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                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JAMES S. DESPARD,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 864763
 
            JEFFERSON BUS LINES,          :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            UTICA NATIONAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                 
 
            
 
                 This is a proceeding in arbitration brought by James S. 
 
            Despard, (claimant) commenced with the filing of a petition 
 
            on September 1, 1988 against Jefferson Lines, Inc. 
 
            (Jefferson Lines) employer and Utica National Insurance 
 
            Company (Utica) insurer, (collectively defendants) for 
 
            worker's compensation benefits as a result of an alleged 
 
            injury to claimant's back occurring on August 20, 1987.  On 
 
            October 30, 1990, the matter came on for hearing in the 
 
            Webster County courthouse in Fort Dodge, Iowa.  The parties 
 
            appeared as follows:  the claimant in person and by his 
 
            counsel M. Gene Blackburn of Fort Dodge, Iowa(1) and Jefferson 
 
            Lines and Utica by their counsel Jerry C. Estes of Fort 
 
            Dodge, Iowa.  
 
            
 
                 The record in this proceeding consisted of the 
 
            following:
 
            
 
                 1.  The live testimony of the Claimant, and the 
 
            testimony of Mary Despard.  
 
            
 
                 2.  Claimant's exhibits 1-4 and defendants' exhibits 
 
            A-E.
 
            
 
                 At the close of all evidence, the case was deemed fully 
 
            submitted.
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the amended prehearing report submitted by 
 
            the parties and approved at the hearing, the following 
 
            issues are presented for resolution:
 
            
 
                 1.  Whether the injury suffered on August 20, 1987 
 
            arose out of and in the course of employment.
 
            
 
                 2.  Whether the alleged injury is a cause of temporary 
 
            (1)  While this case was awaiting decision, Mr. Blackburn 
 
            died on December 8, 1990.
 
            
 
            
 
            
 
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            disability or a permanent disability.
 
            
 
                 3.  The extent of entitlement to weekly compensation 
 
            for temporary total disability benefits or healing period 
 
            benefits and permanent disability.
 
            
 
                 4.  Entitlement to medical benefits under Iowa Code 
 
            section 85.27 (1989) and whether the medical expenses are 
 
            causally related to the work injury or to the medical 
 
            condition upon which claimant bases his claim.
 
            
 
                 5.  The taxation of the acutal costs of this action.
 
            STIPULATIONS
 
            
 
                 As part of the prehearing report the parties have 
 
            stipulated to the following:
 
            
 
                 That an employer-employee relationship existed between 
 
            claimant and employer at the time of the alleged injury.
 
            
 
                 That the type of permanent disability, if the injury is 
 
            found to be a cause of permanent disability, is industrial 
 
            disability to the body as a whole.
 
            
 
                 That the commencement date for permanent disability 
 
            benefits, in the event such benefits are awarded, is January 
 
            20, 1988.
 
            
 
                 That the rate of compensation, in the event of an 
 
            award, is $308.70 per week, based upon a gross wage of 
 
            $492.63 per week and three exemptions.
 
            
 
                 That the fees charged for medical services are fair and 
 
            reasonable and that they were incurred for reasonable and 
 
            necessary medical treatment.
 
            
 
                 That the causal connection of the expenses to treatment 
 
            for a medical condition upon which claimant is now basing 
 
            his claim is admitted, but the causal connection of this 
 
            condition to a work injury remains an issue to be decided in 
 
            these proceedings.
 
            
 
                 That defendants make no claim for credit for employee 
 
            nonoccupational group health plan benefits or workers' 
 
            compensation benefits paid to claimant prior to hearing.
 
            
 
                 That the provider of medical services would testify 
 
            that the fees charged were reasonable and defendant is not 
 
            offering contrary evidence.
 
            
 
                 That defendants are entitled to a credit in the amount 
 
            of six weeks and 5 days at the rate of $308.70 plus $287.14 
 
            temporary partial disability paid for one week for all prior 
 
            workers' compensation benefits paid to claimant for his back 
 
            injury.
 
            
 
                 That there are no bifurcated claims.
 
            
 
                                 FINDINGS OF FACT
 
            
 

 
            
 
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                 After considering all of the evidence and the arguments 
 
            of counsel, the undersigned makes the following findings of 
 
            fact and conclusions of law.
 
            
 
                 1.  Claimant was 53 at the time of the hearing.  He was 
 
            50 at the time of the alleged injury date on August 20, 
 
            1987.
 
            
 
                 2.  Claimant grew up in Manson, Iowa.  He graduated 
 
            from high school in 1955.  He served in the Marine Corps for 
 
            3 years after he graduated from high school.  Upon discharge 
 
            from the service, claimant held a variety of jobs.  These 
 
            included a sales job, various positions including a 
 
            supervisory position with United Parcel Post, and a delivery 
 
            and repair job for Consolidated Cooperative in Gowrie Iowa.  
 
            Claimant had his own trenching, plumbing and heating 
 
            business between 1979 and 1981.  In 1981, claimant sold his 
 
            business and became a full time bus driver for Northwest 
 
            Iowa Bus Lines.
 
            
 
                 3.  In 1983, claimant became a reserve disaster 
 
            assistant with the Federal Emergency Management 
 
            Administration (FEMA) and continues in that capacity to 
 
            date.  Claimant was employed on an on call basis as an 
 
            adjuster.  He travels to the location of a federally 
 
            declared disaster area and gives assistance to disaster 
 
            victims.  Between 1983 and 1986 claimant worked 7 disasters.  
 
            The time commitment varied with the severity of the 
 
            disaster.  For example, claimant's first disaster required 
 
            him to reside in St. Joseph, Missouri for 30 days.  During 
 
            1988, claimant was called to assist with disasters in the 
 
            South Pacific.  On those occasions, claimant was out of the 
 
            country for approximately three to six weeks at a time.  
 
            During 1989, claimant was called in to assist with the 
 
            aftermath of Hurricane Hugo and remained in the Southeastern 
 
            part of the U.S. from September 1989 through February 1990.  
 
            During the remaining part of 1990 until the time of the 
 
            hearing on this matter, claimant assisted with disasters in 
 
            Kansas City, Des Moines and Cedar Rapids.  This position 
 
            with FEMA pays $14.00 per hour without benefits.  Claimant 
 
            is not called for every disaster and has the option to turn 
 
            down work if he is called.  When Claimant is called to work 
 
            on a disaster, he generally works 12 hours per day, seven 
 
            days per week until the initial crisis has passed.  
 
            Thereafter, claimant does paperwork and other desk related 
 
            type duties until FEMA closes its office at the disaster 
 
            site.  Claimant expects to earn $29,200 from his work with 
 
            FEMA in 1990.  Claimant enjoys his work with FEMA and has 
 
            purposefully made his work schedule flexible enough to 
 
            accommodate calls from FEMA.  
 
            
 
                 3.  Claimant accepted a bus driver position with 
 
            Jefferson Lines in late spring 1986.  Before he could start 
 
            driving for Jefferson Lines he was required to pass a 
 
            physical.  On June 16, 1986, claimant had a complete 
 
            physical which included a drug screen, blood work and a 
 
            treadmill test.  David Temple, M.D., examined claimant and 
 
            reviewed the test results.  Claimant was found to be a 
 
            relatively healthy middle aged man with a supple neck and a 
 
            spine that moved well without deformity.  Claimant gave a 
 

 
            
 
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            history of being a smoker for 25 years at the rate of a pack 
 
            and a half per day.  He had a tonsillectomy in 1957.  He had 
 
            no drug allergies.  He reported that he had no other 
 
            hospitalizations except for an occasion where he broke both 
 
            his arms.  Claimant told Dr. Temple that he had no other 
 
            serious illness.  Among other things, Claimant also denied 
 
            any history of headaches.
 
            
 
                 4.  In the history given to Dr. Temple, Claimant failed 
 
            to mention an acute lumbo-sacral strain to his low back on 
 
            May 14, 1971, an injury to his left shoulder in 1971, a 
 
            vasectomy for sterilization in 1977, a continuing problem 
 
            with his cervical and upper thoracic area which required a 
 
            home traction program in 1977 to deal with occasional 
 
            headaches, discomfort in the upper trapezius, and some 
 
            bilateral numbness of the upper extremities, and continuing 
 
            treatment through 1987, with Vaughn L. Maly, D.C.. Claimant 
 
            also had intermittent back pain resulting from work soreness 
 
            and had adjustments to his back numerous times between 1977 
 
            and 1986.  On January 8, 1982 claimant injured his back 
 
            while lifting.  He saw Dr. Maly for treatment.  Dr. Maly 
 
            indicated that claimant had injured a lumbar disc.  
 
