 a.m.  Claimant received a pension 
 
            or profit sharing plan; two weeks' paid vacation per year; 
 
            and, medical benefits for himself and his family.  Claimant 
 
            was married with four children in August, 1987.  He and his 
 
            spouse were separated at that time, however.
 
            
 
                 On August 26, 1987, claimant slipped on water at work 
 
            and twisted his back.
 
            
 

 
            
 
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                 Claimant had prior back problems in 1984 through 1986 
 
            for which he had treated with Robert Breedlove, M.D.  He was 
 
            hospitalized with conservative care and was off work for 
 
            approximately two to three weeks.  A back brace was 
 
            prescribed in 1985.  Claimant had been able to quit wearing 
 
            it at least three months prior to August, 1987, however.  
 
            Claimant returned to work subsequent to his 1984 
 
            hospitalization and was able to continue his job, but for 
 
            missing an occasional day on account of back pain.  Claimant 
 
            had had some leg pain in 1984, but stated he had no leg pain 
 
            before August, 1987 after healing from his 1984 back 
 
            incident.
 
            
 
                 Claimant denied having changed from bread mixer to 
 
            bread oven operator on account of his pre-1987 back 
 
            injuries.  The record does not reflect that bread oven job 
 
            would be substantially less physically demanding than the 
 
            bread mixer job.
 
            
 
                 In his late teens and early 20's, claimant had problems 
 
            with using drugs and drinking.  He treated for a variety of 
 
            mental health symptoms at that time.  He was hospitalized 
 
            for psychiatric care in 1980.  Claimant received no 
 
            psychiatric care between 1980 and 1987.  Claimant has not 
 
            drunk nor used drugs since undergoing a religious conversion 
 
            in approximately 1979.  Mental health records in evidence 
 
            demonstrate that claimant has a past history of anxiety and 
 
            problems in interpersonal relationships.  He tends to 
 
            somatize his anxiety and related emotional difficulties.
 
            
 
                 Claimant had had marital problems between 1980 and his 
 
            August 26, 1987 injury date.  Claimant denied that those 
 
            difficulties had caused him to be depressed.  He admitted 
 
            consulting with an individual related to his church relative 
 
            to them, however.  Claimant was in an anxious state related 
 
            to a problem with a girlfriend when Dr. Graham initially saw 
 
            claimant.
 
            
 
                 William R. Boulden, M.D., was claimant's primary 
 
            treating physician subsequent to his August 26, 1987 back 
 
            injury.  Dr. Boulden performed a two-level decompression on 
 
            February 1, 1988 which decompression revealed degenerative 
 
            disc disease at L5-S1, L4-5 and spinal stenosis at L4-5, 
 
            L5-S1.  Dr. Boulden referred claimant to Thomas W. Bower, 
 
            licensed physical therapist, for physical therapy and 
 
            functional capacities evaluation.  Claimant did not appear 
 
            for all physical therapy appointments nor follow through on 
 
            physical therapy as recommended.  Mr. Bower has opined that, 
 
            under the American Medical Association Guides to the 
 
            Evaluation of Permanent Impairment, Third Edition, claimant 
 
            has an 11 percent body as a whole impairment as a result of 
 
            his two-level decompression.  On an initial functional 
 
            capacities evaluation in fall, 1987, Bower felt that symptom 
 
            magnification was present and that there was perhaps a 
 
            strong psychological component in claimant's pain levels.  
 
            Bower subsequently referred claimant to Samuel Graham, 
 
            Ph.D., a clinical psychologist, for evaluation.  Claimant 
 
            felt that his intermittent treatment with Dr. Graham helped 
 
            improve his depression and assisted him in being motivated 
 
            to follow through on vocational evaluation and job search.  
 

 
            
 
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            On February 22, 1990, claimant again underwent functional 
 
            capacity evaluation.  Claimant was not felt to be as symptom 
 
            magnifying on that examination.  Claimant was placed in a 
 
            light/medium lifting classification.  Specifically, claimant 
 
            should be permitted to lift infrequently between 35 and 40 
 
            pounds and frequently 20 pounds.  No restriction in his 
 
            range of motion was then demonstrated.
 
            
 
                 In fall, 1987, Dr. Boulden and Mr. Bower opined that 
 
            claimant could not perform the job of bread oven operator 
 
            which he had held prior to his injury.
 
            
 
                 Claimant has worked with vocational rehabilitation 
 
            consultants Carma Mitchell, David Prochaska and Renee 
 
            Barnes.  He also participated in vocational evaluation and 
 
            career planning at the Iowa State Vocational Rehabilitation 
 
            facility from November 1, 1989 through December 7, 1989.  On 
 
            discharge, it was recommended that claimant not include 
 
            completion of the GED in vocational planning except as a 
 
            long-term and questionable goal.  Writing and math skills 
 
            were opined to be the most difficult to upgrade to achieve 
 
            the GED.  No specific competitive employment or training was 
 
            recommended given claimant's lack of physical tolerance and 
 
            his lack of necessary academic skills.
 
            
 
                 Claimant has gone with Renee Barnes, apparently with 
 
            the Iowa State Vocational Rehabilitation, to look for jobs 
 
            in clothing sales.  He planned to look for jobs again on the 
 
            Monday subsequent to his Friday hearing.  Claimant reported 
 
            having attempted to be hired for approximately 25-30 jobs in 
 
            cooking, sales, and gas stations.  Wages offered ranged from 
 
            minimum pay to $7.00 per hour, but no job offers were 
 
            extended to claimant.  Claimant stated he feels down when he 
 
            goes out looking for jobs, but also that he does not mind 
 
            trying.
 
            
 
                 Claimant worked with David Prochaska, a vocational 
 
            rehabilitation consultant the insurer hired, prior to seeing 
 
            Dr. Graham.  Claimant had not applied for most jobs 
 
            Prochaska recommended.  He reported he did so because of his 
 
            difficulties with spelling and handwriting on applications.  
 
            Claimant indicated that Dr. Graham advised him to consult 
 
            state vocational rehabilitation after he discussed those 
 
            problems with Dr. Graham.  David Prochaska and Carma 
 
            Mitchell worked with Colonial Baking to attempt to return 
 
            claimant to work.  Dr. Boulden apparently approved 
 
            claimant's doing janitorial work at Colonial.  Claimant 
 
            worked approximately one-half day in the janitorial job and 
 
            then did not return.  Claimant felt he was unable to do that 
 
            job.  Prochaska then searched for other potential employment 
 
            with Colonial for claimant.  None within claimant's 
 
            restrictions was found.
 
            
 
                 Edward Lynn Greenlee, production superintendent at 
 
            Colonial Bakery, trained claimant on the janitorial job to 
 
            which he returned at Colonial.  Greenlee did not observe 
 
            problems with claimant doing the job and was unaware that 
 
            claimant would not be returning the following day.  Greenlee 
 
            observed claimant moving quickly to get to the front door 
 
            after he had finished his first four hours on that job.  
 

 
            
 
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            Greenlee did not observe signs that claimant was 
 
            experiencing back pain.
 
            
 
                 Beyond claimant's lifting restriction, he is not 
 
            permitted to bend, twist, or sit for prolonged periods.  
 
            Prochaska reported that claimant did not follow up with him 
 
            on job leads and expressed his doubt that claimant had 
 
            followed up on somewhere between 25 and 30 job leads since 
 
            his injury.  Prochaska stated that the job leads he gave 
 
            claimant were generally full-time positions within 
 
            claimant's restrictions and readily available in Des Moines.  
 
            Claimant often did not appropriately contact Prochaska or 
 
            show up for appointments previously made with him.  
 
            Prochaska felt claimant did not appear depressed when 
 
            Prochaska finally made contact with claimant and that 
 
            claimant never expressed the view that he was too depressed 
 
            to follow a job lead or go for an interview.  Prochaska felt 
 
            that in a year's time claimant had actually followed up on 
 
            between 15 and 20 job leads.  Prochaska closed claimant's 
 
            file after he had been out of contact with claimant several 
 
            months.  During that interval, claimant had left the state 
 
            on occasion and did not have a phone.  Claimant had also had 
 
            some car problems at that time and had reported problems 
 
            with his ex-wife.  It is expressly found that, after his job 
 
            injury, claimant initially was not well motivated to seek 
 
            employment and that his work with Dr. Graham has improved 
 
            claimant's motivation to seek employment.  Prochaska opined 
 
            that claimant could perform the duties of the oven operator 
 
            at Colonial Bakery.  He reported that, per the Dictionary of 
 
            Occupational Titles, the oven operator job is classified as 
 
            a light job with occasional lifting of up to 20 pounds.  In 
 
            working with Prochaska, claimant expressed an interest in 
 
            cooking and salad making.  Claimant's transferrable skills 
 
            include the ability to use his hands to carry and pull 
 
            objects, the ability to perform routine work repeatedly, the 
 
            ability to follow simple instructions, the ability to use an 
 
            assortment of tools and equipment, the ability to supervise 
 
            others, knowledge of production machines set up and 
 
            adjustment, inspecting products for conformance to precise 
 
            specifications, directing the work of others, demonstrating 
 
            operation of machines, knowledge of cooking and bakery 
 
            products, and knowledge of janitorial products.  Prochaska 
 
            opined that jobs using those skills are available on a 
 
            regular, full-time basis in Des Moines and offer stable, 
 
            long-term employment.  Earnings for jobs involving those 
 
            skills range from approximately $3.50 to $12.50 per hour.
 
            
 
                 Prochaska opined that claimant could do the jobs 
 
            recommended, even with a fourth grade educational level.
 
            
 
                 Prochaska opined that the bread oven job, if proper 
 
            body mechanics were used, could be done without twisting.  
 
            Prochaska recommended for claimant entry wages which would 
 
            be approximately $4.00-$6.00 per hour.  Prochaska reported 
 
            that mopping, if requiring a twisting action, would be 
 
            outside of claimant's restrictions.
 
            
 
                 Claimant has twice replaced brake pads on his 1977 
 
            Cadillac since his injury.  Apparently, he has replaced them 
 
            only one pad at a time doing the right front wheel in 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            approximately March, 1990.  Claimant's brother assisted him.  
 
            Claimant used a floor jack to hoist the car from the ground 
 
            to work on the brakes.  To replace the brake, the hubcap, 
 
            the tire and the rim must be removed.  The tire and rim 
 
            combined weigh 52 pounds.  A 3/8" ratchet with an Allen head 
 
            with approximately a 32 foot-pound torque is used to remove 
 
            the calipers.  Wheel lugs on a 1977 Fleetwood Cadillac are 
 
            torqued at 100 foot-pounds.  The caliper itself weighs 
 
            between 5 and 10 pounds with the front caliper being closer 
 
            to 5 pounds.  Claimant also changed the spark plugs in his 
 
            car once subsequent to his injury.  It is possible to avoid 
 
            leaning over the car to change plugs by using an extender 
 
            which may be purchased at an auto supply shop.  There is no 
 
            evidence in the record that claimant used an extender, 
 
            however.
 
            
 
                 Kelly Gannon is claimant's girlfriend.  They have lived 
 
            together since April, 1989.  At time of hearing, Ms. Gannon 
 
            was pregnant with claimant's child with a delivery date of 
 
            July, 1990.  In January, 1990, another individual told Ms. 
 
            Gannon that claimant was seeing other people.  Ms. Gannon 
 
            then ordered claimant to move out of her residence.  Ms. 
 
            Gannon subsequently called Crawford & Company and made a 
 
            statement to James Quigley regarding claimant.  Within 24 
 
            hours she reconciled with claimant and then called Quigley 
 
            back to recant her statement.  Quigley acted very irritated 
 
            and hung up on Ms. Gannon.  Ms. Gannon's statement generally 
 
            indicated that claimant could engage in activities outside 
 
            of his restrictions and had no motivation to work.  At 
 
            hearing, both Ms. Gannon and claimant denied the veracity of 
 
            Ms. Gannon's statement.  Each agreed, however, that claimant 
 
            had, on occasion, wrestled playfully with Ms. Gannon.
 
            
 
                 William R. Boulden, M.D., in his deposition taken March 
 
            14, 1990, opined that claimant could not engage in the 
 
            activities that Ms. Gannon described in her statement to Mr. 
 
            Quigley.
 
            
 
                 At hearing, Ms. Gannon stated that, "That day, [she] 
 
            would have done anything [she] could to get back at 
 
            claimant."  Ms. Gannon's statement was offered into evidence 
 
            as defendants' exhibit 27.  We are asked to judge both the 
 
            admissibility and the veracity of Ms. Gannon's statement.  
 
            Admissibility is governed by section 17A.14(1).  That 
 
            subsection provides, in relevant part:
 
            
 
                 Irrelevant, immaterial, or unduly repetitious 
 
                 evidence should be excluded.  A finding shall be 
 
                 based upon the kind of evidence on which 
 
                 reasonably prudent persons are accustomed to rely 
 
                 for the conduct of their serious affairs, . . .
 
            
 
                 We cannot discuss whether reasonably prudent persons 
 
            would rely on a statement such as Ms. Gannon's in the 
 
            conduct of their serious affairs without first discoursing 
 
            on the human condition:  We write songs that suggest that 
 
            the process of human attachment is all gush and goo-goo.  We 
 
            all want to "[K]eep the briars out. . . . You cannot live 
 
            and keep free of briars . . ."  The truth is the most 
 
            difficult task any of us are likely to face from the 
 

 
            
 
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            symbiotic phase onward is that of simultaneously coupling 
 
            comfortably while attaching intensely.  Strong emotions of 
 
            attachment for another inevitably both surprise and confuse 
 
            us.  They bring us face to face with both our worst and best 
 
            selves.  The poet said it well when he stated:
 
            
 
                 The whole process is a lie,
 
                            unless,
 
                                          crowned by excess,
 
                 it break forcefully,
 
                              one way or another,
 
                                          from its confinement--
 
                 or find a deeper well.
 
                 
 
                 . . . 
 
                 
 
                 Romance has no part in it.
 
                           The business of love is
 
                                        cruelty which,
 
                 by our wills,
 
                              we transform
 
                                          to live together.
 
                 It has its seasons,
 
                               for and against,
 
                                           whatever the heart
 
                 fumbles in the dark
 
                             to assert . . . 
 
                 . . .
 
            
 
                 love is cruel
 
                              and selfish
 
                                          and totally obtuse--
 
                 . . .
 
            
 
            (William Carlos Williams, The Ivy Crown)
 
            
 
                 Love, life, whatever it is, being all these things, 
 
            points of high conflict between a particular man and a 
 
            particular woman almost inevitably lead to situations where 
 
            things are said or done that in any other context would be 
 
            incredibly cruel and unforgivable.  In the context in which 
 
            they occur, however, they are just dumb and just life.  
 