            Claimant's failure to mention this history diminishes his 
 
            credibility.
 
            
 
                 5.  On August 20, 1987, claimant was directed by his 
 
            employer to drive to Newton, Iowa to pick up a tour group 
 
            for a trip to New York City.  Claimant's job duties required 
 
            him to keep the bus clean, assist passengers on and off the 
 
            bus, and load and unload luggage.  Claimant's rate of pay at 
 
            the time of this trip was $10.50 plus overtime and benefits.  
 
            No value was given for the benefit package offered by 
 
            Jefferson Lines.   While claimant was loading luggage, in 
 
            Newton, claimant felt a twinge and pain in his back.  The 
 
            pain became worse as the trip progressed.  However, claimant 
 
            did not seek medical treatment in New York and did not 
 
            contact Jefferson Lines to report his distress until some 
 
            time after the incident.  Claimant did not request a backup 
 
            driver and drove the tour group back to Iowa arriving before 
 
            September 5, 1987.
 
            
 
                 6.  On September 5, 1987, claimant sought treatment for 
 
            his low back pain from the lifting incident with Dr. Vaughn 
 
            Maly.  Dr. Maly indicated that claimant reported that he had 
 
            injured his back while lifting suitcases.  He noted that 
 
            claimant had cervical pain and lower back pain.  After 
 
            several visits, the low back pain had not resolved itself.  
 
            Dr. Maly recommended that claimant consult with Dr. Hayne 
 
            
 
                 7.  Claimant was examined by Dr. Temple on October 20, 
 
            1987.  During that examination, Dr. Temple found that 
 
            Claimant had full range of motion in his back with lateral 
 
            bending, twisting, flexing and hyperextension.  Straight leg 
 
            raising was negative bilaterally.  Dr. Temple concluded that 
 
            claimant had suffered a significant back injury, but had 
 
            fully recovered by October 20, 1987 and released him to go 
 
            back to work with no restrictions.  Dr. Temple suggested 
 
            that claimant be careful of his back because he was at risk 
 
            for reinjury.
 
            
 

 
            
 
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                 8.  Claimant returned to work on or about October 27, 
 
            1987, but his pain did not abate.  He next consulted with 
 
            Robert A. Hayne, M.D., regarding his back pain.  After a 
 
            series of studies on his spine and review of an earlier CT 
 
            scan, Dr. Hayne concluded that these tests were relatively 
 
            negative and prescribed conservative measures including a 
 
            brace to be worn while claimant was at work.(2)  Claimant was 
 
            released to work with no restrictions on November 29, 1987.
 
            
 
                 9.  On December 12, 1987, claimant reported another 
 
            injury to his back while lifting suitcases in Chicago.  
 
            Claimant was off work commencing on December 16, 1987.  He 
 
            also indicated he could not wear the brace that had been 
 
            prescribed for him because it cut into his lower abdomen.  
 
            Dr. Hayne scheduled another CAT scan to check for a ruptured 
 
            disc.
 
            
 
                 10. On January 6, 1988 a second CAT scan was performed.  
 
            The scan showed mild generalized bulging of the L4-5 disc 
 
            with minimal effacement of the thecal sac anteriorly on the 
 
            left.  There was some posterior bulging of the L5-S1 disc 
 
            but with mild compression and effacement of the thecal sac.  
 
            When Dr. Hayne compared this scan to the scan of November 
 
            23, 1987, he concluded there was no change and there was no 
 
            definite evidence of a protruded intervertebral disc.
 
            
 
                 11. On January 22, 1988, claimant called Dr. Hayne's 
 
            office to advise that he was going off to a government job.  
 
            Dr. Hayne's office notes indicate that claimant was to stay 
 
            off bus work for six weeks.
 
            
 
                 12. Claimant left for Guam and suffered no ill effects 
 
            from two long plane rides and the requirements of his duties 
 
            on Guam while working for FEMA.  Claimant returned from Guam 
 
            and was released to return to work with Jefferson Lines on 
 
            March 7, 1988.  
 
            
 
                 13. On May 6, 1988, Dr. Hayne gave claimant a two 
 
            percent (2%) functional impairment rating based upon 
 
            symptomatology.  Dr. Hayne attached his office notes to the 
 
            letter which gives this rating.  However, Dr. Hayne makes no 
 
            conclusion that the permanency rating is linked to the work 
 
            injury.
 
            
 
                 14. Sometime shortly after claimant returned to work, 
 
            FEMA called again and asked claimant to assist with a 
 
            disaster on the Island of Truk, a state in the Federated 
 
            States of Micronesia, located in the South Pacific.  
 
            Claimant took a leave of absence from his employment with 
 
            Jefferson Lines to take this assignment.
 
            
 
                 15. Claimant returned from his duties in the South 
 
            Pacific near the end of May, 1988.  Claimant had his annual 
 
            physical for Jefferson Lines on June 16, 1988.  During the 
 
            course of the examination, claimant told Dr. Temple that he 
 
            had intermittent back distress but his back was overall 
 
            better.  Claimant's x-rays indicated that the soft tissues 
 
            and bony structures were normal and the spine was straight.  
 
            (2)  On November 9, 1987 Claimant had a CT scan of his spine 
 
            that was negative.  Claimant was admitted to Iowa Methodist 
 
            Medical Center for a lumbar myelogram to rule out a 
 
            herniated disc.  The result of the myelogram showed minimal 
 
            bulging of the L4-5 disc on a lateral view but no 
 
            significant nerve root deviation or abnormality was 
 
            demonstrated.  An enhanced CT scan was performed after the 
 
            myelogram that showed mild generalized bulging of the disc 
 
            material, slightly greater on the left than on the right.  
 
            There was minimal evidence of impression n the ventral 
 
            aspect of the thecal sac.  At L5-S1 there was small midline 
 
            posterior disc bulge seen, but again there was minimal 
 
            impression on the ventral aspect of the thecal sac.
 
            
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            In comparing this film with film taken in 1986, Dr. Temple 
 
            noted there had been no appreciable change.  Dr. Temple 
 
            further noted that while the movement in claimant's spine 
 
            was fair, he could move from a lying to sitting to standing 
 
            position without any difficulties.  Claimant was also able 
 
            to hop on one foot without difficulty.  Dr. Temple gave no 
 
            functional permanency rating to claimant and released 
 
            claimant for work with no restrictions.
 
            
 
                 16. Sometime after June 16, 1988, claimant voluntarily 
 
            terminated his position with Jefferson Lines to accept 
 
            another assignment with FEMA.  
 
            
 
                 17. The testimony regarding claimant's other activities 
 
            for the remainder of 1988 is confused.  After claimant left 
 
            his employment with Jefferson Lines and between FEMA 
 
            assignments, claimant drove a pickup truck hauling a flatbed 
 
            trailer loaded with fiberglass bodies for Larry Hiser, a 
 
            farmer located in Manson, Iowa.  Claimant made at least one 
 
            trip to Texas and tolerated that trip well.  Claimant took 
 
            this job because he had an agreement with Hiser that would 
 
            enable him to leave this employment and return to it should 
 
            FEMA call with other assignments.
 
            
 
                 18. On December 19, 1988, claimant returned to Dr. 
 
            Hayne complaining of back pain.  Claimant told Dr. Hayne 
 
            that he had to quit his job with Jefferson Lines.  Claimant 
 
            also reported that he had taken a job delivering fiberglass 
 
            bodies and, "this requires him to be bounced about 
 
            considerably".  The information given to Dr. Hayne was 
 
            incomplete.  Claimant was not compelled to leave his 
 
            employment with Jefferson Lines, he voluntarily quit.  
 
            
 
                 19. Dr. Hayne ordered an MRI scan of the lumbar region.  
 
            This study revealed a small disc protrusion at the L4-5 and 
 
            at the L5-S1 levels in the midline without significant nerve 
 
            root or thecal sac encroachment.  Dr. Hayne increased 
 
            claimant's permanent partial disability to six percent of 
 
            the body as a whole.  Dr. Hayne did not indicate that the 
 
            increase in the claimant's rating was caused by the injury 
 
            suffered on August 20, 1987.  Additionally, Dr. Hayne did 
 
            not indicate how he reached this rating.  No surgery was 
 
            recommended and claimant had no restrictions.
 
            
 
                 20. Claimant was examined by Samir R. Wahby, M.D., on 
 
            May 8, 1989 in connection with his low back pain.  Dr. Wahby 
 
            found that his range of motion was within normal limits with 
 
            mild pain and discomfort in the lower lumbar region.  X-rays 
 
            of the lumbosacral region revealed mild degenerative changes 
 
            in the region.  Dr. Wahby concluded that claimant had 
 
            injured his facet joints.  Dr. Wahby made no rating and 
 
            reached no conclusion as to whether the work injury on 
 
            August 20, 1987 caused the degenerative changes noted on the 
 
            x-rays or the injury to the facet joints.  Dr. Wahby saw the 
 
            claimant once.
 