            Okay!  Okay!  Sometimes they are wholly stupid and utterly 
 
            asinine and even then, in the context in which they occur, 
 
            they are still just life.  Forgiveness is not even an issue.  
 
            There is no one to condemn and no one to be condemned.  
 
            Persons of compassion and sound judgment recognize these 
 
            realities.  If by chance they should observe two others 
 
            caught in such a muddle, they keep a dispassionate distance, 
 
            recognizing that at such times neither member of the dyad 
 
            can be held to the same standards of conduct to which we 
 
            hold the banker while conducting the business of banking 
 
            during banking hours.
 
            
 
                 Having said all this, it is obvious that the content of 
 
            Ms. Gannon's statement relative to claimant must be placed 
 

 
            
 
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            in the context in which she spoke.  At that particular 
 
            moment, her subjective reality of claimant was of an 
 
            individual of most despicable proportions.  All her past 
 
            experience of him was colored by that subjective belief.  
 
            She felt a need and desire to hurt him as she believed he 
 
            had hurt her.  She acted impulsively and without first 
 
            considering the consequences of her actions overall.  
 
            Reasonably prudent people recognize the emotionality 
 
            surrounding statements made by an individual in such 
 
            subjective conflict; reasonably prudent people acknowledge 
 
            that such statements have little value in reaching a place 
 
            of objective fact; reasonably prudent people do not rely 
 
            upon the content of those statements in conducting their 
 
            serious affairs.  For the above reasons, we find that Ms. 
 
            Gannon's statement both lacks veracity and is not the type 
 
            of evidence on which reasonably prudent persons would rely 
 
            in conducting their serious affairs.
 
            
 
                 We note also that Ms. Gannon's testimony at hearing 
 
            also must be considered in light of her current involvement 
 
            with claimant.  For that reason, it also is given much less 
 
            weight than is given the disinterested observations of Dr. 
 
            Boulden and Mr. Bower.
 
            
 
                 Samuel L. Graham, Ph.D., a clinical psychologist, was 
 
            deposed on February 27, 1990.  Dr. Graham characterized 
 
            claimant as an individual who somatizes his psychological 
 
            discomfort, that is, an individual who when under 
 
            psychological distress is likely to experience an 
 
            intensification of a physical problem such that when under 
 
            psychological distress claimant would perceive his back pain 
 
            as much more intense and much more disabling than at other 
 
            times.  Graham felt that claimant was an individual who 
 
            experienced psychological discomfort in response to 
 
            environmental stressors and that he had a history of doing 
 
            such.  He described claimant relative to his problems in the 
 
            1970's and 1980 as an individual who experienced anxiety and 
 
            dysphoria intensely when having problems in living.  He 
 
            stated that the same process was now going on.  He 
 
            characterized claimant as having problems in living which 
 
            had resulted in feelings of anxiety and dysphoria intense 
 
            enough that he had been referred and had sought additional 
 
            counseling.  Claimant's problems in living included conflict 
 
            with his estranged wife, problems with his girlfriend and 
 
            his back injury.  Graham felt claimant's psychological 
 
            symptoms were not caused by a specific injury or event, but 
 
            were a constitutional part of claimant.  Graham felt that 
 
            the more active and productive claimant was, the better his 
 
            mood would be as long as the activities were within his 
 
            physiological abilities and did not significantly worsen his 
 
            back pain.  He believed a return to work within his physical 
 
            limitations would be therapeutic for claimant.  Graham did 
 
            not believe that claimant's work injury had resulted in a 
 
            permanently disabling psychological condition.
 
            
 
                 The following dialogue ensued as to lost work time:
 
            
 
                 Q.  In your opinion and also to a reasonable 
 
     
 
            
 
            
 
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                 degree of professional certainty, has the 
 
                 psychological condition that you have treated him 
 
                 for necessitated any loss of time from work above 
 
                 and beyond whatever may have been necessitated by 
 
                 his physical condition?
 
            
 
                 A.  The condition has not necessitated any loss of 
 
                 time from work.  The condition may have made it 
 
                 more difficult for him to seek work, but would not 
 
                 have prevented him from working.
 
            
 
            (Graham deposition, page 29, lines 14 through 23)
 
            
 
                 Graham did not believe that claimant showed signs of 
 
            dysphoria or anxiety when last seen.  Graham did feel that, 
 
            should claimant return to work, it would be in claimant's 
 
            best interests for Graham to be available to teach claimant 
 
            about managing pain in the work situation.  Graham felt that 
 
            claimant's explanation for not looking hard and seeking 
 
            employment, i.e., that he could not take the rejection that 
 
            he felt, was consistent with claimant's adjustment disorder 
 
            and the associated loss of self-confidence and self-esteem.  
 
            Graham felt that claimant's back injury, resulting surgery 
 
            and restrictions in physical activities was a substantial 
 
            factor contributing to his adjustment disorder and his need 
 
            for treatment.  Graham felt that while claimant's adjustment 
 
            disorder was resolved, claimant's inability to locate 
 
            employment for a prolonged time could produce disappointment 
 
            that might enhance his dysphoria and anxiety in the future.  
 
            Graham felt that with a verbal IQ of 79 and a non-verbal IQ 
 
            of 93, claimant would do better in jobs that rely less on 
 
            verbal communications, but if physically capable of them, 
 
            claimant could do all kinds of service work including 
 
            cooking hamburgers, waiting on counters, working in a dry 
 
            cleaners or laundry, or making deliveries where logging of 
 
            the deliveries was not required.  Dr. Graham's 
 
            uncontroverted testimony is accepted.
 
            
 
                 William R. Boulden, M.D., an orthopaedic surgeon, was 
 
            deposed on March 14, 1990.  Dr. Boulden opined that the 
 
            changes in claimant's x-ray findings in the lumbar spine 
 
            from 1984 to 1987 represented a significant, accelerated 
 
            progression of his degenerated state such as would not be 
 
            seen naturally in a person of claimant's age.
 
            
 
                 The following dialogue subsequently ensued:
 
            
 
                 Q.  Could he have stenosis without having 
 
                 symptoms?
 
            
 
                 A.  Yes.
 
            
 
                 Q.  And is it the trauma or injury to the spine 
 
                 superimposed on the stenosis that can bring on the 
 
                 symptoms?
 
            
 
                 A.  Oh, it's something that has been in a balance 
 
                 to date before the symptoms develop, and it takes 
 
                 something usually to set it off, especially in the 
 
                 younger population.  In the elderly when we see 
 

 
            
 
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                 stenosis, we're talking about people over the 65, 
 
                 70 range.  They can get stenosis without traumatic 
 
                 events because we're talking about now an 
 
                 end-staged degenerated spine, whereas in a 29- to 
 
                 30-year old person, in Mr. King's case, his spine 
 
                 is not totally degenerated.  It's not an 
 
                 end-staged, naturally degenerative spine.  So 
 
                 something has set the symptoms in motion, and not 
 
                 necessarily that the pathology has changed from 
 
                 being very minute to very severe set off with one 
 
                 traumatic event.  The symptoms have changed from 
 
                 not being symptomatic to being symptom--I mean, to 
 
                 being symtomatic [sic] --excuse me, I used the 
 
                 wrong terms--that something has occurred; a bend, 
 
                 usually a twisting is the worst thing.
 
            
 
                 When we see spinal injuries in general--twisting 
 
                 injuries are the most common--that they can set 
 
                 off something, like a ruptured disk pulling on a 
 
                 nerve and making it irritated, and then because 
 
                 there started to be irritation there already 
 
                 existed, tightness, or stenosis in this case, can 
 
                 keep it in motion, keep it going.
 
            
 
            (Dr. Boulden deposition, page 40, line 2 through page 41, 
 
            line 8)
 
            
 
                 It is specifically found that claimant's work injury 
 
            aggravated and made symptomatic his preexisting stenosis.  
 
            Dr. Boulden felt that notations of recurrent back pain in 
 
            1985 would be indicative of ongoing degenerative changes in 
 
            the back, but not necessarily stenosis because the notations 
 
            did not refer to leg pain or leg fatiguability.
 
            
 
                 Dr. Boulden also opined, however, that nothing found at 
 
            surgery was related to a specific trauma as far as 
 
            pathological change.  Dr. Boulden reported claimant as 
 
            having a temporary flare-up of his back pain when released 
 
            back to janitorial work at Colonial such that he stopped 
 
            after about four hours.  Dr. Boulden expressed his opinion 
 
            that the 10 percent permanent partial impairment rating 
 
            which he gave claimant under the orthopaedic guides related 
 
            wholly to new pathological changes and surgery subsequent to 
 
            his injury and not to any preexisting condition.
 
            
 
                 Dr. Boulden stated that his opinion that maximum 
 
            medical improvement was reached initially on March 21, 1988 
 
            related only to claimant's orthopaedic condition and not to 
 
            any psychological condition.  Dr. Boulden opined that, with 
 
            his back condition and without considering his intellectual 
 
            abilities, claimant could work in an auto parts department; 
 
            he could work as a salesperson; he could do jobs involving 
 
            short distance driving; he could check freight; and, he 
 
            could work as a security officer.  Dr. Boulden's 
 
            uncontroverted testimony is accepted.
 
            
 
                                conclusions of law
 
            
 
                 We first consider whether claimant has established an 
 
            injury arising out of and in the course of his employment.
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on August 26, 
 
            1987 which arose out of and in the course of his employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 
 
            68 N.W.2d 63 (1955). 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto 
 
            Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).
 
            
 
                 "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 v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Musselman v. 
 
            Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). 
 
            
 
                 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 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
                 Compensation Law, obviously means an injury to the 
 
                 body, the impairment of health, or a disease, not 
 
                 excluded by the act, which comes about, not through the 
 
                 natural building up and tearing down of the human body, 
 
                 but because of a traumatic or other hurt or damage to 
 
                 the health or body of an employee.  [Citations 
 
                 omitted.]  The injury to the human body here 
 
                 contemplated must be something, whether an accident or 
 
                 not, that acts extraneously to the natural processes of 
 
                 nature, and thereby impairs the health, overcomes, 
 
                 injures, interrupts, or destroys some function of the 
 
                 body, or otherwise damages or injures a part or all of 
 
                 the body.
 
            
 
                 We note initially that claimant appears to have been a 
 
            credible witness.  The instances that defendants cite in 
 
            their brief as evidence of a lack of credibility by way of 
 
            statement or behavior of claimant do not appear founded.  
 
            Rational explanations for claimant's behavior are available 
 
            in each instance.  Likewise, his statements where discrepant 
 
            are not outside the limits of what might be simple error 
 
            attributable to a layman's knowledge of the matters about 
 
            which he spoke.  In is undisputed that a work incident 
 
            occurred.  Defendants argue that no new injury arising out 
 
            of and in the course of claimant's employment occurred, but 
 
            rather that any problems subsequent to the work incident 
 
            were a mere continuation and manifestation of claimant prior 
 
            nonwork-related condition.  Dr. Boulden's deposition 
 
            testimony controverts defendants' position.  Dr. Boulden has 
 
            testified that, with an individual of claimant's age, 
 
            symptomatic stenosis is generally the result of a traumatic 
 
            event.  He has further testified that claimant's condition 
 
            prior to his alleged injury did not involve stenosis as 
 
            claimant did not have leg pain prior to the alleged injury.  
 
            Dr. Boulden's testimony is uncontroverted.  Dr. Boulden's 
 
            testimony results in a conclusion that claimant did receive 
 
            an injury arising out of and in the course of his employment 
 
            on August 26, 1987 which injury is causally related to 
 
            claimant's claimed disability in that the work incident made 
 
            symptomatic claimant's stenosis.
 
            
 
                 A causal relationship question also exists as to 
 
            whether claimant is entitled to additional temporary total 
 
            or healing period disability on account of his care with Sam 
 
            L. Graham, Ph.D.  We note initially that Dr. Graham as a 
 
            clinical psychologist is not considered a medical 
 
            practitioner who can render an expert opinion as regards 
 
            claimant's psychological condition.  See Lucia v. Vitalis 
 
            Truck Lines, I Iowa Industrial Commissioner Report 210 
 
            (1981); Assmann v. Blue Star Foods, Inc., file number 866389 
 
            (Decl. Ruling, May 18, 1988).  Dr. Graham, of course, is 
 
            certainly entitled to testify within the realm of his own 
 
            specialty of clinical psychology, however.  We note also the 
 
            following.
 
            
 
                 Section 85.34(1), Code of Iowa, provides that healing 
 
            period benefits are payable to an injured worker who has 
 
            suffered permanent partial disability until (1) he has 
 
            returned to work; (2) is medically capable of returning to 
 
            substantially similar employment; or (3) has achieved 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            maximum medical recovery.  The industrial commissioner has 
 
            recognized that healing period benefits can be interrupted 
 
            or intermittent.  Willis v. Lehigh Portland Cement Co., Vol. 
 
            2-1, State of Iowa Industrial Commissioner Decisions 485 
 
            (1984).
 
            
 
                 Defendants argue that claimant's healing period should 
 
            end on March 21, 1988 when Dr. Boulden released claimant to 
 
            return to work from an orthopaedic standpoint.  Claimant 
 
            argues that claimant's healing period should apparently 
 
            continue during that time in which he received treatment 
 
            from Dr. Graham on account of his psychological condition.  
 
            Dr. Graham's testimony has established factually that 
 
            claimant's work injury and its sequelae lighted up 
 
            claimant's preexisting, but at that time latent, 
 
            psychological condition.  Dr. Graham's testimony when 
 
            coupled with claimant's testimony, indicates that the 
 
            condition made it more difficult for claimant to seek work.  
 
            Claimant could not return to the work he had been doing at 
 
            the bakery when injured; nor could claimant return to 
 
            substantially similar work.  Likewise, claimant could not 
 
            readily seek other employment or vocational rehabilitation 
 
            until his psychological problem was effectively treated.  
 
            Given the above, it cannot be said that claimant had reached 
 
            maximum medical healing until such point as the effects of 
 
            his lighted up psychological condition on his ability to 
 
            seek employment had been appropriately addressed.  
 
            Claimant's treatment with Dr. Graham had an efficacious 
 
            effect on his psychological well being such that claimant 
 
            has subsequently been able to seek other employment more 
 
            effectively.  Dr. Graham first saw claimant on August 17, 
 
            1988.  As of November, 1988, Dr. Graham recommended 
 
            continuing care for claimant.  Defendants refused to pay for 
 
            such care and claimant was not again seen until August 1, 
 
            1989.  Claimant at that time did not show signs of dysphoria 
 
            or anxiety.  He had apparently at that time reached a state 
 
            of maximum psychological improvement.  The failure of 
 
            defendants to provide the recommended care in the interim 
 
            makes it impossible to determine when claimant reached 
 
            maximum improvement after November, 1988 and prior to August 
 
            1, 1989 such that he no longer needed psychological services 
 
            to assist him in regaining motivation to seek rehabilitation 
 
            and employment.  Defendants' refusal to provide the 
 
            recommended care produced this dilemma.  For that reason, 
 
            the date best available for determining maximum 
 
            psychological improvement is August 1, 1989.  Claimant is 
 
            entitled to additional healing period benefits to that date.
 
            
 
                 We reach the question of claimant's permanency 
 
            entitlement including the related question of whether 
 
            claimant is an odd-lot worker under the Guyton doctrine.
 
            
 
                 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 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, 1985).
 
            
 
                 For example, a defendant employer's refusal to give any 
 
            sort of work to a claimant after he suffers his affliction 
 
            may justify an award of disability.  McSpadden v. Big Ben 
 
            Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
            
 
                 Similarly, a claimant's inability to find other 
 
            suitable work after making bona fide efforts to find such 
 
            work may indicate that relief would be granted.  McSpadden 
 
            v. Big Ben Coal Co., 388 N.W.2d 181 (Iowa 1980).
 
            
 
                 In Guyton v. Irving Jensen Co., 373 N.W.2d 101, 103 
 
            (Iowa 1985), the Iowa court formally adopted the "odd-lot 
 
            doctrine."  Under that doctrine a worker becomes an odd-lot 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            employee when an injury makes the worker incapable of 
 
            obtaining employment in any well-known branch of the labor 
 
            market.  An odd-lot worker is thus totally disabled if the 
 
            only services the worker can perform are "so limited in 
 
            quality, dependability, or quantity that a reasonably stable 
 
            market for them does not exist.
 
            
 
                 The burden of persuasion on the issue of industrial 
 
            disability always remains with the worker.  However, when a 
 
            worker makes a prima facie case of total disability by 
 
            producing substantial evidence that the worker is not 
 
            employable in the competitive labor market, the burden to 
 
            produce evidence of suitable employment shifts to the 
 
            employer.  If the employer fails to produce such evidence 
 
            and the trier of fact finds the worker does fall in the 
 
            odd-lot category, the worker is entitled to a finding of 
 
            total disability.  Id.  Even under the odd-lot doctrine, the 
 
            trier of fact is free to determine weight and credibility of 
 
            evidence in determining whether the worker's burden of 
 
            persuasion has been carried, and only in an exceptional case 
 
            would evidence be sufficiently strong to compel a finding of 
 
            total disability as a matter of law.  Id.  In Guyton, the 
 
            court also stated the following regarding determination of a 
 
            worker's industrial loss.
 
            
 
                    The question is more than the one posed by the 
 
                 commissioner concerning what the evidence shows 
 
                 Guyton "can or cannot do."  The question is the 
 
                 extent to which the injury reduced Guyton's 
 
                 earning capacity.  This inquiry cannot be answered 
 
                 merely by exploring the limitations on his ability 
 
                 to perform physical activity associated with 
 
                 employment.  It requires consideration of all the 
 
                 factors that bear on his actual employability.  
 
                 See New Orleans (Gulfwide) Stevadores v. Turner, 
 
                 661 F.2d 1031, 1042 (5th Cir. 1981) (are there 
 
                 jobs in the community that the worker can do for 
 
                 which he could realistically compete?)  Id.
 
            
 
                 Initially, we reject claimant's argument that he is an 
 
            odd-lot worker under Guyton.  Claimant has physical 
 
            restrictions which make it impossible for him to do heavy 
 
            work.  Claimant, on written testing, has somewhat limited 
 
            educational capacities.  Claimant's responses at hearing as 
 
            well as his demeanor at hearing suggest that his actual 
 
            level of intellectual functioning is at least somewhat 
 
            higher than that scored on written testing, however.  
 
            Likewise, Mr. Prochaska's testimony, as well as Dr. 
 
            Boulden's testimony, supports a finding that there are jobs 
 
            available in the local market which claimant could perform, 
 
            even given the combination of his physical limitations, his 
 
            educational deficiencies and his perhaps somewhat limited 
 
            intellectual functioning.  For those reasons, claimant has 
 
            not established prima facie that he is an odd-lot worker.
 
            
 
                 We next consider the nature and extent of claimant's 
 
            actual permanent partial disability entitlement.
 
            
 
                 Claimant has a moderate physical impairment on account 
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            of his work injury.  He has difficulty with excessive 
 
            sitting and standing and is not to lift more than 35-40 
 
            pounds infrequently and 20 pounds frequently.  Twisting is 
 
            apt to cause him great difficulty.  Claimant's intellectual 
 
            attainment as measured on written tests is at the elementary 
 
            school level.  His actual performance level may be somewhat 
 
            higher, however.  Claimant is unable to return to his 
 
            previous employment.  His employer has attempted a work 
 
            return for him, however, and cannot under the facts 
 
            presented be considered as having not made a reasonable 
 
            attempt to return claimant to work.  Claimant has a variety 
 
            of transferrable skills and both Mr. Prochaska and Dr. 
 
            Boulden believe that these could translate into jobs 
 
            available in the local labor market.  Claimant's motivation, 
 
            unfortunately, remains at best tentative.  While it is true 
 
            that claimant's motivation was impaired on account of his 
 
            psychological condition early on subsequent to his injury, 
 
            the record reflects that since at least August, 1989, such 
 
            should not have been a primary factor in any failure of 
 
            claimant to routinely attempt a job search.  Claimant, 
 
            unfortunately, has made only limited attempts to search for 
 
            work during that time.  Claimant's limited job search makes 
 
            assessment of his actual loss of earnings more difficult.  
 
            It does appear though that light-medium weight jobs not 
 
            requiring great educational attainment or acumen are 
 
            available to claimant.  Claimant was looking for work in 
 
            clothing sales at time of hearing.  Apparently both claimant 
 
            and the vocational specialist with whom he was working at 
 
            that time felt this was a realistic goal for claimant.  
 
            Indeed, claimant appeared a personable individual who might 
 
            do well in some form of sales work not requiring substantial 
 
            record keeping.  Such appears to be well within the 
 
            recommendations of Mr. Prochaska.
 
            
 
                 Claimant is a younger worker.  The variety of jobs he 
 
            held both prior to beginning work for Colonial Baking 
 
            Company and the variety of jobs he held at Colonial suggests 
 
            that he has some capacity for both transferring preexisting 
 
            skills and acquiring new skills.  When coupled with his 
 
            younger age and with sufficient motivation, that should work 
 
            to claimant's advantage despite his physical restrictions 
 
            and educational deficiencies.  It is agreed, however, that 
 
            the nature of the jobs now available to claimant is such 
 
            that he will now neither be assured the substantial hourly 
 
            wage nor the additional benefits which he received from 
 
            working at Colonial Baking Company.  Likewise, he is 
 
            restricted from the large variety of heavier laboring 
 
            occupations that he could otherwise have entered.  Such 
 
            heavier labor occupations often are significantly more 
 
            lucrative than are jobs classified in the light-medium 
 
            weight category, especially where the light-medium weight 
 
            category job does not require significant intellectual or 
 
            educational prowess.
 
            
 
                 When all of the above are considered, it is recognized 
 
            that claimant's loss of earning capacity on account of his 
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
            injury is significant, but not overwhelmingly so.  It is 
 
            concluded that claimant has sustained an industrial 
 
            disability of 45 percent of the body as a whole on account 
 
            of his August 26, 1987 injury.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants pay claimant permanent partial disability 
 
            benefits for two hundred twenty-five (225) weeks at the rate 
 
            of two hundred seventy-seven and 17/100 dollars ($277.17) 
 
            per week with payments to commence on August 2, 1989.  
 
            Defendants receive credit for benefits already paid.
 
            
 
                 Defendants pay claimant healing period benefits from 
 
            his injury through August 1, 1989 at the rate of two hundred 
 
            seventy-seven and 17/100 dollars ($277.17) per week.  
 
            Defendants receive credit for benefits already paid.
 
            
 
                 Defendants pay accrued amounts in a lump sum.
 
            
 
                 Defendants pay interest pursuant to section 85.30, as 
 
            amended.
 
            
 
                 Defendants pay costs pursuant to Division of Industrial 
 
            Services Rule 343-4.33.
 
            
 
                 Defendants file claim activity reports as requested by 
 
            the agency pursuant to Division of Industrial Services Rule 
 
            343-3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          HELENJEAN WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James R. Lawyer
 
            Attorney at Law
 
            West Towers Office Building
 
            1200 35th Street, Suite 500
 
            W. Des Moines, Iowa  50265
 
            
 
            Mr. Michael R. Hoffmann
 
            Attorney at Law
 
            Breakwater Building
 
            3708 75th Street
 
            Des Moines, Iowa  50322
 
            
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
                                               1108.50, 1802, 1803
 
                                               3700, 4100
 
                                               Filed September 26, 1990
 
                                               HELENJEAN WALLESER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ELIAS KING,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 863824
 
            COLONIAL BAKING COMPANY,      :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            INSURANCE CO. OF NORTH        :
 
            AMERICA,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1108.50
 
            Held that claimant had shown causal relationship in injury 
 
            arising out of and in the course of his employment in 
 
            development of stenosis after twisting injury at work.
 
            
 
            1802
 
            Held that claimant was entitled to healing period benefits 
 
            during the time in which he was unable to effectively seek 
 
            employment on account of aggravation of preexisting 
 
            psychological condition as a result of his injury.  
 
            Preexisting psychological condition which was lighted up by 
 
            the injury did not make claimant unable to work physically, 
 
            but did make claimant unable to actively seek employment.  
 
            Psychologist whom orthopaedic surgeon and physical therapist 
 
            had recommended claimant see recommended that claimant 
 
            undergo additional treatment for that condition.  Defendants 
 
            refused to pay for such treatment.  Claimant, therefore, was 
 
            not seen by the psychologist for a  ten-month period.  At 
 
            the end of that time, claimant was found to be symptom free.  
 
            Healing period was held to run until psychologist last saw 
 
            claimant and found claimant symptom free in that defendants 
 
            by refusing to provide treatment as recommended had made it 
 
            impossible to determine a more appropriate end to the 
 
            healing period.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            1803, 4100
 
            Claimant, who is restricted from heavy labor and who had 
 
            limited education as well as some intellectual problems, was 
 
            found to be 45 percent industrially disabled.  Claimant, who 
 
            lacked motivation to work, was not found an odd-lot worker 
 
            under the Guyton doctrine.
 
            
 
            3700
 
            Held that under section 17A.14(1), statements made by one 
 
            member of a romantic dyad against another during a period of 
 
            heightened conflict between the couple were not the types of 
 
            statements on which reasonably prudent persons were 
 
            accustomed to rely in the conduct of their serious affairs.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DENNIS BABER,                 :
 
                                          :
 
                 Claimant,                :      File No.  863900
 
                                          :
 
            vs.                           :
 
                                          :  A R B I T R A T I O N
 
            ALUMINUM COMPANY OF AMERICA,  :
 
                                          :      D E C I S I O N
 
                 Employer,                :    
 
                 Self-Insured,            :      
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                                   INTRODUCTION
 
            
 
                 This is a proceeding in arbitration brought by Dennis 
 
            Baber, claimant, against Aluminum Company of America, 
 
            employer and self-insured defendant, for benefits as the 
 
            result of an alleged injury that occurred on August 20, 
 
            1987.  A hearing was held on October 26, 1989, at Davenport, 
 
            Iowa, and the case was fully submitted at the close of the 
 
            hearing.  Claimant was represented by Michael W. Liebbe.  
 
            Defendant was represented by Thomas N. Kamp.  The record 
 
            consists of the testimony of Dennis Baber, claimant; Ernest 
 
            Houston, electrician; Floyd T. Neubauer, electrician; Greg 
 
            Guideback, safety coordinator; Sylvester L. Casta, M.D., 
 
            medical director; Gary Mlakar, senior safety engineer; Kevin 
 
            O'Brien, personnel staff assistant; joint exhibits 1 through 
 
            10 with 129 consecutively numbered pages and claimant's 
 
            exhibit 1 through 9 with 13 consecutively number pages.  The 
 
            deputy ordered a transcript of the hearing.  Both attorneys 
 
            submitted excellent briefs.
 
            
 
                                   stipulations
 
            
 
                 The parties stipulated to the following matters at the 
 
            time of the hearing:
 
            
 
                 That an employer-employee relationship existed between 
 
            claimant and employer at the time of the injury.
 
            
 
                 The the time off work for which claimant seeks 
 
            temporary disability benefits is stipulated to be from 
 
            August 21, 1987 through October 19, 1987.  
 
            
 
                 That the type of permanent disability, in the event the 
 
            injury is determined to be a cause of permanent disability, 
 
            is industrial disability to the body as a whole.
 
            
 
                 That the commencement date for permanent disability 
 
            benefits, in the event such benefits are awarded, is October 
 
            20, 1987.
 
            
 
                 That the rate of compensation, in the event of an 
 
            award, is $366.90 per week.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 That claimant's entitlement to medical expenses will be 
 
            paid by defendants if it is determined that claimant 
 
            sustained a compensable workers' compensation injury.
 
            
 
                 That defendants paid claimant $1,970.55 in disability 
 
            income benefits prior to hearing under an employee 
 
            nonoccupational group health plan and that defendants are 
 
            entitled to a credit in this amount in the event of an 
 
            award.
 
            
 
                 That defendants make no claim for workers' compensation 
 
            benefits paid to claimant prior to hearing.
 
            
 
                 That there are no bifurcated claims.
 
            
 
                 That the issue of medical benefits under Iowa Code 
 
            section 85.27 and the issue of credit under Iowa Code 
 
            section 85.38(2) for disability income paid to claimant 
 
            prior to hearing, which are shown as hearing issues on the 
 
            hearing assignment order, were withdrawn as hearing issues 
 
            by the parties 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 August 20, 
 
            1987, which arose out of and in the course of employment 
 
            with employer.
 
            
 
                 Whether the alleged injury was the cause of temporary 
 
            disability.
 
            
 
                 Whether the alleged injury was the cause of permanent 
 
            disability.
 
            
 
                 Whether claimant is entitled to temporary disability 
 
            benefits.
 