            21. At the time of the hearing, claimant indicated that he 
 
            was still working for FEMA on 1990 disasters in Iowa.  He 
 
            also indicated that he expected to be finished with his 
 
            current FEMA assignment within the next couple of weeks.  
 

 
            
 
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            Claimant had not sought other employment for the period of 
 
            time between FEMA assignments.
 
            22. The evidence is not clear as to what medical bills 
 
            remain unpaid to date.  The medical bills included in the 
 
            documentary evidence include the following:
 
            
 
                 
 
            Provider         Date                   Balance
 
            
 
                 Dr. Hayne   11-4-87 to 12-19-88    $25.00
 
                 Dr. Maly    7-20-89                $18.00
 
                 IMMC        1-12-88                $435.20
 
                 Ft. Dodge
 
                 Med. Ctr.   9-87                   $78.25
 
            
 
                 TOTAL:                             $556.45
 
            
 
                         CONCLUSIONS OF LAW AND ANALYSIS
 
            
 
                 The first issue for consideration is whether the injury 
 
            suffered on August 20,1987, arose out of and in the course 
 
            of employment.  Iowa Code sections 85.3(1) and 85.61(6) 
 
            (1989) govern the resolution of this issue.  Section 85.3(1) 
 
            provides that an employer shall pay compensation to an 
 
            employee, "for any and all personal injuries sustained by an 
 
            employee arising out of and in the course of the 
 
            employment".  Section 85.61(6) defines this phrase as:
 
            
 
                 [I]njuries to employees whose services are being 
 
                 performed on, in, or about the premises which are 
 
                 occupied, used, or controlled by the employer, and 
 
                 also injuries to those who are engaged elsewhere 
 
                 in places where their employer's business requires 
 
                 their presence and subjects them to dangers 
 
                 incident to the business.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the claimant 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, 908 (Iowa 1976); Musselman v. Central 
 
            Telephone Co., 154 N.W.2d 128, 130 (Iowa 1967).  The words 
 
            "arising out of" have been interpreted to refer to the cause 
 
            and origin of the injury.  McClure v. Union County, 188 
 
            N.W.2d 283, 287 (Iowa 1971);   Crowe v. DeSoto Consolidated 
 
            School District, 68 N.W.2d 63, 65 (Iowa 1955).  The words 
 
            "in the course of" refer to the time, place and 
 
            circumstances of the injury.  McClure, 188 N.W.2d at 287; 
 
            Crowe, 68 N.W.2d at 65.
 
            
 
                 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 the employee is doing 
 
            work assigned by the employer or something incidental to the 
 
            employment.  Cedar Rapids Community School District v. Cady, 
 
            278 N.W.2d 298, 299 (Iowa 1979), McClure, 188 N.W.2d at 287; 
 
            Musselman, 154 N.W.2d at 130. 
 
            
 
                 The claimant has proved by a preponderance of the 
 
            evidence that he suffered an injury during the course of his 
 

 
            
 
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            employment.  The record is uncontroverted that claimant 
 
            suffered some type of injury to his back on August 20, 1987.  
 
            Claimant consistently reported that he experienced some pain 
 
            on August 20, 1987, while lifting a suitcase into the 
 
            luggage compartment on a Jefferson Lines bus.  Claimant's 
 
            testimony was credible on this point.  Defendant's position 
 
            that the condition was preexisting is not a defense.  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, 76 N.W.2d 756, 760-61 (Iowa 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., 115 N.W.2d 812, 
 
            815 (Iowa 1962).
 
            
 
                 There is ample evidence in the record that claimant had 
 
            upper and lower back problems dating back to 1971 and that 
 
            he sought treatment for these conditions from Dr. Maly over 
 
            the course of several years.  However, those conditions were 
 
            stable at the time claimant began working for Jefferson 
 
            Lines.  An employer takes an employee subject to any active 
 
            or dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler v. United 
 
            States Gypsum Co., 106 N.W.2d 591, 595 (1960), and cases 
 
            cited therein.  In this instance it is not a defense that 
 
            claimant had preexisting back problems.  The employment 
 
            circumstance caused an injury to claimant's back.
 
            
 
                 This finding, does not end our inquiry however.  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., 133 N.W.2d 867, 868 (Iowa 1965);  
 
            Lindahl v. L. O. Boggs, 18 N.W.2d 607, 613-14 (Iowa 1945).  
 
            A possibility is insufficient; a probability is necessary.  
 
            Burt v. John Deere Waterloo Tractor Works, 73 N.W.2d 732, 
 
            738 (Iowa 1955).  The Supreme Court has long observed that 
 
            an injury is the producing cause.  The disability, which 
 
            generally determines the extent of compensation payments, is 
 
            the result of the cause (injury) upon the human body as it 
 
            bears upon the ability of the injured person to earn wages.  
 
            Barton v. Nevada Poultry Co., 110 N.W.2d 660, 663  (Iowa 
 
            1961).
 
            
 
                 In order to resolve the second issue, the claimant must 
 
            show that the injury suffered on August 20, 1987 resulted in 
 
            a temporary or permanent disability.  The question of causal 
 
            connection is essentially within the domain of expert 
 
            testimony.  Bradshaw v. Iowa Methodist Hospital, 101 N.W.2d 
 
            167, 171 (Iowa 1960).  However, expert medical evidence must 
 
            be considered with all other evidence introduced bearing on 
 
            the causal connection.  Burt, 73 N.W.2d at 738.  The opinion 
 
            of the experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903, 907 (Iowa 1974).  Moreover, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 

 
            
 
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            fact.  Sondag, 220 N.W.2d at 907.  Finally, the weight to be 
 
            given to such an opinion is for the finder of fact, and that 
 
            may be affected by the completeness of the premise given the 
 
            expert and other material circumstances.  Bodish, 133 N.W.2d 
 
            at 870; Musselman, 154 N.W.2d at 133.  The Supreme Court has 
 
            also observed that greater deference is ordinarily accorded 
 
            expert testimony where the opinion necessarily rests on 
 
            medical expertise.  Sondag, 220 N.W.2d at 907
 
            
 
                 The claimant has proven that he was temporarily 
 
            disabled as a result of his back injury.  He has failed to 
 
            prove that he sustained a permanent injury to his back.  The 
 
            evidence clearly shows that claimant was off work due to his 
 
            back between September 5, 1987 and October 20, 1987, October 
 
            27, 1987 to November 29, 1987, and December 16, 1987 to 
 
            January 22, 1988 when he accepted a FEMA assignment in Guam.  
 
            The evidence also demonstrates that claimant was capable of 
 
            resuming all of his duties in connection with his employment 
 
            with FEMA and he was equally capable of resuming his duties 
 
            with Jefferson Bus Lines when he returned from Guam.  
 
            Claimant simply chose not to do so as he voluntarily 
 
            terminated his position with Jefferson Bus Lines to increase 
 
            his availability for FEMA assignments.  Moreover, claimant 
 
            was released for work with no restrictions and claimant had 
 
            no loss of earning capacity.  Claimant demonstrated his 
 
            ability to resume his driving responsibilities when he drove 
 
            loads for Larry Hiser to Texas.  This evidence, when coupled 
 
            with the dearth of medical evidence linking claimant's work 
 
            injury to the permanency ratings given by Dr. Hayne either 
 
            in May of 1988 or February of 1989, shows that claimant has 
 
            failed in his proof.  Nor is the authority cited by claimant 
 
            of any assistance.  In both cases cited, the medical 
 
            evidence firmly established that the work injury caused a 
 
            permanent disability.  Brincks v. Case Power & Equipment, 
 
            File No. 843233, slip op. at 4 (Iowa Ind. Comm'r Nov. 20, 
 
            1989)(The medical evidence in the case showed that claimant 
 
            had a spondylolisthesis and that the work injury either 
 
            caused or aggravated the condition), aff'd, (Iowa Ind. 
 
            Comm'r App. Dec. April 18, 1990); Caruth v. Tenneco/Case 
 
            Power & Equipment Co., File No. 793512, slip op. at 4 (Iowa 
 
            Ind. Comm'r March 29, 1988)(Dr. Boulden concluded that there 
 
            was a definite relationship between the work injury and the 
 
            claimant's present symptoms and complaints), aff'd, (Iowa 
 
            Ind. Comm'r App. Dec. October 31, 1988).  There is no such 
 
            evidence here.  
 
            
 
                 Pursuant to Iowa Code sections 85.32 and 85.33 (1989) 
 
            an injured worker is entitled to such temporary disability 
 
            benefits from the date of injury until claimant returns to 
 
            work or until claimant is medically capable of returning to 
 
            substantially similar work the claimant was performing at 
 
            the time of the injury, whichever occurs first.  However, 
 
            maximum medical improvement, one of the tests for ending a 
 
            healing period, is not a test for determining the end of 
 
            temporary total disability.  In this case, Claimant returned 
 
            to work at another job on January 22, 1988.  At that point, 
 

 
            
 
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            his temporary benefits came to an end.  Claimant is 
 
            therefore entitled to 17.142 weeks of temporary total 
 
            disability benefits.
 
            
 
                 The next issue in dispute involves the claimant's 
 
            entitlement to medical benefits and whether the medical 
 
            expenses are causally related to the work injury.  Iowa Code 
 
            section 85.27 governs the payment of medical benefits.  From 
 
            the evidence presented it appears that claimant is seeking 
 
            payment for bills from Dr. Hayne, Iowa Methodist Medical 
 
            Center (IMMC), Dr. Maly and Fort Dodge Medical Center.  The 
 
            bills attached to claimant's exhibits 2, 3, and 4 show the 
 
            following amounts due:
 
            
 
                 
 
                 Provider    Date                   Balance
 
            
 
                 Dr. Hayne   11-4-87 to 12-19-88    $25.00
 
                 Dr. Maly    7-20-89                $18.00
 
                 IMMC        1-12-88                $435.20
 
                 Ft. Dodge
 
                 Med. Ctr.   9-87                   $78.25
 
                                     TOTAL:         $556.45
 
            
 
                 Jefferson Lines is liable for the bills related to 
 
            claiamant's injuries.  The undersigned finds that the 
 
            medical expenses identified above, except for the back 
 
            adjustment by Dr. Maly on Jul 20, 1989, are casually 
 
            connected to the work injury and they are related to the 
 
            work injury upon which claimant bases his claim.
 
            
 
                 The final issue for resolution is the taxation of 
 
            costs.  The assessment of costs is governed by Iowa Code 
 
            section 86.40 (1989).(3)  In Iowa, the general rule is that 
 
            the losing party shall pay the costs of the action.  Iowa 
 
            Code Section 625.1, (1989); Lalla v. Gilroy, 369 N.W.2d 431, 
 
            434, (Iowa 1985); Walters v. Bartel, 254 N.W.2d 321, 323, 
 
            (Iowa 1977).  In this instance, the claimant was successful 
 
            in showing that he had suffered a temporary disability.  
 
            Consequently, the costs of this action are taxed to 
 
            Jefferson Lines and Utica.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 1.  That Jefferson Lines and Utica National Insurance 
 
            shall pay to claimant seventeen point one hundred and 
 
            forty-two (17.142) weeks of temporary total disability 
 
            benefits at the rate of three hundred eight and 70/100 
 
            dollars ($308.70).
 
            
 
                 2.  That Jefferson Lines and Utica National Insurance 
 
            shall pay the accrued weekly benefits in a lump sum with 
 
            interest at the statutory rate as set forth in Iowa Code 
 
            section 85.30 (1989).
 
            
 
                 3.  That Jefferson Lines and Utica National Insurance 
 
            shall pay five hundred thirty-eight and 45/100 dollars 
 
            ($538.45) in medical benefits.
 
            (3)  Iowa Code Section 86.40 (1989) provides that all costs 
 
            incurred in the hearing before e the commissioner shall be 
 
            taxed in the discretion of the commissioner.  The 
 
            description of such costs is included in 343 IAC 4.33.
 
            
 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
                 4.  That Jefferson Lines and Utica National Insurance 
 
            shall receive credit against the award for weekly benefits 
 
            and medical benefits previously paid.
 
            
 
                 5.  That the costs of this action shall be assessed to 
 
            Jefferson Lines and Utica National Insurance pursuant to 
 
            Iowa Code section 86.40 and Rule 343 IAC 4.33.
 
            
 
                 6.  Jefferson Lines and Utica National Insurance shall 
 
            file a claim activity report upon payment of this award.
 
            
 
                 Signed and filed this ____ day of December, 1990.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          ELIZABETH A. NELSON
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr James S Despard
 
            1206 12th Avenue
 
            Manson Iowa 50563
 
            (CERTIFIED & REGULAR MAIL)
 
            
 
            Mr M Gene Blackburn
 
            Attorney at Law
 
            142 N 9th Street
 
            PO Box 817
 
            Fort Dodge Iowa 50501
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            
 
            Mr Jerry C Estes
 
            Attorney at Law
 
            400 Boston Centre
 
            PO Box 1314
 
            Fort Dodge Iowa 50501
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1801
 
                      Filed December 28, 1990
 
                      ELIZABETH A. NELSON
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            JAMES S. DESPARD,   :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :        File No. 864763
 
            JEFFERSON BUS LINES,     :
 
                      :     A R B I T R A T I O N
 
                 Employer, :
 
                      :        D E C I S I O N
 
            and       :
 
                      :
 
            UTICA NATIONAL INSURANCE CO., :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-1801
 
            
 
            Claimant suffered an injury to his back, but failed to prove 
 
            permanency.  There was no causal connection made between the 
 
            functional impairment and the work injury.  Claimant was 
 
            awarded 17 weeks of temporary total disability.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RALPH H. FLOR,
 
         
 
              Claimant,                             File No. 864771
 
         
 
         vs.                                     A R B I T R A T I O N
 
         
 
         ADM CLINTON, IOWA,                         D E C I S I O N
 
         
 
              Employer,
 
                                                       F I L E D
 
         and
 
                                                      MAY 29 1990
 
         OLD REPUBLIC INSURANCE CO.,
 
                                                  INDUSTRIAL SERVICES
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Ralph H. Flor, against his employer, ADM Clinton, Iowa, and its 
 
         insurance carrier, Old Republic Insurance Company, to recover 
 
         benefits under the Iowa Workers' Compensation Act as a result of 
 
         an injury sustained September 30, 1987.  This matter came on for 
 
         hearing before the undersigned deputy industrial commissioner at 
 
         Davenport, Iowa on April 16, 1990.  A first report of injury was 
 
         filed on October 12, 1987.  At hearing, the parties stipulated 
 
         that claimant has received 132 weeks of benefits at the 
 
         stipulated rate as of April 14, 1990.
 
         
 
              The record in this proceeding consists of the testimony of 
 
         claimant as well as of his spouse, Alene Flor, and of Kenneth C. 
 
         Plumb and of joint exhibits A through K as identified on the 
 
         joint exhibit list.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report and the oral stipulation 
 
         of the parties at hearing, the parties stipulated that:  claimant 
 
         did receive an injury which arose out of and in the course of his 
 
         employment on September 30, 1987; that a causal relationship 
 
         exists between claimant's injury and temporary total disability 
 
         and permanent partial disability; that claimant was temporarily 
 
         totally disabled from October 1, 1987 through April 10, 1989; 
 
         that claimant's commencement date for permanency is April 11, 
 
         1989; and that claimant's rate of weekly compensation is $370.82.
 
         
 
              The issue remaining to be decided is the extent of permanent 
 
         partial disability.
 
         
 
                              REVIEW OF THE EVIDENCE
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant is 65 years old and has completed eighth grade.  He 
 
         worked for ADM Clinton and its predecessor, Clinton Corn, from 
 
         September, 1966 onward.  Prior to that, he had worked at the 
 
         Savannah Ordinance Depot, had been in the armed services, and had 
 
         farmed on both a full and part-time basis.  Claimant had done 
 
         general labor which has also involved machine operation and 
 
         record keeping at Clinton Corn and ADM.  When injured, he was a 
 
         bulk loader.  Claimant reported working 50-60 hours [per week] in 
 
         the month preceding September 30, 1987.  On September 30, 1987, a 
 
         dust collector hose became disconnected and hit claimant on the 
 
         left side of the face.  Claimant fell over the edge of a railroad 
 
         car landing on concrete on his left face, elbow and hip.
 
         
 
              Claimant sustained an open left distal humerus fracture, 
 
         commuted with interarticular extension, a left orbital fracture, 
 
         a left facial maxillary sinus fracture, and apparently aggravated 
 
         his high blood pressure on account of that injury.  Claimant 
 
         underwent open reduction and internal fixation of the distal 
 
         humerus fracture with Charles T. Cassel, M.D., the attending 
 
         surgeon.  E. V. Motto, M.D., attended claimant for high blood 
 
         pressure which was brought under control with the use of Diazene. 
 
         William Barker, M.D., and a Dr. Arbisser saw claimant for his 
 
         facial fracture and orbital fracture and contusion to the left 
 
         eye, respectively.  Those problems were treated conservatively 
 
         without drugs or invasive procedures.
 