            
 
                 Whether claimant is entitled to permanent disability 
 
            benefits, and if so, the extent of benefits to which 
 
            claimant is entitled.
 
            
 
                                        
 
            
 
                             summary of the evidence
 
            
 
                 Claimant, born August 26, 1948, was almost 39 years old 
 
            at the time of the alleged injury, on August 20, 1987.  He 
 
            was 41 years old at the time of the hearing.  His education 
 
            was not introduced into evidence, but his counsel stated in 
 
            the posthearing brief that, "...Claimant has no formal 
 
            education past high school."  (claimant's brief page 1).  
 
            Claimant began an apprenticeship to become an electrician in 
 
            1966 and he testified that he was a journeyman electrician 
 
            at the time of the hearing and had been for several years.  
 
            Past employments include the owner-operator of a semi-truck, 
 
            making local deliveries as a truck driver, and working as a 
 
            construction electrician.  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Claimant started to work for employer in December of 
 
            1980.  A preemployment health history is dated October 24, 
 
            1980.  An x-ray bearing the same date disclosed that 
 
            claimant had a first degree spondylolisthesis of L5 and S1 
 
            (joint exhibit page 128).  Employer's medical director, E.M. 
 
            Stimac, M.D., had anticipated restricting claimant to class 
 
            three labor (jt. ex. p. 129) and imposing a maximum weight 
 
            lifting restrictions of both 30 pounds and 50 pounds (jt. 
 
            ex. p. 52), but after having claimant evaluated by John S. 
 
            Sinning, M.D., an orthopedic surgeon, (jt. ex. JJ pp. 55 & 
 
            56) permitted claimant to go to work without restrictions 
 
            (tr. p. 130).  On November 26, 1980, Dr. Stimac commented, 
 
            "Consult from Dr. Sinning feels ok for man to be hired 
 
            without restriction.  Feels that at this age, likely-hood of 
 
            further slipping not likely." (jt. ex. pp. 52 & 53).  Dr. 
 
            Stimac sent Dr. Sinning a description of claimant's job 
 
            requirements (jt. ex. p. 56).
 
            
 
                 Dr. Sinning evaluated claimant for work as an 
 
            electrician doing maintenance type work.  He said the x-rays 
 
            demonstrated minimal spondylolisthesis.  Dr. Sinning took 
 
            supplemental films taken in flexion and extension centered 
 
            at L5 and found no untoward motion.  Dr. Sinning said, "The 
 
            slip does not increase." Dr. Sinning concluded, "I would 
 
            recommend hiring Mr. Baber without restrictions according to 
 
            the employment description that has been supplied to me 
 
            covering electrician."  He added that Mr. Baber had several 
 
            years of heavy work without symptoms and he believed that 
 
            claimant represented a good risk.  Dr. Sinning's evaluation 
 
            did not include an impairment rating (jt. ex. pp. 54 & 55).
 
            
 
                 Claimant testified that his only previous back injury 
 
            occurred after sneezing in the early 70's.  He saw a 
 
            chiropractor for this injury (transcript pp. 19 & 20).  
 
            
 
                 He also admitted to a whiplash type of injury and was 
 
            treated by H.D. Bobb, D.C., in approximately 1983.  A letter 
 
            from Dr. Bobb verified that he treated claimant in 1984 for 
 
            right arm numbness and pain into his shoulder from his lower 
 
            neck down.  His diagnosis was cervicobrachial syndrome with 
 
            cervical subluxation of C-4 and C-5 (jt. ex. p. 23).  
 
            Claimant denied that Dr. Bobb treated his lower back and 
 
            there was no evidence that Dr. Bobb did treat his lower back 
 
            (tr. p. 22).  
 
            
 
                 Claimant also admitted that he saw L.J. Diamond, D.C., 
 
            for a work-related injury to his right shoulder (tr. p. 23).  
 
            Dr. Diamond reported that he treated claimant for an injury 
 
            to his neck-upper thoracic spine and shoulder which may have 
 
            happened lifting a heavy box.  He said he also treated 
 
            claimant for a small vehicle accident at work which caused a 
 
            whiplash injury and right arm numbness in 1983.  Dr. Diamond 
 
            said he had not seen claimant since 1986 (jt. ex. p. 24).  
 
            
 
                 Claimant indicated that all of these treatments were 
 
            for his neck and shoulder (tr. p. 23), however, defendant's 
 
            counsel correctly pointed out that some of the treatments by 
 
            Dr. Diamond were to the lumbar spine as well as the upper 
 
            spine (jt. ex. p. 30).  Claimant responded that the doctor 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            might have adjusted his lower spine, but he was not aware of 
 
            it (tr. pp. 42-44).  
 
            
 
                 Claimant testified that on Thursday, August 20, 1987, 
 
            he was pulling coax.  Coax is a specialized wire for 
 
            communication.  It has one conductor running through a 
 
            shielded cable to filter out magnetic interference.  He 
 
            picked up a box of this wire and he felt an ache in his 
 
            back.  He said he told the guys he was working with that his 
 
            back didn't feel good.  He put a heating pad on it that 
 
            night and burned his back.  Claimant said he reported the 
 
            coax injury to the medical department the following day on 
 
            Friday, August 21, 1987.  The company sent him to see John 
 
            A. Baker, M.D., an orthopedic surgeon on Monday, August 24, 
 
            1987 (tr. pp. 24-26).  Claimant was taken off work from 
 
            August 21, 1987 through October 19, 1987.  
 
            
 
                 Claimant testified that prior to the injury he did not 
 
            work under any restrictions.  When he returned to work Dr. 
 
            Baker had imposed restrictions of not lifting more than 25 
 
            pounds and that he was not supposed to do anything for over 
 
            an hour (tr. pp. 29 & 30).  Claimant admitted that he was 
 
            never told that he could not work overtime (tr. p. 30).  
 
            Claimant testified that overtime has been available, but he 
 
            voluntarily chose not to do it because he found it 
 
            physically taxing.  He testified that he rested up on the 
 
            weekends (tr. pp. 30 & 31).  
 
            
 
                 Claimant testified and showed his income tax W-2 forms 
 
            to show that he earned $31,591.74 in 1985 and $36,851.27 in 
 
            1985 (tr. pp. 31 & 32; claimant's ex. pp. 11 & 12).  
 
            Claimant further testified that from January 1, 1989 to 
 
            October 15, 1989, he had only earned $23,321.55 (tr. p. 32).
 
            
 
                 Claimant acknowledged that on Wednesday, August 19, 
 
            1987, he played water volleyball with people from work, but 
 
            denied any injury from playing water volleyball and 
 
            testified his lower back was in good condition when he came 
 
            to work on August 20, 1987 (tr. pp. 33-37).  
 
            
 
                 Claimant reaffirmed that he had elected not to work 
 
            overtime (tr. p. 39).  He examined employer's records and 
 
            agreed with defendant's counsel that he refused overtime 
 
            from June 13, 1987 through June 18, 1988 (tr. pp. 39-41).  
 
            Claimant testified that except for a 30 day disciplinary 
 
            layoff that he has worked steady since he returned to work 
 
            on October 20, 1987 doing his regular job, eight hours a 
 
            day, within the restrictions (tr. p. 45).  
 
            
 
                 Ernest Houston, an electrician for 19 years for 
 
            employer, said that he never missed a night playing water 
 
            volleyball.  He did not specifically recall the night of 
 
            August 19, 1987, but said that claimant played real regular 
 
            with the group at times.  He never heard claimant complain 
 
            of a back problem.  He said that an electrician can usually 
 
            always work overtime on a six day basis for the last 19 
 
            years.  He usually works seven days a week.  Saturday pays 
 
            time and a half; Sunday pays double time.  Houston testified 
 
            that claimant does not work overtime (tr. pp. 45-53).
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 Floyd Neubauer testified that he has been employed as a 
 
            construction electrician for employer since September 17, 
 
            1979.  He was working with claimant at the time of the 
 
            alleged injury on August 20, 1987 (tr. pp. 56 & 57).  They 
 
            began re-routing coax cable on Monday, August 17, 1987.  He 
 
            described that the job required lifting, pushing and pulling 
 
            of the wire and crawling and climbing in precarious places, 
 
            "...on top of railings and on the side of the buildings and 
 
            [we] looked like a couple of human flies."  
 
            
 
                 On Friday, August 21, 1987, he saw claimant was in 
 
            obvious pain.  Neubauer said claimant reported to the 
 
            medical department around 12:30 p.m. and went home (tr. pp. 
 
            62-65).  He testified that on Monday, August 17, 1987, that 
 
            claimant, in general conversation, wiggled his shoulders and 
 
            indicated that his back was stiff.  Between Monday, August 
 
            17, 1987 and Thursday, August 27, 1987, Neubauer testified 
 
            that somehow he lost a day (tr. pp. 63 & 66).  However, on 
 
            one of those days, either Wednesday or Thursday morning, 
 
            early, he observed claimant walking in an unusual manner as 
 
            if not to jar himself (tr. p. 66).  Neubauer testified that 
 
            claimant made no complaint to him that he felt any pain 
 
            after lifting a box of cable (tr. p. 67).  Neubauer 
 
            acknowledged they did physically demanding work all day long 
 
            on August 20, 1987 (tr. p. 68).  He estimated the box of 
 
            cable would weigh between 25 and 35 pounds (tr. p. 69).  
 
            Neubauer testified that on Friday morning, August 21, 1987, 
 
            claimant came to work with a heating pad underneath his 
 
            clothes and plugged it in while he worked sitting down (tr. 
 
            pp. 71-74).
 
            
 
                 On cross-examination, Neubauer granted that he did not 
 
            keep a logbook of his daily activities.  He sometimes made 
 
            notes, but he had no written record of what occurred on 
 
            Monday, August 17, 1987.  Neubauer contended that he could 
 
            remember this date because he was aggravated that he had to 
 
            work with claimant because he did not like claimant's 
 
            working habits (tr. pp. 75-78).  Neubauer reiterated, 
 
            "Nothing indicated it to me on Monday that he had some sort 
 
            of physical problem.  All he said to me on Monday was how 
 
            you roll your shoulder and say, gee, my back is stiff.  
 
            That's all he said to me.  That's a passing comment.  That's 
 
            not a statement of a problem." (tr. p. 78).  Neubauer 
 
            acknowledged that the shoulders would not indicate a lower 
 
            back problem (tr. pp. 78 & 80).  
 
            
 
                 Claimant made no complaints on Tuesday, August 18, 
 
            1987.  Neubauer admitted that he could not remember what day 
 
            claimant was walking gingerly because he lost a day from his 
 
            memory (tr. p. 80).  Neubauer admitted that this did not 
 
            necessarily indicate a back injury, but it could have 
 
            indicated a sprained ankle or a sore foot (tr. p. 81).
 
            
 
                 Greg Guideback testified that he is an 11 year employee 
 
            of employer.  At the time of the alleged injury he was the 
 
            safety coordinator for the maintenance department and 
 
            claimant was under his jurisdiction.  He and others 
 
            conducted an investigation a week or a week and a half after 
 
            the alleged injury which was normal plant procedure.  
 
            Claimant told him that he lifted a box of coax and put it 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            into the aerial lift basket on Thursday.  He had a sore back 
 
            Thursday night and Friday.  Claimant told Guideback this was 
 
            the most likely time when the injury could have occurred.  
 
            
 
                 Guideback said claimant worked overtime when he first 
 
            started to work for employer in the early 80's, but there 
 
            came a point where he elected not to work any overtime.  The 
 
            witness explained joint exhibit pages 31, 32 and 33 labeled 
 
            "Employee History" of overtime for claimant for the period 
 
            from June 13, 1987 through June 18, 1988.  Claimant refused 
 
            to work overtime (tr. pp. 83-92; jt. ex. pp. 31-33).  
 
            Guideback speculated that claimant's income would be lower 
 
            in 1989 because he refused to work weekends, missed some 
 
            regular weekdays and had been the subject of a 30-day 
 
            disciplinary action (tr. pp. 93 & 94).
 
            
 
                   Guideback testified that claimant told him that he 
 
            picked up a box of wire with his right hand, it weighed 25 
 
            to 30 pounds.  Claimant said it felt a little tender at that 
 
            time; no bad pain.  It hurt worse that night (tr. p. 101).  
 
            Guideback testified that claimant failed to follow company 
 
            procedure by notifying his supervisor before reporting to 
 
            medical on Friday, August, 21, 1987.
 
            
 
                 Sylvester L. Casta, M.D., medical director for 
 
            employer, testified that he has practiced medicine for about 
 
            20 years, that he is licensed to practice in New Jersey and 
 
            Iowa, and that as plant physician he dealt generally with 
 
            occupational medicine.  Dr. Casta verified that he completed 
 
            the "Notice of Work Restriction-Back Condition" for 
 
            claimant.  This restriction reads as follows:
 
            
 
                 Nature of Disability:  SPONDYLOLISTHESIS WITH 
 
                 SPINAL RADICULAR SYNDROME
 
            
 
                 RESTRICTIONS:
 
            
 
                    -Lifting should be limited to 25 pounds.
 
            
 
                    -Pulling or pushing should be limited to 
 
                 objects         within the weight lift limit.
 
            
 
                    -No repetitive stooping, bending, twisting or             
 
                 squatting. (Example: digging, shoveling or                        
 
                 stacking, etc.)  Occasional stooping, bending,          
 
                 squatting [sic] or twisting is permissible              
 
                 providing the weight being handled is within the        
 
                 weight lift limit.
 
            
 
                    -Not to work in semi-stooped position for long            
 
                 periods.
 
            
 
                    -To avoid prolonged standing (over 1 hour).
 
            
 
            (jt. ex. p. 60)
 
            
 
                 Dr. Casta instituted these restrictions on October 19, 
 
            1987.  They were reviewed on February 9, 1988.  
 
            
 
                 Dr. Casta testified that based upon his 30 years of the 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            practice of medicine and his professional medical opinion, 
 
            he would have imposed a 50 pound weight restriction when 
 
            claimant was hired in 1980 (tr. pp. 105 & 106).  Dr. Casta 
 
            could not recall why on October 13, 1987, he imposed the 
 
            other restrictions beyond the lifting restriction, but he 
 
            did know they were not suggested by Dr. Baker, the treating 
 
            orthopedic physician.  Dr. Casta testified that if Dr. Baker 
 
            had not imposed a 25 pound lifting restriction that he 
 
            himself would have imposed a 35 pound weight restriction 
 
            with a view to raising it to 50 pounds later, but he would 
 
            not go over 50 pounds (tr. pp. 107 & 108).  
 