         
 
              Claimant subsequently underwent two other surgical 
 
         procedures on the left upper extremity.  He initially had surgery 
 
         for hardware removal, decompression, and anterior ulnar nerve 
 
         transfer in summer, 1988 and then had a second surgery for 
 
         hardware removal.  Claimant reported that, on account of the two 
 
         latter surgeries, four of nine pins originally placed in his left 
 
         upper extremity were removed.  Claimant also underwent physical 
 
         therapy for his left elbow.
 
         
 
              Claimant reported that his jaw continues to pop out and he 
 
         must physically relocate it.  Claimant takes one blood pressure 
 
         medication tablet per day, apparently Diazene.  He never needed 
 
         medical treatment for blood pressure prior to his injury.  He has 
 
         difficulty walking on hard surfaces and standing, walking and 
 
         sitting for a prolonged time is painful.  The fingers on his left 
 
         hand pull into his palm in a clawing position and go numb; he has 
 
         to rub them to regain normal movement.  He has arm and shoulder 
 
         pain and he cannot move his arm away from his body, although he 
 
         can bring the arm in towards his body.  Claimant reported that 
 
         any vibration causes the whole left arm to go numb.
 
         
 
              Claimant had done carpentry in his own home and occasionally 
 
         on a contractual basis prior to his injury.  He reported that he 
 
         could no longer do such.  Claimant had enjoyed antique buying and 
 
         refinishing furniture prior to his injury.  He now has difficulty 
 
         doing refinishing.  Claimant had golfed, boated, fished, and 
 
         danced prior to his injury.  He reported that he can now dance no 
 
         more than an hour and that he can fish only if someone helps him 
 
         with his boat motor.  Claimant reported that he cannot lift over 
 
         ten pounds and that lifting must be from straight in front of his 
 
         body and not with an extended, outward motion.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant has not returned to ADM since his injury.  ADM 
 
         personnel had offered him a forklift job.  He told the ADM plant 
 
         manager and his former foreman that he would be unable to do that 
 
         job as it involved lifting of over 100 pounds on occasion and 
 
         machine bouncing.  No light-duty work was available.  Claimant's 
 
         employment with ADM was suspended after two years as a result of 
 
         his inability to work.  Claimant then took retirement.  Claimant 
 
         had planned to work until age 68 prior to his injury.  Work until 
 
         that age was necessary in order to recoup retirement benefits 
 
         lost on account of the Clinton Corn/ADM conversion.  Claimant 
 
         would have received an additional $20 per month for each 
 
         additional year worked.  His injury resulted in his retirement 
 
         three years earlier than he had originally planned.
 
         
 
              Claimant inquired about a variety of jobs subsequent to 
 
         his.injury, including school bus driver, school janitor, fast 
 
         food shop maintenance worker, implement store delivery man, 
 
         set-up person and garden supply center clerk.  Claimant felt 
 
         after his discussions with individuals that he would be unable to 
 
         handle any of those jobs.  He did not actually apply for work or 
 
         attempt work at any of those establishments.  Claimant reported 
 
         that he had refused a contract to build a home deck as he felt he 
 
         could not handle the work.  Claimant prior to his injury had 
 
         planned on doing farming and carpentry on a part-time basis 
 
         subsequent to his retirement.  He reported he can no longer 
 
         handle those jobs. Claimant agreed he had never contacted any ADM 
 
         personnel about coming back to work subsequent to his injury.  
 
         Claimant did not feel there were any jobs in the starch plant 
 
         which he could perform.  Claimant has never contacted the Iowa 
 
         Department of Job Service or Iowa State Vocational Rehabilitation 
 
         Services regarding a job search or vocational rehabilitation.  
 
         Claimant is right-hand dominant.  He intends to remain retired 
 
         unless things get so bad off financially that he must return to 
 
         work.
 
         
 
              Claimant's current monthly income consists of $640.00 in 
 
         Social Security retirement benefits from which a Medicare benefit 
 
         payment is deducted; $120.00 per month in ADM retirement 
 
         benefits; and, $135.00 per month in Clinton Corn retirement 
 
         benefits.  He also receives his workers' compensation benefits of 
 
         $370.82 per week.  Claimant reported a greater income while 
 
         working, reporting that a number of weeks his checks stubs 
 
         reflected earnings of $600.00 per week.  Check stubs were not in 
 
         evidence.  Under the July 1, 1987 benefit schedule, a weekly rate 
 
         of $370.82 for an individual who is married and entitled to two 
 
         exemptions would reflect a gross weekly wage of $610.00.  
 
         Claimant's spouse corroborated his testimony.
 
         
 
              Kenneth Plumb, ADM plant manager, indicated that claimant 
 
         was offered the forklift job, that claimant demonstrated his 
 
         lifting ability and motion in his left arm and that claimant felt 
 
         he would be unable to do the job and refused to try the job.  
 
         Plumb reported that other jobs were considered for claimant, but 
 
         such would have involved lifting or ladder climbing.  Guard and 
 
         watch duties at ADM and housekeeping duties at ADM are contracted 
 
         out. Claimant would have needed to check with the contractors as 
 
         to availability of those types of jobs.  Plumb expressed his 
 
         belief that claimant could have fulfilled the duties for those 
 
         jobs. Plumb opined that in September, 1989 claimant did not seem 
 
         interested in returning to work, did not seem concerned about not 
 
         having a job, and was not actively seeking employment.  Plumb 
 
         characterized claimant as having been a very good worker who 
 
         worked long hours in the months prior to his injury.  He reported 
 
         that cleaning off loads is the exception, not the rule, for 
 
         forklift drivers.
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              On April 11, 1989, Dr. Cassel opined that claimant had 
 
         severe injury to his left elbow and secondary injuries to his 
 
         left shoulder.  Claimant had ulnar nerve dysfunction with 
 
         weakness and pain in the arm and loss of motion in both his elbow 
 
         and his shoulder.  Claimant had a 9 percent impairment of the 
 
         left upper extremity due to loss of motion from negative 30 to 
 
         102 degrees with 3 percent of the impairment due to loss of 
 
         extension and 6 percent due to loss of flexion.  Claimant had 
 
         full pronation, but impairment for loss of supination equal to 2 
 
         percent, giving an 11 percent impairment of the left upper 
 
         extremity secondary to loss of motion to the elbow.  Claimant has 
 
         loss of motion at the shoulder equal to 5 percent impairment of 
 
         the shoulder for loss of full abduction, 4 percent for loss of 
 
         full forward flexion, 3 percent for loss of full external 
 
         rotation, and 1 percent for loss of full internal rotation 
 
         equalling a total 13 percent impairment of the shoulder for loss 
 
         of motion.  Claimant has weakness of external rotators involving 
 
         the supraspinatus, infraspinatus, teres minor and major, and 
 
         suprascapular nerve and lower subscapular nerve involvement with 
 
         a 30 percent loss of maximum strength as a result of nerve 
 
         involvement.  Gradation of strength was at 20 percent with the 30 
 
         percent and the 20 percent equalling a 6 percent impairment for 
 
         shoulder weakness.  Claimant had marked decreased grip strength 
 
         equalling 50 percent of his normal grip strength.  Dr. Cassel 
 
         opined he had a 25 percent weakness of grip strength in the hand 
 
         secondary to ulnar nerve dysfunction and a decreased sensation in 
 
         the ulnar distribution of the hand equal to 2 percent of 
 
         impairment.  Utilizing the combined values chart, Dr. Cassel 
 
         reported that claimant had a 30 percent impairment of the whole 
 
         person.
 
         
 
              Dr. Cassel, in his report of April 11, 1989 and in his 
 
         deposition of March 13, 1990, opined that claimant could not lift 
 
         more than 10-15 pounds with his left hand and could not do 
 
         repetitive lifting or overhead activity with his left upper 
 
         extremity.  The doctor opined claimant could not return to his 
 
         former job as claimant described the job to the doctor.
 