            
 
                 Dr. Casta acknowledged that claimant had no 
 
            restrictions     prior to October 19, 1987 and that Dr. 
 
            Sinning had recommended that claimant be allowed to work 
 
            without any restrictions (tr. pp. 110 & 111).  Dr. Casta 
 
            examined claimant's complete medical record and determined 
 
            that claimant did not have any treatment for low back pain 
 
            in the L-5, S-1 area prior to this injury, except for an 
 
            incident in 1973 when he saw a chiropractor for a back 
 
            problem which developed after a sneeze (tr. pp. 113, 128 & 
 
            129).  Dr. Casta granted that Dr. Stimac was going to impose 
 
            a 50 pound weight restriction at the time claimant was 
 
            hired, but eliminated it after claimant was seen by Dr. 
 
            Sinning (tr. p. 130).
 
            
 
                 Gary Mlakar, safety engineer and ten-year employee of 
 
            employer, testified that the company safety investigation 
 
            was completed by himself and Greg Guideback (tr. pp. 
 
            114-116; cl. ex. p. 9).  Mlakar recommended to his superior, 
 
            George Pratt, that, "...based on conversation with Denny, I 
 
            really didn't see this as a work-related injury." (tr. p. 
 
            117).  He felt that claimant, "...was very inconclusive as 
 
            to the origin of the trauma to the back." (tr. p. 118).  
 
            Mlakar added, "...I didn't walk away from there with a 
 
            strong enough feeling that that box actually was the cause 
 
            of the injury." (tr. p. 118).  Mlakar admitted that he did 
 
            not contact Dr. Baker for his opinion about whether claimant 
 
            sustained an injury on August 20, 1987.  He could not recall 
 
            if he conferred with Dr. Casta.  He admitted that he did not 
 
            have a legal or medical background (tr. pp. 121 & 122).
 
            
 
                 Kevin O'Brien testified that he administers the 
 
            workers' compensation program for employer.  He examined the 
 
            payroll records for claimant for the year 1986 & 1987 for 
 
            the one-year period prior to August 20, 1987 and said they 
 
            demonstrate that claimant only worked overtime on one 
 
            occasion and that was on July 5, 1987 (tr. pp. 131-133; jt. 
 
            ex. pp. 34 & 35).  The witness examined the overtime record 
 
            from June 13, 1987 to June 17, 1989.  This was a computer 
 
            report.  From January 1, 1987 to June 13, 1987, these 
 
            records were manually maintained and he also examined these 
 
            records.  O'Brien found that from January 1, 1987 until 
 
            August 20, 1987, claimant had 42 opportunities to work 
 
            overtime and he refused 41 of them.  He only accepted one of 
 
            them (tr. pp. 133 & 134; jt. ex. pp. 31-33).  O'Brien added 
 
            that he also generally refused overtime in 1986 (tr. p. 
 
            135).  There were a few times he accepted it (tr. p. 138).  
 
            O'Brien testified that the approximate base wage for an 
 
            electrician in 1986 would be about $30,000 per year.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 Claimant testified on rebuttal that on Monday, Tuesday 
 
            or Wednesday prior to the injury he did not mention any back 
 
            problems or anything like that to Neubauer and he has no 
 
            recollection of walking funny before Friday morning.  
 
            Claimant testified that Neubauer was incorrect and that he 
 
            questioned his ability to recollect backwards to Monday, 
 
            August 17, 1987 from a point in time three weeks later (tr. 
 
            pp. 138-140).  
 
            
 
                 The investigative notes of Gary Mlakar and Greg 
 
            Guideback show they interviewed claimant on August 31, 1987 
 
            at employer's medical facility and they listed these 
 
            findings:
 
            
 
                 -He lifted-up a box of coaxial cable and put the 
 
                 box into a JLG basket.
 
            
 
                 -He did not carry the box, he picked it up and put 
 
                 it in the basket.
 
            
 
                 -He did not feel any pain at the time he picked-up 
 
                 the box.
 
            
 
                 -He stated that he's not sure if picking-up the 
 
                 box is when he hurt his back, but thinks that's 
 
                 the incident.
 
            
 
                 -He noticed some pain in his back that evening.  
 
                 The next day, Friday August 21, he was working in 
 
                 bldg. 800, sitting in a chair.  He started to get 
 
                 out of the chair, the back pain was severe at that 
 
                 time and he went to the Medical Department around 
 
                 1:00 p.m.
 
            
 
            (cl. ex. p. 9)
 
            
 
                 The investigative report of G.O. Pratt, Jr., dated 
 
            August 28, 1987 shows these entries:
 
            
 
                 I asked Dennis how the accident happened:
 
            
 
                 A:  I was working in 816 North on Thursday.  There 
 
                 were two boxes of wire.  I picked one up with one 
 
                 hand - I think my right since I'm right handed.  
 
                 There is a hole in the box to pick it up.  [I]t 
 
                 weighed about 25 to 30 lbs.
 
            
 
                 I felt a little tender at the time.  No bad pain.  
 
                 It hurt worse that night, so I used a hot pad.
 
            
 
                 I terminated wire Friday, sitting on a hard steel 
 
                 chair bending over.  When I stood up around 1:00 
 
                 p.m., I could hardly get up and move.  My right 
 
                 leg was numb.
 
            
 
            (cl. ex. p. 10)
 
            
 
                 Pratt wrote to claimant on September 18, 1987:
 
            
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                    Information from the accident investigation 
 
                 last week, and information received from you 
 
                 either by phone or from a visit to our medical 
 
                 department, revealed enough disparity as to the 
 
                 exact cause of your injury, that we are not 
 
                 accepting the injury as a work related injury.
 
            
 
            (cl. ex. p. 13; jt. ex. p. 70)
 
            
 
                 The company medical records show that the medical 
 
            department closely monitored claimant's alleged injury, 
 
            treatment and recovery by frequent contacts with claimant, 
 
            Dr. Baker, and the physical therapist.  They also show that 
 
            the medical department provided claimant with cab fares, 
 
            treatment and medications as needed (jt. ex. pp. 8-13).
 
            
 
                 Dr. Baker saw claimant on Monday, August 24, 1987.  Dr. 
 
            Baker's first comments are as follows:
 
            
 
                 This is a 38 year old, 185 pound 5'11" white male 
 
                 who is referred from Alcoa.  He is complaining of 
 
                 low back pain and some right sided pain.  This 
 
                 began when picking up a spool of wire on 08-20-87.  
 
                 He had mild to moderate pain at that time with 
 
                 which he was able to continue working.  The 
 
                 following day though, after sitting for a period 
 
                 of time, he developed pain and could not stand up.
 
            
 
            (jt. ex. p. 3)
 
            
 
                 Claimant admitted to one episode in 1973 of back pain 
 
            which developed after sneezing while he was bent over.  He 
 
            was treated by chiropractic techniques and he improved over 
 
            about two weeks.  He apparently has been doing heavy work 
 
            right along.  His past history is quite unremarkable.  
 
            X-rays revealed a Grade 1 spondylolisthesis with about a 20 
 
            percent slip.  Otherwise, they are essentially unremarkable.  
 
            Dr. Baker diagnosed spondylolisthesis with a spinal 
 
            radicular syndrome (jt. ex. p. 3).  Claimant showed 
 
            improvement on September 1, 1987.  On September 16, 1987, 
 
            his notes reflected that claimant was working with a 
 
            therapist on a work hardening program.  A CT scan was 
 
            ordered (jt. ex. p. 4).  On October 19, 1987, the CT scan 
 
            revealed only the spondylolisthesis.  Claimant had minimal 
 
            complaints and was released to return to work with no heavy 
 
            lifting or constant bending.  
 
            
 
                 A return to work slip was issued by Dr. Baker on 
 
            October 19, 1987 and effective the same date.  The 
 
            restrictions imposed were as follows, "No lifting over 25#.  
 
            No constant bending or stooping." (jt. ex. p. 6).
 
            
 
                 On March 1, 1988, Dr. Baker wrote as follows:
 
            
 
                 In response to your question concerning the 
 
                 causation of Mr. Baber's back problem.  I would 
 
                 feel that this gentleman has had a pre-existing 
 
                 condition.  He indicates that lifting a spool 
 
                 apparently was the direct cause of this particular 
 
                 episode of backache.  This patient has a situation 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
                 which is known to lead to degenerative disc 
 
                 changes and which I feel has probably been very 
 
                 strongly present prior to the time of his current 
 
                 problem.
 
            
 
                 In short, I would simply state that this gentleman 
 
                 had an aggravation of a pre-existing injury when 
 
                 he lifted the spool of wire.
 
            
 
            (jt. ex. p. 1).
 
            Dr. Baker wrote on September 28, 1988:
 
            
 
                 In response to your letter of September 13th,  The 
 
                 AMA guide that you quoted states "Grade I or II 
 
                 spondylolysis and spondylolisthesis with 
 
                 aggravation, persistent muscle spasm, rigidity and 
 
                 pain resulting from trauma" is equal to 20% 
 
                 impairment of the whole person.  I am not sure 
 
                 this entirely applies to Mr. Baber as he, when 
 
                 last seen, did not have rigidity, spasm, pain, 
 
                 etc.
 
            
 
                 I would extrapolate from his clinical condition 
 
                 and the AMA guide about a 10% disability based on 
 
                 this particular situation.
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
            (jt. ex. p. 2)
 
            
 
                           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 August 20, 
 
            1987, which arose out of and in the course of his 
 
            employment.  McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of August 20, 
 
            1987, is causally related to the disability on which 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).
 
            
 
                 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).
 
            
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).
 
            
 
                 Neubauer's testimony cannot be relied upon to establish 
 
            that claimant did not sustain an injury arising out of and 
 
            in the course of his employment with employer.  On one hand, 
 
            Neubauer could recall on September 9, 1987, without the 
 
            benefit of a log or diary, that approximately three weeks 
 
            earlier on Monday, August 17, 1987, claimant wiggled his 
 
            shoulders and said his back was stiff; but at the same time, 
 
            testified that on one of those days prior to the injury, 
 
            either Wednesday or Thursday, that he "lost a day" and could 
 
            not recall what happened on the lost day (tr. pp. 63, 66 & 
 
            75-77).  Therefore, Neubauer's ability to recollect and 
 
            recall is somewhat impugned by his own testimony.  
 
            
 
                 Neubauer did acknowledge that wiggling of the shoulders 
 
            might be more indicative of a cervical spine pain rather 
 
            than a lumbar spine pain.  Neubauer stated that claimant 
 
            made no complaints or indications of pain on Tuesday, August 
 
            18, 1987.  Then, on the day which is not the lost day, on 
 
            either Wednesday, August 19, 1987 or Thursday, August 20, 
 
            1987, claimant walked in an abnormal protective fashion.  
 
            Neubauer admitted that he thought this manner of walking was 
 
            protective of his foot or ankle rather than his back (tr. 
 
            pp. 66 & 81).  
 
            
 
                 Neubauer said claimant did not report an injury to him 
 
            on August 20, 1987.  Neubauer further admitted that he was 
 
            aggravated because he had to work with claimant because he 
 
            did not like claimant's working habits (tr. p. 770).  If 
 
            Neubauer was aggravated because of the fact he had to work 
 
            with claimant, it would not be unusual if claimant chose not 
 
            to confide in Neubauer and communicate to him everything 
 
            that he was thinking and feeling.  Therefore, as between 
 
            claimant's testimony and Neubauer's testimony, claimant's 
 
            testimony is considered to be more reliable as to what 
 
            occurred on August 20, 1987.  
 
            
 
                 The investigation of Mlakar, Guideback and Pratt cannot 
 
            be determined to be dispositive of whether claimant 
 
            sustained an injury arising out of and in the course of his 
 
            employment on August 20, 1987.  First of all, because it is 
 
            based entirely upon circumstantial evidence; second, because 
 
            it appears to give no weight at all to claimant's testimony; 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            and third, because the investigators did not consult with 
 
            Dr. Baker, the treating orthopedic surgeon, Dr. Casta, the 
 
            company's medical director, or any other medical authority; 
 
            and fourth, because the investigators did not take any 
 
            written or dictated statements from the witnesses, but only 
 
            wrote down their interpretations or conclusions of what the 
 
            witnesses told them.  
 
            
 
                 Employer in this case is a self-insured defendant.  
 
            Code of Iowa, section 507B, entitled "Insurance Trade 
 
            Practices" section 507B.4, entitled, "Unfair Methods of 
 
            Competition and Unfair or Deceptive Acts or Practices 
 
            Defined," at paragraph nine, entitled "Unfair Claim 
 
            Settlement Practices," indicates that refusing to pay claims 
 
            without conducting a reasonable investigation based upon all 
 
            available information is an unfair claim settlement practice 
 
            if it is performed with such flagrancy as to indicate it is 
 
            a general business practice.  
 
            
 
                 In this case, there is no indication of an unfair claim 
 
            practice, but it is obvious that the defendant's claim 
 
            investigation was deficient by not including the information 
 
            available from the treating orthopedic surgeon, Dr. Baker.  
 
            Nor does it appear that defendant checked with Dr. Casta or 
 
            any other medical authority.  Written statements or dictated 
 
            statements were not taken from the witnesses.  Consequently, 
 
            employer's claim investigation cannot be dispositive of 
 
            whether claimant sustained an injury on August 20, 1987 
 
            which arose out of and in the course of employment with 
 
            employer.
 
            
 
                 During the employer's investigation, claimant said that 
 
            he felt tender at the time he lifted the coax, but did not 
 
            have bad pain.  It hurt worse that night, so he used a hot 
 
            pad (cl. ex. p. 10).  The medical department notes dated 
 
            August 21, 1987, show that claimant picked up a box of 
 
            electrical wire in the afternoon.  It felt like he couldn't 
 
            straighten up, he bent his knees and was unable to 
 
            straighten up.  It was tender, but seemed fine (jt. ex. p. 
 
            8).  At the hearing, claimant testified, "I was picking up a 
 
            box of wire, and I had an ache in my back." (tr. p. 25).  
 
            From these consistent accounts, it is determined that 
 
            something happened when claimant picked up the coax on the 
 
            afternoon of August 20, 1987 and that claimant has attempted 
 
            to relate what happened candidly without exaggeration.  In 
 
            other testimony, claimant stated that he had seriously 
 
            reviewed all of his activities on Thursday, August 20, 1987 
 
            and Friday, August 21, 1987 and this was his best 
 
            recollection of what caused his back pain on the night of 
 
            August 20, 1987 when he began using a heating pad and 
 
            eventually reported the injury to the employer's medical 
 
            department in the early afternoon of Friday, August 21, 
 
            1987.  Furthermore, Neubauer testified that their climbing 
 
            activities on August 20, 1987 were very strenuous.  He said 
 
            they that looked like a couple of human flies.
 
            
 
                 Dr. Baker's first office visit on Monday, August 24, 
 
            1987, which was only four days after the injury, shows that, 
 
            "This began when picking up a spool of wire on 08/20/87.  He 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            had mild to moderate pain at that time with which he was 
 
            able to continue working.  The following day though, after 
 
            sitting for a period of time, he developed pain and could 
 
            not stand up." (jt. ex. p. 3).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  Bradshaw, 251 Iowa 375, 101 
 
            N.W.2d 167 (1960).  Dr. Baker, the treating orthopedic 
 
            surgeon, and the only physician to treat claimant in this 
 
            case, stated clearly and unequivocally, "In short, I would 
 
            simply state that this gentleman had an aggravation of a 
 
            pre-existing injury when he lifted the spool of wire." (jt. 
 
            ex. p. 1).  This is the only professional medical opinion on 
 
            causation.  This statement by Dr. Baker is not controverted, 
 
            rebutted, contradicted or refuted by any other evidence.  It 
 
            is the testimony of the only medical expert in this case.  
 
            Dr. Baker is a physician that was chosen by defendant 
 
            employer.  Both parties were apparently satisfied with Dr. 
 
            Baker's testimony on this point because neither party took a 
 
            deposition from Dr. Baker.  Dr. Casta, the medical director, 
 
            testified at the hearing and Dr. Casta was not asked to 
 
            controvert, rebut, contradict or refute Dr. Baker's 
 
            testimony.  No opposing medical opinion was introduced by 
 
            any other physicians.
 
            
 
                 Therefore, from the foregoing evidence it is determined 
 
            that claimant did sustain an injury on August 20, 1987 which 
 
            arose out of and in the course of employment with employer 
 
            and that the injury was the cause of both temporary and 
 
            permanent disability.
 
            
 
                 The parties stipulated that claimant is entitled to 
 
            temporary disability benefits from August 21, 1987 through 
 
            October 19, 1987, a period of eight point four two nine 
 
            weeks.
 
            
 
                 Dr. Baker stated, "I would extrapolate from his 
 
            clinical condition and the AMA guide about a 10% disability 
 
            based on this particular situation." (jt. ex. p. 2).  By way 
 
            of defense, defendant asserts that claimant had a first 
 
            degree, or Grade I, spondylolisthesis of the L-5, S-1 at the 
 
            time of his preemployment physical examination and when he 
 
            started to work for employer.  However, no impairment rating 
 
            was ever given for the spondylolisthesis that existed at the 
 
            time that claimant began his employment by either Dr. 
 
            Sinning or Dr. Stimac.  Nor was Dr. Sinning asked to 
 
            reevaluate the spondylolisthesis prior to this hearing to 
 
            testify what impairment, if any, existed at the time 
 
            claimant started to work for employer.  On November 26, 
 
            1980, Dr. Sinning described it as a "minimal 
 
            spondylolisthesis L-5, S-1."  Furthermore, Dr. Sinning did 
 
            not believe that it warranted any restrictions of any kind 
 
            at the time claimant began his employment (jt. ex. p. 54).
 
            
 
                 Dr. Baker said that his 10 percent impairment rating 
 
            was based upon, "this particular situation." (jt. ex. 2).  
 
            If defendant wanted this rating reduced, the burden was on 
 
            them to do so.  An injured party is not charged with the 
 
            burden of proving the actual apportionment of damages.  This 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            burden is on defendant since defendant is the party standing 
 
            to gain by litigating the apportionment or reduction in 
 
            impairment rating.  If the evidence is not sufficient to 
 
            apportion the disability, then defendant is responsible for 
 
            all of the disability that exists.  In this case, defendant 
 
            did not prove that the impairment rating of 10 percent by 
 
            Dr. Baker should be reduced by any evidence of any kind.  
 
            Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 Iowa 
 
            1984; Becker v. D & E Distributing Co., 247 N.W.2d 727, 731 
 
            (Iowa 1976); 2 Damages and Tort Actions, section 
 
            15-34[1](a); 22 Am. Jur. 2nd, section 212.  Again, Dr. Baker 
 
            made it quite clear that his impairment rating was based on, 
 
            "this particular situation." and Dr. Baker was fully aware 
 
            of claimant's earlier spondylolisthesis (jt. ex. pp. 1 & 2).  
 
            Neither party deposed Dr. Baker for further clarifying 
 
            information.  Dr. Casta, who testified, did not dispute this 
 
            impairment rating for, "this particular situation."  
 
            Therefore, it cannot be said, as defendant contends, that 
 
            this was only a temporary aggravation of a preexisting 
 
            condition.
 
            
 
                 The fact that Dr. Baker used the term disability rather 
 
            than impairment, is not unusual.  Both doctors and attorneys 
 
            inadvertently use the terms interchangeably, as well as 
 
            others, in the workers' compensation area.  The Supreme 
 
            Court of Iowa did the same thing in Olson, 225 Iowa 1112, 
 
            1121, 125 N.W.2d 251 (1963).  The court used the term 
 
            disability although it was obvious that the court was 
 
            discussing impairment ratings.  Beyer v. Iowa Beef 
 
            Processors, Inc., file no. 759698, filed December 3, 1987.
 
            
 
                 Defendant's counsel in his opening statement (tr. p. 
 
            14) and in his posthearing brief also interpreted that, "In 
 
            essence, Dr. Baker is giving Claimant a 10 percent 
 
            impairment of the whole person by virtue of the fact that 
 
            Claimant has a Grade I or II spondylolysis and 
 
            spondylolisthesis, exactly what he had in 1980 when Claimant 
 
            was examined by Dr. John Sinning."  (def. posthearing brief 
 
            page 4).  As previously discussed, however, no impairment 
 
            rating was ever determined for claimant's preexisting 
 
            spondylolisthesis in 1980 or at any other time until Dr. 
 
            Baker awarded a 10 percent impairment, "based on this 
 
            particular situation."  (jt. ex. p. 2).  Therefore, it is 
 
            determined that claimant has sustained a 10 percent 
 
            permanent impairment to the body as a whole caused by the 
 
            injury of August 20, 1987.
 
            
 
                 In addition to the impairment rating, Dr. Baker imposed 
 
            a 25 pound lifting restriction and prohibited constant 
 
            bending or stooping (jt. ex. p. 6).  To these restrictions 
 
            Dr. Casta has added no work in a semi-stooped position for 
 
            long periods and claimant is to avoid prolonged standing, 
 
            over 1 hour (jt. ex. p. 60).
 
            
 
                 Claimant's employability in the competitive labor 
 
            market is diminished by the fact that he has sustained a 
 
            work-related back injury, litigated a workers' compensation 
 
            claim, now suffers a 10 percent impairment to the body as a 
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            whole, and is restricted from lifting more than 25 pounds.  
 
            
 
                 At age 41, claimant's disability is more severe because 
 
            he is at or nearing the peak of his earnings career.  Becke 
 
            v. Turner-Busch, Inc., Thirty-fourth Biennial Report of the 
 
            Industrial Commissioner 34 (Appeal Decision  1979); Walton 
 
            v. B & H Tank Corp., II Iowa Industrial Commissioner Report 
 
            426 (1981); McCoy v. Donaldson Company, Inc., file numbers 
 
            782670 & 805200 (Appeal Decision April 28, 1989).
 
            
 
                 There was no direct evidence on claimant's education, 
 
            but his counsel indicated that he had obtained a high school 
 
            education.  Claimant testified that he had attended 
 
            electronics school and had been employed for several years 
 
            as a journeyman construction electrician.  It is also clear 
 
            that claimant has returned to the same job, for the same 
 
            employer, and has not sustained any actual earnings loss.  
 
            Nevertheless, claimant has demonstrated a significant loss 
 
            of earning capacity.  Holmquist v. Volkswagen of America, 
 
            Inc., 261 N.W.2d 516 (Iowa Appeals 1977); 100 A.L.R. 3d 143; 
 
            2 Larson, Workmens' Compensation Law, sections 57.21 & 
 
            57.31.  Postinjury earnings create a presumption of earning 
 
            capacity, but they are not synonymous with earning capacity.  
 
            2 Larson, id.  Claimant's 10 percent impairment rating, 25 
 
            pound lifting restriction and other restrictions imposed by 
 
            both Dr. Baker and Dr. Casta diminishes earning capacity.
 
            
 
                 Claimant totally failed to demonstrate any loss of 
 
            actual earnings or earnings capacity from a loss of overtime 
 
            pay.  Claimant chose not to work overtime both before and 
 
            after this injury.  No physician ever told him not to work 
 
            overtime.  Claimant's earnings after the injury were not 
 
            demonstrated to be less than before the injury from his W-2 
 
            forms.  It was established claimant did not work overtime 
 
            through his own choice.  Furthermore, he lost time from work 
 
            by not working full weeks on some occasions and because of a 
 
            disciplinary action.
 
            
 
                 It is also quite clear that employer has been extremely 
 
            considerate of claimant, even though claimant was not always 
 
            a cooperative employee.  Even though employer closely 
 
            monitored his injury and recovery, they, nevertheless, 
 
            provided excellent medical care which resulted in claimant's 
 
            early rehabilitation to work which included taxi fares, 
 
            physical therapy, medications and a very competent 
 
            orthopedic surgeon.  Defendant has also been extremely 
 
            considerate by returning claimant to work within his 
 
            restrictions without a loss of income.  At the same time, 
 
            however, employer's toleration for claimant's disabilities 
 
            will not necessarily transfer or translate to the 
 
            competitive labor market as a whole.  Hartwig v. Bishop 
 
            Implement Co., IV Iowa Industrial Commissioner Report 159 
 
            (Appeal Decision June 28, 1984).  It is not likely that 
 
            other employers in the competitive labor market would be so 
 
            gracious with a 41 year old employee with a Grade I 
 
            spondylolisthesis, who has sustained a 10 percent impairment 
 
            to the body as a whole and cannot lift more than 25 pounds.  
 
            Todd v. Department of General Services, Buildings and 
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
            Grounds, IV Industrial Commissioner Report 373 (1983). 
 
            
 
                 Since claimant returned to work at the same job at the 
 
            same pay, vocational rehabilitation is not a factor in this 
 
            case.  
 
            
 
                 Wherefore:  (1) based on the foregoing considerations;    
 
            (2) all of the evidence in the record; (3) all of the 
 
            factors used to determine industrial disability, Olson, 255 
 
            Iowa 1112, 1121 125 N.W.2d 251, 257 (1963); Peterson v. 
 
            Truck Haven Cafe, Inc., vol. 1, no. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654, 658 (Appeal Decision 
 
            February 28, 1985);        (4) employing agency expertise 
 
            [Iowa Administrative Procedure Act 17A.14(5)], it is 
 
            determined that claimant has sustained an industrial 
 
            disability of 10 percent to the body as a whole.
 
            
 
                                 findings of fact
 
            
 
                 Wherefore, based upon the evidence presented, the 
 
            following findings of fact are made:
 
            
 
                 That claimant was employed by employer from 1980 and 
 
            was still employed at the time of the hearing on October 26, 
 
            1989.
 
            
 
                 That claimant injured his back on August 20, 1987, when 
 
            he picked up a 25 to 30 pound box of coax cable and placed 
 
            it in an aerial basket and experienced what he variously 
 
            described as tenderness or an ache, but not bad pain at that 
 
            time.
 
            
 
                 That claimant's back became progressively worse that 
 
            evening and the following day until he reported to 
 
            defendant's medical facility with extreme pain, without 
 
            checking with his supervisor, at approximately 1 p.m. on 
 
            August 21, 1987.
 
            
 
                 That employer provided excellent medical care for 
 
            claimant by cab fares, medications, physical therapy, work 
 
            hardening, and authorizing claimant to see an orthopedic 
 
            surgeon which resulted in a fairly early return to work for 
 
            claimant.
 
            
 
                 That Dr. Baker determined that claimant's work of 
 
            lifting the coax cable on August 20, 1987 was the cause of 
 
            the injury.
 
            
 
                 That Dr. Baker determined that claimant sustained a 10 
 
            percent impairment to the body as a whole based on this 
 
            particular situation.
 
            
 
                 That Dr. Baker restricted claimant from lifting more 
 
            than 25 pounds and constant bending and stooping.
 
            
 
                 That Dr. Casta further restricted claimant from working 
 
            in semi-stooped positions and ordered that claimant was to 
 
            avoid prolonged standing, over one hour.
 
            
 
                 That claimant was 39 years old at the time of the 
 

 
            
 
            Page  18
 
            
 
            
 
            
 
            
 
            injury and 41 years old at the time of the hearing.
 
            
 
                 That claimant probably has a high school education 
 
            according to the statement of his counsel.
 
            
 
                 That claimant is a journeyman electrician.
 
            
 
                 That claimant has returned to the same job, for the 
 
            same pay, and that employer has made the necessary 
 
            accommodations so that claimant can continue to work at his 
 
            same job at the same pay.
 
            
 
                 That claimant has sustained a 10 percent industrial 
 
            disability to the body as a whole.
 
            
 
                                conclusions of law
 
            
 
                 Wherefore, based on the evidence presented and the 
 
            foregoing principles of law, the following conclusions of 
 
            law are made:
 
            
 
                 That claimant sustained an injury on August 20, 1987, 
 
            which arose out of and in the course of employment with 
 
            employer.
 
            
 
                 That the injury was the cause of temporary disability.
 
            
 
                 That claimant is entitled to temporary disability 
 
            benefits from August 21, 1987 through October 19, 1987 as 
 
            stipulated to by the parties.
 
            
 
                 That the injury was the cause of permanent disability.
 
            
 
                 That claimant has sustained a 10 percent permanent 
 
            disability to the body as whole.
 
            
 
                 That claimant is entitled to 50 weeks of permanent 
 
            partial disability benefits.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendant pay to claimant eight point five seven 
 
            one (8.571) weeks of healing period benefits for the period 
 
            from September 21, 1987 through October 19, 1987 at the rate 
 
            of three hundred sixty-six and 90/100 dollars ($366.90) per 
 
            week in the total amount of three thousand one hundred 
 
            forty-four and 70/100 dollars ($3,144.70)
 
            
 
                 . That defendant pay to claimant fifty (50) weeks of 
 
            permanent partial disability benefits at the rate of three 
 
            hundred sixty-six and 90/100 dollars ($366.90) per week in 
 
            the total amount of eighteen thousand three hundred 
 
            forty-five dollars ($18,345) for a 10 percent industrial 
 
            disability to the body as a whole commencing on October 20, 
 
            1987 as stipulated to by the parties.
 