         
 
              On April 11, 1989, Dr. Cassel opined that claimant could 
 
         develop further progression of his pain and stiffness in his 
 
         shoulder, elbow, hand and wrist.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Our only concern is claimant's permanent partial disability 
 
         entitlement.
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). 
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted. Loss of earnings caused by a job transfer 
 
         for reasons related to the injury is also relevant.  These are 
 
         matters which the finder of fact considers collectively in 
 
         arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc. 
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 
              Also to be considered is the following decision of this 
 
         agency:
 
         
 
                  Although the Iowa Supreme Court has indicated that age 
 
              is a factor to be considered in determining industrial 
 
              disability, it does not indicate what the effect of young 
 
              age, middle age or older age is supposed to be.  Obviously, 
 
              it is a factor that cannot be considered separately but must 
 
              be considered in conjunction with the other factors.  For 
 
              example, the effects of a minor back injury upon a young 
 
              person with extensive formal education would limit the scope 
 
              of his potential employment less than that of a middle-aged 
 
              person with no formal education.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
                  How to apply age as a factor when a person is nearing 
 
              the end of his normal working life is a dilemma.  When 
 
              considering the age factor, it is apparent that the scope of 
 
              employment for which claimant is fitted is narrowed simply 
 
              because of the reluctance of employers to initially employ 
 
              persons of advanced years.  Therefore, the advanced age 
 
              alone without the combination of an injury is limiting.  
 
              Lack of education or at least a showing of diminished 
 
              educability is in and of itself also a limiting factor for 
 
              entry into many fields of employment . . .
 
         
 
                  The Michigan Supreme Court has stated regarding 
 
              retirement:
 
                  
 
                   Compensation benefits are geared to weekly wage loss. 
 
                   It is consistent with the concept of tying weekly 
 
                   compensation benefits to weekly wage loss to factor 
 
                   into the benefit program the statistically 
 
                   established generalization that workers, even if not 
 
                   disabled, retire between 60 and 75 and no longer earn 
 
                   weekly wages.  There is no discrimination against 
 
                   disabled workers over 65 in taking into account the 
 
                   wage loss they  would "presumptively" suffer due to 
 
                   normal retirement.  Cruz v. Chevrolet Grey Iron Div. 
 
                   of Gen. Motors, 247 N.W.2d 7641 775 (Mich. 1976).
 
         
 
              Claimant was 62 years old when injured.  His  testimony that 
 
         he intended to work until age 68 in order to recoup retirement 
 
         benefits lost in the ADM/Clinton Corn switch-over is credible. 
 
         Claimant sustained a moderately severe to severe body as a whole 
 
         injury on account of his work incident and subsequently retired 
 
         at age 65.  Claimant's employer attempted to find work for 
 
         claimant within .claimant's restrictions.  The employer respected 
 
         claimant's self-perception that he would be unable to do such 
 
         work.  The employer subsequently terminated claimant under a 
 
         plant policy requiring termination after a sustained period of 
 
         inability to work.  That termination does not reflect any refusal 
 
         on the part of the employer to accommodate claimant subsequent to 
 
         a work injury if such were possible.  Claimant has severe 
 
         limitations on the use of his left hand, arm, and shoulder as a 
 
         result of his work injury.  He has high blood pressure which was 
 
         not apparent prior to the injury, but which can be controlled 
 
         medically subsequent to the injury.  Claimant is right-hand 
 
         dominant.
 
         
 
              While claimant has only an eighth grade education, his 
 
         testimony was articulate and he appeared to be quite an 
 
         intelligent individual.  He has past work experience as a general 
 
         laborer as well as on occasion a machine operator and a record 
 
         keeper.  He has also farmed and also apparently has a local 
 
         reputation for being a good carpenter.  Claimant perceives 
 
         himself as unable to do any of those activities subsequent to his 
 
         work injury.  Claimant may well be correct that his physical 
 
         injuries make it difficult for him to engage in those activities 
 
         fully. Nevertheless, we do not share claimant's perception that 
 
         he is altogether handicapped by his work injury.  Claimant's past 
 
         work experience and his knowledge particularly as a carpenter and 
 
         to a lesser degree as an antique buyer, furniture refinisher, and 
 
         farmer certainly have resulted in a great deal of expert 
 
         knowledge and transferrable skills.  It is likely that claimant, 
 
         with some assistance with the physical aspects of performing each 
 
         enterprise, could continue to engage in income-generating 
 
         activities in each of those areas.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant does not appear well motivated to work.  In part, 
 
         that may result from claimant's perception that he can no longer 
 
         work.  In part, that may result from claimant's perception that 
 
         jobs available in the local economy for him are jobs which would 
 
         generate significantly less income than he was earning at the 
 
         time of his injury.  In part, claimant's lack of motivation may 
 
         result from the lack of any substantial difference between his 
 
         income now and his income at the time he was injured.  Indeed, we 
 
         find claimant's testimony that he intends to remain retired 
 
         unless things get so bad off financially that he must return to 
 
         work most curious.  It appears to reflect a realization that some 
 
         work is possible for him, although he finds a return to work a 
 
         less desirable alternative at this point than remaining retired.  
 
         Given that, we cannot say that claimant's lack of income 
 
         generation at this time is wholly a result of his work injury.  
 
         It appears to result from a variety of factors, a number of which 
 
         are within claimant's control.  That fact makes the assessment of 
 
         claimant's loss of earning capacity more difficult.  
 
         Nevertheless, we note the claimant has a severe body as a whole 
 
         impairment; claimant is unable to easily perform physical tasks 
 
         that he could have performed prior to his injury.  On the other 
 
         hand, claimant has very real transferrable skills by way of his 
 
         knowledge and skill as a carpenter, farmer, antique buyer, and 
 
         furniture refinisher. Also, we recognize that claimant's early 
 
         retirement from ADM has cost him an actual loss in amount of 
 
         monthly retirement benefits had he been able to work to age 68 as 
 
         anticipated prior to injury. When all those factors are 
 
         considered, claimant appears to have sustained an industrial 
 
         disability of 35 percent of the body as a whole.  The parties 
 
         stipulated that claimant's commencement date for permanency is 
 
         April 11, 1989.  Defendants receive credit for permanency 
 
         benefits paid on and subsequent to that date.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 
              Claimant received an injury which arose out of and in the 
 
         course of his employment on September 30, 1987 when claimant fell 
 
         over the edge of a railroad car landing on the concrete on his 
 
         left face, elbow and hip.
 
         
 
              Claimant has a moderate to moderately severe permanent 
 
         partial impairment of the body as a whole on account of that 
 
         injury.
 
         
 
              Claimant is right-hand dominant.
 
         
 
              Claimant has severe limitations on the use of his left hand, 
 
         arm, and shoulder on account of that injury.
 
         
 
              Claimant has high blood pressure which manifested itself 
 
         after the injury and not prior to the injury.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant's high blood pressure can be controlled medically.
 
         
 
              Claimant continues to have minor problems with his left jaw 
 
         popping out on account of his work injury.
 
         
 
              Claimant was 62 years old when injured and was 65 years old 
 
         at time of hearing.
 
         
 
              Claimant has completed the eighth:grade.
 
         
 
              Claimant is articulate and intelligent.
 
         
 
              Claimant has prior work experience as a general laborer who 
 
         has also done machine operation and some record keeping.
 
         
 
              Claimant has prior work skills and knowledge as a carpenter, 
 
         farmer, antique buyer, and furniture refinisher.
 
         
 
              Claimant's employment with the employer was suspended after 
 
         two years as a result of his inability to work.
 
         
 
              The employer attempted to accommodate claimant by offering 
 
         him a forklift driver position which claimant declined as beyond 
 
         his post-injury physical abilities.
 
         
 
              Claimant likely could generate income with his skills as a 
 
         carpenter, farmer, antique buyer, or furniture refinisher by 
 
         utilizing his knowledge and seeking the assistance of another 
 
         person with the physical tasks involved.
 
         
 
              Jobs available for claimant now generally are substantially 
 
         lower paying jobs than that which claimant was performing when 
 
         injured.
 
         
 
              Claimant retired three years earlier than he had originally 
 
         planned on account of his work injury.
 
         
 
              Claimant's earlier retirement cost him approximately $60 per 
 
         month in retirement benefits received with a retirement at age 65 
 
         as opposed to a retirement at age 68.
 
         
 
              Claimant has spoken to individuals regarding jobs available, 
 
         but has not actually applied for jobs and has not sought 
 
         assistance from Job Service or Iowa State Vocational 
 
         Rehabilitation regarding returning to work.
 
         
 
              Claimant is comfortable in his retirement and is not well 
 
         motivated to return to work or to generate other income.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant is entitled to permanent partial disability 
 
         resulting from his injury of September 30, 1987 of 35 percent of 
 
         the body as a whole.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants pay claimant permanent partial disability 
 
         benefits for one hundred seventy-five (175) weeks at the 
 
         stipulated rate of three hundred seventy and 82/100 dollars 
 
         ($370.82) per week with benefits to commence on April 11, 1989.  
 
         Defendants receive credit for benefits previously paid.
 