            
 
                 That defendant is entitled to a credit for one thousand 
 
            nine hundred seventy and 55/100 dollars ($1,970.55) for 
 

 
            
 
            Page  19
 
            
 
            
 
            
 
            
 
            income disability benefits paid to claimant under the 
 
            employee group health plan prior to hearing.
 
            
 
                 That all accrued benefits are to be paid in a lump sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30. 
 
            
 
                 That the costs of this action, including the cost of 
 
            the transcript, are charged to defendants pursuant to 
 
            Division of Industrial Services Rule 343-4.33.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to Division of Industrial 
 
            Services Rule 343-3.1.
 
            
 
                 Signed and filed this ____ day of March, 1990.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Michael Liebbe
 
            Attorney at Law
 
            116 E. 6th St
 
            PO Box 339
 
            Davenport, IA  52805-0339
 
            
 
            Mr. Thomas N. Kamp
 
            Attorney at Law
 
            600 Davenport Bank Bldg
 
            Davenport, IA  52801
 
            
 
            
 
 
         
 
         Page   1
 
         
 
                   51106; 51118.50; 51402.20;                   
 
         51402.30; 51402.40; 51402.60; 1802;          1803
 
                   Filed March 21, 1990
 
                   Walter R. McManus, Jr.
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         DENNIS BABER,                 :
 
                                       :
 
              Claimant,                :      File No.  863900
 
                                       :
 
         vs.                           :
 
                                       :  A R B I T R A T I O N
 
         ALUMINUM COMPANY OF AMERICA,  :
 
                                       :      D E C I S I O N
 
              Employer,                :    
 
              Self-Insured,            :      
 
              Defendant.               :
 
         ___________________________________________________________
 
         
 
         581106; 51118.50; 51401; 51402.20; 51402.30; 51402.40; 51402.60
 
         Claimant sustained the burden of proof by a preponderance of the 
 
         evidence that he sustained an injury that arose out of and in the 
 
         course of employment with employer.  Primarily, the only treating 
 
         physician testified that a prior condition of spondylolisthesis 
 
         was aggravated by this incident of picking up a box of wire at 
 
         work.  It was not an instant traumatic accident and claimant 
 
         wasn't too sure, initially, how he got the back pain, but this 
 
         incident was his best opinion.  The doctor supported claimant.  
 
         Employer's investigation was deficient because it did not consult 
 
         the doctor, ignored claimant's version, the investigators did not 
 
         take written or recorded statements, but merely wrote down their 
 
         interpretation of what a number of persons told them.  
 
         Investigators did not check with the company doctor either.  The 
 
         key witness the employer relied upon was not too reliable and was 
 
         "aggravated" because he did not like working with claimant.  
 
         Claimant's version was supported by the orthopedic surgeon.  This 
 
         was considered the best evidence of injury.
 
         
 
         
 
         1802
 
         Claimant awarded healing period benefits for a stipulated period 
 
         claimant was off work for treatment.
 
         
 
         1803
 
         Doctor awarded 10 percent permanent impairment for this 
 
         situation.  Claimant restricted from lifting 25 pounds, working 
 
         in bent over positions, and prolonged standing for over one hour 
 
         at a time.  Claimant returned to same job, at the same pay, with 
 
         accommodations made by employer.  Claimant awarded 10 percent 
 
         industrial disability.
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SANDRA K. SMITH,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 864638
 
            CLEAR LAKE BAKERY,            :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            TRANSAMERICA INSURANCE,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This case came on for hearing on September 5, 1991, in 
 
            Mason City, Iowa.  Claimant seeks permanent partial 
 
            disability benefits as a result of an alleged injury 
 
            occurring on October 2, 1987.  The record in the proceedings 
 
            consist of the testimony of the claimant and Bertha Miller; 
 
            joint exhibits J-1 through 9; and defendants' exhibits A 
 
            through AA.
 
            
 
                                      issues
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  The nature and extent of claimant's permanent 
 
            disability and entitlement to disability benefits;
 
            
 
                 2.  Whether claimant is entitled to 85.27 medical 
 
            benefits in reference to joint exhibit 9, and whether said 
 
            treatment was authorized, necessary and causally connected 
 
            to claimant's injury of October 2, 1987; and
 
            
 
                 3.  Whether claimant is entitled to 86.13(4) penalty 
 
            benefits.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant testified at the hearing and through a 
 
            deposition taken January 14, 1991 (Defendants' Exhibit D).  
 
            Claimant is a 38 year old who did not graduate from high 
 
            school but did obtain a GED in 1973.  Claimant described her 
 
            work history before beginning work with defendant employer 
 
            in 1984.  This history shows claimant basically performed 
 
            restaurant work doing waitress work, being a cashier and in 
 
            some instances worked in a supervisory position.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 Claimant started as a janitor for defendant employer in 
 
            1984 at $5.35 per hour.  This required scrubbing floors, 
 
            lifting 100 pounds of doughnut flour mix off the floor, 
 
            climbing rafters to dust and wash the doors, and moving 200 
 
            pound barrels of flour in order to clean behind them.  On 
 
            October 2, 1987, claimant was making $7.85 per hour.  She 
 
            was expecting an increase after Christmas up to 
 
            approximately $8.35 per hour.
 
            
 
                 Claimant testified she never was involved in an 
 
            accident nor had any back trouble prior to October 2, 1987.
 
            
 
                 On October 2, 1987, claimant was lifting a pan of 
 
            frosting that was on the floor.  Upon lifting the tray one-
 
            half way up, claimant heard a crack and felt a sharp knife-
 
            like pain in her lower lumbar area of her back.
 
            
 
                 Claimant described her medical treatment and the pain 
 
            and problems she was having after the October 2, 1987 
 
            injury.
 
            
 
                 Claimant said she could not water ski, ride a bicycle, 
 
            jog, golf or bowl since the injury, for the most part.  
 
            Claimant contends she has tried.  Her parents owned a 
 
            bowling alley and the mother is apparently operating it due 
 
            to claimant's father's death October 17, 1987.  Claimant 
 
            said she has lived off inheritance from her father's estate 
 
            since her injury.  Claimant related the many places she 
 
            looked for work.  She indicated she disclosed her back 
 
            injury.  On October 20, 1989, claimant took a job with 
 
            Cashway Foods as she was running out of money.  Claimant 
 
            quit this job in January or February 1990, as she contends 
 
            she could no longer endure it.  She said it was a part-time 
 
            job twenty hours per week.  Claimant described another job 
 
            where she tried driving a van but quit after one day due to 
 
            the aggravation of her injury of October 2, 1987.  Recently, 
 
            claimant worked for Wells Fargo Security on a very limited 
 
            basis.
 
            
 
                 Claimant related she did go back to work with defendant 
 
            employer in September 1988, and worked two hours.  Claimant 
 
            indicated that after two hours, she was unable to do the 
 
            work which involved lifting trays, bending, etc.  Claimant 
 
            said she could not endure the work and went home.  Claimant 
 
            said nothing else was ever offered to her by defendant 
 
            employer.
 
            
 
                 In 1990, claimant said someone referred her to William 
 
            R. Boulden, M.D., as she was not getting any help or relief 
 
            from the other doctors.  Dr. Boulden sent her through a 
 
            different exercise and treatment program.
 
            
 
                 Claimant acknowledged there was strife, worry and 
 
            stress as administrator of her father's estate and her 
 
            involvement in selling some assets in her father's estate.  
 
            She said being an administrator is a difficult task.  
 
            Claimant said she sold her father's boat as an estate asset 
 
            in May 1988, and did not help move it, but two men actually 
 
            did the moving.  Claimant insisted she couldn't do any 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            lifting or bending at that time.
 
            
 
                 Claimant acknowledged K. B. Washburn, M.D., released 
 
            her on June 8, 1988, to 40 pounds lifting and 30 pounds 
 
            pulling (Joint Exhibit 2-D).  Claimant said she was not able 
 
            to lift those limits.  It appears claimant wanted to go back 
 
            to work and these limits were attempted to see if claimant 
 
            could work again at the bakery.  Claimant returned to the 
 
            bakery and worked two hours and left.
 
            
 
                 Claimant was asked about the vocational rehabilitation 
 
            counselor's report in which the claimant indicated to him 
 
            that she was fearful of reinjury in doing exercises.  
 
            Claimant contends she didn't say she was afraid of a 
 
            reinjury.  She emphasized she wanted to do the exercises 
 
            (Jt. Ex. J-4(H).  Claimant's earnings in 1986 and 1987 were 
 
            approximately $12,000 each year and in 1988, 1989 and 1990, 
 
            claimant's income was between $247 and approximately $787 
 
            per year except in 1990, claimant received an additional 
 
            $1,850 as the administrator fee of her father's estate.
 
            
 
                 Claimant was asked about the Iowa Spine Clinic report 
 
            on January 30, 1989 (Jt. Ex. J-4(I) in which the doctor 
 
            commented that claimant's back is "solid, stable and healed 
 
            and certainly does not present of a surgical problem at this 
 
            time."  Claimant disagreed with this conclusion.  In the 
 
            same exhibit, claimant was given a 3 percent impairment and 
 
            the doctor said claimant's healing period ended on March 27, 
 
            1989.  It was recommended in this January 30, 1989 letter 
 
            that claimant go to a low back rehabilitation program at the 
 
            University of Iowa.
 
            
 
                 Claimant was referred to joint exhibit J-4(L), a report 
 
            dated March 28, 1989, which sets out her restrictions which 
 
            basically were a 45 pound one time lifting limit or not to 
 
            be done more than four times per hour and a 22 to 24 pound 
 
            repetitive lifting limit.  The doctor implied that those 
 
            restrictions were current and could be improved with 
 
            continued activity and exercise and the doctor set out 
 
            specific recommendations for her to follow.
 
            
 
                 Claimant broke her right foot on May 15, 1989, while 
 
            cleaning out her father's mobile home that was left as an 
 
            asset in the estate.  This does not appear to have had any 
 
            effect on claimant's condition that is at issue in this 
 
            decision and the undersigned so finds.
 
            
 
                 Claimant disagrees with joint exhibit J-4(P), a June 
 
            29, 1989, letter where Ernest M. Found, Jr., M.D., and the 
 
            rehabilitation director, Ted Wernimont, M.S.W., indicated 
 
            how well claimant was getting along and is playing golf a 
 
            great deal of the time even though she broke her foot 
 
            several months ago.  Claimant again disagrees with this 
 
            report and said it isn't true.  She indicated she wasn't 
 
            playing golf, or at least that much.  The undersigned noted 
 
            claimant seems to consistently disagree with the medical 
 
            reports.  It appears to the undersigned the University of 
 
            Iowa is in a very non-biased position and has no reason to 
 
            mistake the facts or mistake the medical opinions they make.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 Claimant began working at Cashway Foods stocking 
 
            shelves on October 29, 1989, at $4.00 per hour (Def. Ex. 19, 
 
            Interrogatory No. 19).
 
            
 
                 Claimant saw Martin S. Rosenfeld, D.O., on November 7, 
 
            1989 (Jt. Ex. J-5).  Defendants' questioning infers that 
 
            claimant received another injury other than the October 2, 
 
            1987, which caused her to see the doctor.  The doctor opined 
 
            that claimant's chronic lumbar facet syndrome was caused by 
 
            claimant's October 1987 injury.  The doctor further opined 
 
            that claimant had a 5 percent impairment to her body as a 
 
            whole using the Orthopedic Academy Guidelines for a 
 
            permanent physical impairment rating.
 
            
 
                 Claimant acknowledged she went to a chiropractor in 
 
            February 1990 (Jt. Ex. J-7).  Claimant contends she didn't 
 
            go back to the Iowa City hospital because she didn't agree 
 
            with that doctor's analysis.
 
            
 
                 Claimant went to see Dr. Boulden on April 5, 1990.  He 
 
            recommended a good conservative program and put her into a 
 
            work hardening program (Jt. Ex. J-6(A).  The doctor's 
 
            impression was mechanical back pain secondary to 
 
            degenerative disk disease.  On July 17, 1990, Dr. Boulden 
 
            opined claimant sustained a 7 percent disability of her back 
 
            based upon the The AMA Guides (2d ed.).  The undersigned 
 
            believes the doctor means impairment instead of disability.  
 
            The doctor further indicated that he felt claimant can still 
 
            return back to gainful employment, maybe not the exact job 
 
            that she was doing before.  He also indicated claimant's 
 
            specific limitations were "no activities that include 
 
            repetitive bending, twisting and lifting with the back, no 
 
            prolonged sitting for more than 45 minutes to an hour, 
 
            without being able to change her position."
 
            
 
                 Claimant said her answers to Interrogatory No. 21 (Def. 
 
            Ex. C) show the places she looked for work as of January 
 
            1990.  Defendants' Exhibit D, page 16, indicates claimant 
 
            was not looking for work in January 1991.  Claimant contends 
 
            she was always willing to go back to work.
 
            
 
                 Claimant was dropped from a JTPA program but does not 
 
            know when or why.  She did relate she had to go to 
 
            California in connection with her father's estate.  Claimant 
 
            left the state on May 3 to May 24, 1989, to visit her sister 
 
            (Jt. Ex. G-12).  The undersigned cannot tell if this was the 
 
            same trip involving her father's estate.  Claimant broke her 
 
            foot on April 15, 1989, while cleaning out a mobile home 
 
            left in her father's estate.  It appears she was still 
 
            healing from this as of May 18 to May 25, 1989.  Claimant 
 
            also was planning on going to college in the fall (Jt. Ex. 
 
            G-12).  Claimant testified in her deposition, on page 48 
 
            (Def. Ex. D), that she was smart enough to go to college but 
 
            at the hearing she said she was not smart enough.
 
            
 
                 Bertha Miller, claimant's mother, testified she 
 
            operates a bowling alley.  She said claimant bowled and 
 
            golfed once every two weeks and golfed often during the 
 
            summer.  Her bowling alley is closed during the summer 
 
            months.  She said that since the October 1987 injury, 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            claimant has not been able to bowl or play golf. She said 
 
            claimant takes care of her son, claimant's brother who is 
 
            mentally retarded, on the weekends. Ms. Miller's testimony 
 
            did not add much to these proceedings or it is cumulative 
 
            and will not be set out in any more detail herein.
 
            
 
                 It appears surgical intervention was not called for 
 
            (Jt. Ex. J-4(I).  Dr. Washburn, on September 30, 1988, wrote 
 
            a report apparently addressing the question among other 
 
            things as to whether claimant suffered a new back injury in 
 
            1988 when she went back to her job with defendant employer 
 
            and contends she was made to do things in excess of her 
 
            prescribed limitations.  The doctor indicated no new injury 
 
            and it appears he felt at most there was an aggravation of 
 
            the October 1987 injury (Jt. Ex. J-2(F).  The undersigned 
 
            finds claimant did not incur any new injury.
 
            
 
                 Claimant appears to be somewhat self-limiting in her 
 
            approach to this injury and treatment.  She has some ideas 
 
            that do not make her an easy rehabilitation case.  This is 
 
            reported by the clinic psychologist at the University of 
 
            Iowa on January 19, 1989 (Jt. Ex. J-4(D).  Claimant seems to 
 
            exhibit a fear of reinjury.
 
            
 
                 Dr. Found, assistant professor at the University of 
 
            Iowa Department of Orthopedic Surgery, and Ted Wernimont, 
 
            rehabilitation director, assessed claimant on January 30, 
 
            1989.  In addition to indicating claimant's back was solid, 
 
            stable and healed, as previously mentioned, they also 
 
            addressed claimant's fears (Jt. Ex. J-4(I).  Joint exhibit 
 
            J-4(L), dated March 20, 1989, signed by Dr. Found and Mr. 
 
            Wernimont, set out claimant's current lifting limit at 45 
 
            pounds one time lifting or not to be done more than four 
 
            times per hour.  They also indicate that claimant's 
 
            repetitive lifting limit would be approximately 22 to 24 
 
            pounds.  In the same letter, they opined a 3 percent 
 
            permanent partial impairment to claimant's body as a whole 
 
            and indicated her healing period ended on March 27, 1989.  
 
            It appears claimant's restrictions provided by the 
 
            University of Iowa as of October 3, 1989, were still similar 
 
            to the restrictions of March 1989 (Jt. Ex. J-4(S).  Mr. 
 
            Wernimont indicated in said letter that claimant continues 
 
            to do very well and is in school full time working toward a 
 
            degree in the area of medical technician.  He also 
 
            emphasized that she needed to seriously consider getting 
 
            back to her regular cardiovascular training conditioning.
 
            
 
                 On November 7, 1989, Dr. Rosenfeld opined claimant had 
 
            a 5 percent permanent impairment to her body as a whole (Jt. 
 
            Ex. J-5).  He opined claimant had a chronic lumbar facet 
 
            syndrome secondary to the October 1987 injury.
 
            
 
                 Defendants' exhibit I indicates that defendant employer 
 
            on February 11, 1988, had no production duties that would 
 
            not involve some form of lifting, bending or twisting.  The 
 
            president of the company at that time indicated that all of 
 
            the jobs are filled and that they are not financially able 
 
            to create a special job for claimant.  He also emphasized in 
 
            this letter that defendants felt that they would be risking 
 
            further injury to the claimant if she would become employed 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            while in her condition.
 
            
 
                 The parties agree that claimant incurred an injury that 
 
            arose out of and in the course of her employment and that 
 
            there is causal connection to some temporary and permanent 
 
            disability.  Claimant contends that her healing period is 
 
            October 3, 1987 to July 17, 1990, while defendants contend 
 
            that it began October 3, 1987 through March 27, 1989, which 
 
            is the date referred to in Dr. Found's letter (Jt. Ex. J-
 
            4(L).  The undersigned finds that the greater weight of 
 
            medical testimony would indicate that claimant reached 
 
            maximum healing for the purposes of the law on March 27, 
 
            1989, as opined by Dr. Found.  Although it is true that 
 
            claimant had further rehabilitation or work hardening after 
 
            having seen Dr. Boulden in 1990, it appears that claimant 
 
            was out of condition and these reconditioning programs 
 
            helped her to condition her body in general.  It also 
 
            appears that she let this go for awhile and it was suggested 
 
            that she keep her body in condition.  The undersigned 
 
            believes the University of Iowa doctor, who is a specialist 
 
            and expert in his field, is in the better position to 
 
            determine claimant's impairment and healing period under the 
 
            circumstances found herein.
 
            
 
                 Although there are comments throughout the record as to 
 
            claimant's motivation that seems favorable to her, it also 
 
            appears that claimant's attention was devoted to the 
 
            handling and settling of her father's estate and this took 
 
            considerable time and placed considerable worry and stress 
 
            upon her.  The greater weight of evidence indicates that 
 
            claimant is not able to return to the type of work and the 
 
            nature of the work she was doing at the time of her October 
 
            2, 1987 injury.
 
            
 
                 Claimant would be making approximately $8 per hour if 
 
            she was still working for defendant employer, and it appears 
 
            any job she now has been able to obtain would be in the $4 
 
            range.  There is a question as to the extent of claimant 
 
            trying to get better work, particularly with her father's 
 
            estate keeping her busy.  The fact is she must get different 
 
            employment than she had at the time of her October 1987 
 
            injury, and there is no reason she would not have been able 
 
            to continue doing the work and the lifting she was doing in 
 
            October 1987 had it not been for that injury.
 
            
 
                 There is no evidence that the restrictions (Jt. Ex. J-
 
            4(L) have been lifted.  It appears claimant has a permanent 
 
            impairment to her body as a whole ranging from 3 percent to 
 
            7 percent depending on the particular doctor involved. 
 
            
 
                 There is no indication that defendant employer is 
 
            willing to take claimant back.  The only evidence concerning 
 
            defendant employer in relation to claimant's job is 
 
            defendants' exhibit I, dated February 11, 1988, at which 
 
            time the employer made it clear that there are no jobs for 
 
            claimant.  They are also fearful that she may risk further 
 
            injury.  Of course, this would be the same fear a new 
 
            employer would have in hiring claimant.  Defendant employer 
 
            knows claimant well and if they are unwilling to hire 
 
            claimant, than how greater a fear on another employer that 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            does not know claimant's background as well.  Which one of 
 
            her potential employers would be willing to take the risk 
 
            that defendant employer does not want to take.  It appears 
 
            claimant was encouraged to continue on with schooling.  It 
 
            appears that this has been interrupted.  Claimant is 38 
 
            years of age and did not graduate from high school but did 
 
            obtain a GED.
 
            
 
                 Taking into consideration claimant's age, pre and post-
 
            work history, medical history, permanent impairment to her 
 
            body as a whole, education, motivation, permanent lifting 
 
            restrictions and functional limitations, pre-injury earnings 
 
            and post-injury earning potential, the undersigned finds 
 
            claimant has a substantial loss of earning capacity and 
 
            claimant has incurred a 45 percent industrial disability.
 
            
 
                 Claimant seeks payment for certain medical bills set 
 
            out on joint exhibit 9 which arise as an 85.27 issue.  The 
 
            undersigned finds that Dr. Boulden and the Des Moines Bone & 
 
            Joint, P.C., were not authorized doctors.  Claimant had the 
 
            right to see these doctors at her own expense.  It appears 
 
            that claimant disagreed with the University of Iowa 
 
            Diagnostic Spine Clinic and its conclusions.  This does not 
 
            automatically give her the right to seek other doctors at 
 
            defendant employer's expense.  There is no 85.39 application 
 
            filed herein.  The undersigned finds that Dr. Boulden's 
 
            bills in the amount of $185 and $52 and the Des Moines Bone 
 
            & Joint bill in the amount of $185 are to be paid by the 
 
            claimant.  The other bills in joint exhibit 9 should be paid 
 
            by defendants.  The undersigned finds that the pharmacy bill 
 
            was for prescriptions to help claimant's medical problems as 
 
            a result of the October 2, 1987 injury.  The Manual Therapy 
 
            Center, which was prescribed by Dr. Boulden, did in fact 
 
            help claimant and the undersigned finds that that bill 
 
            should be paid as it was necessary and causally connected to 
 
            her October 2, 1987 injury.
 
            
 
                 Claimant seeks 85.13(4) penalty benefits.  It appears 
 
            defendants paid 15 weeks of permanent partial disability 
 
            benefits based on a 3 percent impairment.  Although this is 
 
            a close issue in part, the undersigned finds that the total 
 
            facts in this case show there was not an unreasonable delay 
 
            in the commencement or termination of benefits.  It appears 
 
            that one of the big contentions of the claimant is that 
 
            defendants paid healing period only through March 27, 1989, 
 
            and claimant contends that it should be for another one and 
 
            one-half years and, therefore, there would be penalty 
 
            benefits on those payments claimant feels should have been 
 
            paid.  The undersigned finds that defendants did pay the 
 
            healing period through the period in which they should have 
 
            paid them.
 
            
 
                 The undersigned might note that defendants have made a 
 
            conclusion similar to conclusions made by insurance carriers 
 
            in other cases by taking the permanent impairment and 
 
            multiplying it against 500 weeks.  Although this is an easy 
 
            mathematical procedure, the determination of industrial 
 
            disability is not a mathematical or calculating type 
 
            procedure, but is an evaluation and defendants do put 
 
            themselves at risk when the facts of a case are such that it 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            could very well be obvious that impairment has no relation 
 
            to the industrial disability and that other important 
 
            factors such as restrictions, etc., are not considered.  
 
            Impairment is but one criterion in determining industrial 
 
            disability.  As indicated above, it was a close call as to 
 
            whether to order 86.13(4) penalty benefits, but the 
 
            undersigned finds claimant is not entitled to penalty 
 
            benefits.
 
            
 
                                conclusions of law
 
            
 
                 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 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 Iowa Code section 85.27 provides, in part:
 
            
 
                    For purposes of this section, the employer is 
 
                 obliged to furnish reasonable services and 
 
                 supplies to treat an injured employee, and has the 
 
                 right to choose the care.  The treatment must be 
 
                 offered promptly and be reasonably suited to treat 
 
                 the injury without undue inconvenience to the 
 
                 employee.  If the employee has reason to be 
 
                 dissatisfied with the care offered, the employee 
 
                 should communicate the basis of such 
 
                 dissatisfaction to the employer, in writing if 
 
                 requested, following which the employer and the 
 
                 employee may agree to alternate care reasonably 
 
                 suited to treat the injury.  If the employer and 
 
                 employee cannot agree on such alternate care, the 
 
                 commissioner may, upon application and reasonable 
 
                 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.
 
            
 
                 Iowa Code section 86.13 provides, in part:
 
            
 
                    If a delay in commencement or termination of 
 
                 benefits occurs without reasonable or probable 
 
                 cause or excuse, the industrial commissioner shall 
 
                 award benefits in addition to those benefits 
 
                 payable under this chapter, or chapter 85, 85A, or 
 
                 85B, up to fifty percent of the amount of benefits 
 
                 that were unreasonably delayed or denied.
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant incurred an injury on October 2, 1987, that 
 
            arose out of and in the course of her employment and said 
 
            injury caused claimant to incur an industrial disability of 
 
            45 percent.
 
            
 
                 Claimant's October 2, 1987 work injury caused claimant 
 
            to incur a permanent impairment and permanent lifting 
 
            restrictions of 45 pounds one time lifting or not to be done 
 
            more than four times per hour, and a repetitive lifting 
 
            limit of approximately 22 to 24 pounds.
 
            
 
                 Claimant's October 2, 1987 injury caused claimant to 
 
            incur a healing period beginning October 3, 1987 through 
 
            March 27, 1989, totaling 77 weeks.
 
            
 
                 Claimant has a substantial loss of earnings as a result 
 
            of her October 2, 1987 injury.
 
            
 
                 Because of claimant's October 2, 1987 injury, she is 
 
            unable to return to the same or similar type of work she was 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            doing at the time of said injury and is unable to do the 
 
            extent of lifting, twisting and bending she was able to do 
 
            prior to her October 1987 injury.
 
            
 
                 Defendants are not responsible for the Des Moines Bone 
 
            & Joint, P.C., bill in the amount of $185 or Dr. Boulden's 
 
            bills totaling $237.
 
            
 
                 Defendants are responsible for all other bills set out 
 
            in joint exhibit J-9.
 
            
 
                 Claimant is not entitled to any 86.13(4) penalty 
 
            benefits.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay unto claimant healing period 
 
            benefits at the rate of one hundred ninety-three and 07/100 
 
            dollars ($193.07) per week beginning October 3, 1987 through 
 
            March 27, 1989.
 
            
 
                 That defendants shall pay unto claimant two hundred 
 
            twenty-five (225) weeks of permanent partial disability 
 
            benefits at the rate of one hundred ninety-three and 07/100 
 
            dollars ($193.07) per week beginning March 28, 1989.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and receive credit against the award for weekly 
 
            benefits previously paid.  Claimant has already been paid 
 
            all healing period benefits.  As stipulated by the parties, 
 
            claimant has been paid fifteen (15) weeks of permanent 
 
            partial disability benefits.
 
            
 
                 That defendants are responsible for all those bills on 
 
            joint exhibit J-9 except for the Des Moines Bone & Joint 
 
            bill in the amount of one hundred eighty-five dollars 
 
            ($185.00) and Dr. Boulden's bills in the total amount of two 
 
            hundred thirty-seven dollars ($237.00).  Therefore, 
 
            defendants shall pay three hundred seventy-one and 19/100 
 
            dollars ($371.19) which is the total of remaining bills that 
 
            defendants are ordered to pay involving joint exhibit J-9.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of October, 1991.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Randall E Nielsen
 
            Attorney at Law
 
            800 Brick & Tile Bldg
 
            P O Box 1588
 
            Mason City IA 50401
 
            
 
            Mr J Richard Johnson
 
            Attorney at Law
 
            1715 First Ave SE
 
            P O Box 607
 
            Cedar Rapids IA 52406
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      1802; 1803; 1807;
 
                      5-2503; 4000
 
                      Filed October 25, 1991
 
                      Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SANDRA K. SMITH,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 864638
 
            CLEAR LAKE BAKERY,            :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            TRANSAMERICA INSURANCE,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1803; 1807
 
            Thirty-eight year old claimant awarded 45% industrial 
 
            disability.  Claimant had a 36% loss of income, restrictions 
 
            preventing her from doing her former work.  The employer had 
 
            no job for her.  They were afraid she may get reinjured.
 
            
 
            5-2503
 
            Claimant awarded some 85.27 benefits and denied payment of 
 
            other bills.
 
            
 
            1802
 
            Claimant was not awarded requested one and one-half years 
 
            additional healing period benefits but was awarded 77 weeks 
 
            which defendants had already paid.
 
            
 
            4000
 
            Claimant was not awarded any 86.13(4) penalty benefits in a 
 
            close call situation.