         
 
              Defendants pay any accrued amounts in a lump sum and pay 
 
         interest pursuant to Iowa Code 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 this 
 
         agency pursuant to Division of Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 29th day of May, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            HELENJEAN WALLESER
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Mark A. Tarnow
 
         Attorney at Law
 
         1600 Fourth Avenue
 
         P.O. Box 4300
 
         Rock Island, Illinois  61204
 
         
 
         Mr. Thomas N. Kamp
 
         Attorney at Law
 
         600 Davenport Bank Building
 
         Davenport, Iowa  52801
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1803
 
                                            Filed May 29, 1990
 
                                            HELENJEAN WALLESER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RALPH H. FLOR,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                    File No. 864771
 
         ADM CLINTON, IOWA,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         OLD REPUBLIC INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1803
 
         
 
              Sixty-five-year-old injured worker, who retired at age 65 
 
         after sustaining a work injury at age 62 and who had a 30 percent 
 
         body as a whole disability, awarded 35 percent industrial 
 
         disability.  Claimant did not appear well motivated to work as 
 
         there was no substantial difference between his retirement income 
 
         and his pre-injury income.  Claimant did lose approximately 
 
         $60.00 per month in retirement fund benefits that he would have 
 
         received had he been able to continue working until age 68.  
 
         Claimant could not return to his former job, but did have work 
 
         experience which resulted in transferrable skills which he could 
 
         have used to generate income.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            BERTHA WOODRUFF,              :
 
                                          :
 
                 Claimant,                :      File Nos. 862183/852177
 
                                          :                864966/923653
 
            vs.                           :                923654
 
                                          :
 
            SEARS, ROEBUCK & CO.,         :
 
                                          :            A P P E A L
 
                 Employer,                :
 
                                          :          D E C I S I O N
 
            and                           :
 
                                          :
 
            ALLSTATE INSURANCE COMPANY,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed September 27, 1991 is affirmed and is adopted as the 
 
            final agency action in this case with the following 
 
            additional analysis:
 
            Claimant has appealed and raises as an issue on appeal the 
 
            extent of claimant's industrial disability resulting from 
 
            injuries on January 21, 1988 and August 1, 1989.  Defendants 
 
            did not cross-appeal and other issues that they attempt to 
 
            raise in their appeal brief will not be considered on 
 
            appeal.
 
            Claimant did not have surgery following her January 21, 1988 
 
            injury.  It was her recollection that she missed no work and 
 
            had no physical therapy because of this injury.  She has 
 
            impairment ratings of five and seven percent.  When all 
 
            factors of industrial disability are considered claimant 
 
            sustained a five percent industrial disability as a result 
 
            of her January 21, 1988 injury.
 
            Claimant did have surgery following her August 1, 1989 
 
            injury to her neck.  She attempted to return to work with 
 
            the same employer.  Her rate of earnings appear to be the 
 
            same after the injury as the rate before the injury.  Prior 
 
            to this injury, claimant worked approximately 20 hours a 
 
            week (See Joint Exhibit Q, #2, page 12 and #3, p. 66).  
 
            Donald Koontz, M.D., on March 4, 1991, opined that she could 
 
            work two days a week for four or five hours a day and 
 
            eventually work back into "full time."  Her prior job 
 
            appears to be within her restrictions.  Claimant's inability 
 
            to perform her prior job would seem to be more the result of 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            self-imposed limitations than medical restrictions.  When 
 
            all factors of industrial disability are considered claimant 
 
            sustained a 16 percent industrial disability as a result of 
 
            her August 1, 1989 injury.
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of March, 1992.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert E. McKinney
 
            Attorney at Law
 
            P.O. Box 209
 
            Waukee, Iowa 50263
 
            
 
            Mr. Jeff M. Margolin
 
            Attorney at Law
 
            2700 Grand Ave., Ste 111
 
            Des Moines, Iowa 50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            5-1800
 
            Filed March 24, 1992
 
            Byron K. Orton
 
            PJL
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            BERTHA WOODRUFF,              :
 
                                          :
 
                 Claimant,                :      File Nos. 862183/852177
 
                                          :                864966/923653
 
            vs.                           :                923654
 
                                          :
 
            SEARS, ROEBUCK & CO.,         :
 
                                          :            A P P E A L
 
                 Employer,                :
 
                                          :          D E C I S I O N
 
            and                           :
 
                                          :
 
            ALLSTATE INSURANCE COMPANY,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
            
 
            5-1800
 
            Claimant, in separate accidents, sustained five percent 
 
            industrial disability to her low back and 16 percent 
 
            impairment to her neck.  The evidence showed that, even 
 
            though claimant had some restrictions, her job did not 
 
            require physical activities which fell outside of the 
 
            limitations.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LINDA KAYE DAWDY,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  865000
 
            COASTAL BRAND MARKETING, INC. :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Linda 
 
            Kaye Dawdy as a result of injuries to her upper extremities 
 
            which allegedly occurred on August 24, 1987.  Defendants 
 
            admitted compensability for the right upper extremity injury 
 
            and paid weekly benefits and medical expenses.
 
            
 
                 The case was heard and fully submitted at Sioux City, 
 
            Iowa, on June 17, 1991.  The record in the proceeding 
 
            consists of joint exhibits A through O and testimony from 
 
            claimant, Jerry Wendt and William Harding.
 
            
 
                                      issues
 
            
 
                 The issues presented for determination are as follows:
 
            
 
                 The nature and the extent of permanent disability to 
 
            the left upper extremity or body as a whole and causal 
 
            connection.
 
            
 
                 The parties stipulate that claimant sustained 18 
 
            percent permanent partial disability to the right upper 
 
            extremity as a result of the August 24, 1987, injury.  
 
            Claimant contends entitlement to further disability as a 
 
            result of left upper extremity injuries.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received the 
 
            following findings of fact are made:
 
            
 
                 Claimant, Linda Kaye Dawdy, started work for defendants 
 
            in January 1987.  Her duties were to perform all work 
 
            associated with a deli.  Claimant carried buckets of ice to 
 
            a pop machine, cleaned, sliced meat and made deli 
 
            sandwiches.  Her position was described as full-time 
 
            employment.  
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 On August 24, 1987, claimant sustained a repetitive 
 
            motion injury to her right upper extremity as a result of 
 
            work performed for employer.  Claimant received medical 
 
            treatment and lost time as a result of the right upper 
 
            extremity injury.  The parties stipulated as to 
 
            compensability of this injury and no issues remain to be 
 
            decided with respect to the right upper extremity.
 
            
 
                 It is noted that a portion of claimant's testimony is 
 
            at variance with the documentary evidence offered as 
 
            exhibits A through O.  Almost four years have elapsed since 
 
            the injury occurred and memories are expected to 
 
            deteriorate.  To the extent that claimant's testimony 
 
            differs from the exhibits offered, said exhibits are given 
 
            greater weight.  Documents created close in time to the 
 
            events memorialized are inherently more credible than a 
 
            faded memory.
 
            
 
                 Claimant voluntarily left her job with employer in 
 
            September 1987 so as to accept a better paying position 
 
            (exhibit L, page 6).  She worked briefly at Dawdy Truck 
 
            Lines and Econo Lodge Motel and then in April 1988 had 
 
            surgery for the work-related right upper extremity injury.
 
            
 
                 Soon after the right arm surgery, claimant began 
 
            experiencing pain in the left upper extremity.  Claimant 
 
            attributed the left arm pain to the immobilization of the 
 
            right arm after surgery.  In other words, claimant was 
 
            forced to work the left arm harder due to the inability to 
 
            use the right arm after the April 1988 surgery.  Claimant 
 
            stated at hearing that the left arm pain was caused by 
 
            activities such as dusting, mowing the lawn, cleaning and 
 
            lifting pots and pans.  All such activities occurred after 
 
            the surgery was performed on the right arm. 
 
            
 
                 In December 1988, the treating surgeon rated her right 
 
            upper extremity impairment at 18 percent (ex. D, p. 4).
 
            
 
                 Claimant went on to work at several other jobs before 
 
            having right carpal tunnel surgery in January 1989.
 
            
 
                 At the time of hearing, claimant was unemployed and 
 
            continues to be plagued with persistent hand and arm pain.
 
            
 
                 The primary issue to be resolved is that of causal 
 
            connection of the August 24, 1987, injury to the left upper 
 
            extremity complaints.  Duane Nelson, M.D., was unable to 
 
            make such a nexus while Bernard Kratochvil, M.D., did find a 
 
            connection (ex. D, p. 5 & ex. J. p, 2).
 
            
 
                 The issue of causal connection is generally one for 
 
            experts to decide.  In this case, it is found that Dr. 
 
            Nelson's opinion on causation is entitled to greater weight.  
 
            It follows that claimant has failed to prove that the left 
 
            upper extremity complaints are causally connected to the 
 
            August 24, 1987, injury and work performed for employer.
 
            
 
                 Dr. Nelson's opinion on causation of the left upper 
 
            extremity problems is entitled to greater weight for several 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            reasons.  First, Dr. Nelson was the treating surgeon who 
 
            followed claimant's medical treatment over a long period of 
 
            time.  The record presented indicates that Dr. Kratochvil 
 
            saw claimant on only one occasion and is undoubtedly less 
 
            familiar with the overall medical history.  Furthermore, the 
 
            history of the onset of left arm complaints supports Dr. 
 
            Nelson's failure to find causation.  The uncontradicted 
 
            evidence clearly indicates that the left arm symptoms first 
 
            appeared many months after claimant terminated her 
 
            employment with employer.  Appearance of symptoms subsequent 
 
            to leaving employer's employ leads to the conclusions that 
 
            the left arm complaints are related to intervening factors 
 
            not associated with work performed for employer.  The fact 
 
            that claimant worked her left arm harder after the right arm 
 
            surgery does not establish a causal connection to work for 
 
            employer as claimant did not work for employer during the 
 
            period in question. 
 
            
 
                 The resolution of this issue is dispositive of all 
 
            other issues concerning the left upper extremity complaints.
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of August 24, 
 
            1987, is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id., at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 Having considered all of the evidence it is found that 
 
            claimant has failed to prove by a preponderance of the 
 
            evidence that the left upper extremity complaints are 
 
            causally connected to work performed for employer.  It 
 
            follows that claimant shall take nothing from this 
 
            proceeding with respect to the left upper extremity 
 
            complaints.  Claimant is entitled to benefits for the right 
 
            upper extremity injury as stipulated by the parties in the 
 
            prehearing report and order approving the same and 
 
            defendants are entitled to credit for benefits paid.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE, ORDERED:
 
            
 
                 That claimant take nothing from this proceeding with 
 
            respect to the claim for benefits stemming from left upper 
 
            extremity complaints.
 
            
 
                 That claimant is entitled to benefits as stipulated in 
 
            the prehearing report and order approving the same.
 
            
 
                 It is further ordered that defendants shall receive 
 
            credit for benefits previously paid.
 
            
 
                 It is further ordered that all accrued benefits are to 
 
            be paid in a lump sum.
 
            
 
                 It is further ordered that interest will accrue 
 
            pursuant to Iowa Code section 85.30. 
 
            
 
                 It is further ordered that the costs of this action are 
 
            assessed against defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 It is further ordered that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 
 
            
 
                 Signed and filed this ____ day of June, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MARLON D. MORMANN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Stanley E. Munger
 
            Attorney at Law
 
            303 Terra Centre
 
            600 4th Street
 
            Sioux City, Iowa  51101
 
            
 
            Mr. John G. Fletcher
 
            Mr. James H. Gilliam
 
            Attorneys at Law
 
            STE 1100 Two Ruan Center
 
            601 Locust St.
 
            Des Moines, Iowa  50309
 
            
 
            
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
                   5-1108
 
                   Filed June 26, 1991
 
                   Marlon D. Mormann
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         LINDA KAYE DAWDY,             :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :      File No.  865000
 
         COASTAL BRAND MARKETING, INC. :
 
                                       :  A R B I T R A T I O N
 
              Employer,                :
 
                                       :      D E C I S I O N
 
         and                           :
 
                                       :
 
         CIGNA,                        :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         5-1108
 
         Claimant's left arm complaints found not causally connected to 
 
         original right arm injury.  Treating doctor's opinion on 
 
         causation accepted as correct as compared to independent 
 
         evaluation.
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GLENDA VRBA,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 865030
 
            DONALDSON COMPANY,            :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            GROUP,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Glenda 
 
            Vrba against her employer based upon an injury that occurred 
 
            on September 28, 1987.  Claimant seeks compensation for 
 
            healing period and permanent partial disability.  One of the 
 
            issues is whether a causal connection exists between the 
 
            injury and any disability which has occurred.
 
            
 
                                 findings of fact
 
            
 
                 Having observed the appearance and demeanor of 
 
            witnesses as they testified and having considered their 
 
            testimony together with all the other evidence in the 
 
            record, the following findings of fact are made.
 
            
 
                 Glenda Vrba injured her back on September 28, 1987 
 
            while bending over the edge of a waist-high box of parts.  
 
            Since that time, she has experienced varying degrees of 
 
            discomfort in her lumbar spine and also, at times, pain in 
 
            her legs.  Vrba has been extensively tested, but the medical 
 
            practitioners have found no anatomical condition other than 
 
            partial sacralization of the L5 vertebra (exhibits 5, 6, 13, 
 
            14 and 15).  Joan M. Kepros, M.D., who treated claimant in 
 
            late 1987 and early 1988, released her to return to work 
 
            without restrictions.  Dr. Kepros felt that claimant has a 
 
            chronic pain syndrome (exhibit 7).
 
            
 
                 Anil K. Bouri, M.D., suspected that claimant's leg 
 
            symptoms were related to the low back injury (exhibit 10).  
 
            John S. Jacoby, M.D., recommended that claimant be treated 
 
            for chronic pain.  He also recommended that her work 
 
            assignments be such as to avoid stressful static bending or 
 
            poor posture and lifting in excess of 25 pounds.  He 
 
            recommended that she work while standing upright and that 
 
            any lifting be performed in the range of from knuckle to 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            chest height (exhibit 16).  John W. Hayden, M.D., felt that 
 
            claimant's current job as a punch press operator is 
 
            something she should be able to perform without problem, 
 
            other than for a little muscle tension (exhibit 22).
 
            
 
                 On July 8, 1989, it was reported that claimant's left 
 
            calf is one and one-half centimeters larger than her right 
 
            (exhibit 8).
 
            
 
                 Claimant was evaluated by Arnold E. Delbridge, M.D., 
 
            starting in 1989.  He has diagnosed her as having a 
 
            thoracolumbar strain/sprain with continued residual pain and 
 
            flare-ups.  Dr. Delbridge restricted her activities to 
 
            lifting no more than 20 pounds and avoidance of repeated 
 
            lifting from floor level, repeated twisting and repeated 
 
            turning.  He stated that she should avoid prolonged overhead 
 
            duty (exhibit 12).  In a report dated December 11, 1989, Dr. 
 
            Delbridge indicated that claimant's punch press operator job 
 
            conforms to his restrictions.  Dr. Delbridge expressed the 
 
            opinion that claimant's condition has deteriorated during 
 
            the preceding year and that he expects it to deteriorate 
 
            further.  His prognosis was quite guarded with regard to 
 
            whether or not she would be able to continue with her 
 
            present employment (Delbridge deposition, pages 11-17 and 
 
            25).  Dr. Delbridge related claimant's current back and leg 
 
            pain to the September 28, 1987 injury (exhibit 12; Delbridge 
 
            deposition, page 10).
 
            
 
                 Since Drs. Delbridge and Bouri have expressed the 
 
            opinion that a causal connection exists between the 
 
            September 28, 1987 low back injury and claimant's continuing 
 
            leg and low back symptoms, it is found that their opinions 
 
            are correct and that the September 28, 1987 injury is a 
 
            substantial factor in producing claimant's current back and 
 
            leg difficulties.  Their opinions are fully consistent with 
 
            the testimony from claimant and her husband regarding her 
 
            lack of any prior back problems and her lack of any previous 
 
            physical limitations.
 
            
 
                 Glenda Vrba now experiences continuing pain in her low 
 
            back.  It has severely limited her ability to engage in 
 
            physical activities.  Claimant and her husband are found to 
 
            be fully credible witnesses, as are Wayne Carolin and Joyce 
 
            Grinhaug.  Claimant's absences from work on April 28, 1988, 
 
            January 25, 1989, July 5, 1989, July 7, 1989, October 6, 
 
            1989 and October 31, 1989 are all corroborated by medical 
 
            evidence (exhibits 5, 9, 12, 14 and 15).  There is no 
 
            evidence in the record to establish the amount which 
 
            claimant earned on the four of those six days during which 
 
            she was absent from work for only part of the day.
 
            
 
                 The employer has work available for claimant which she 
 
            is capable of performing, albeit with a considerable degree 
 
            of discomfort.  She experiences discomfort whether the is 
 
            working or not.  She is no longer able to perform many of 
 
            the positions which she had previously performed during her 
 
            years of employment with Donaldson Company.  It is possible 
 
            that there are a few other jobs in the plant which would 
 
            comply with the restrictions imposed by the physicians.  It 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            is noted that there is no great variance between the 
 
            restrictions recommended by Drs. Delbridge and Jacoby and 
 
            their assessments are accepted as being correct.
 
            
 
                 Dr. Delbridge has rated claimant as having permanent 
 
            impairment.  The fact that the available diagnostic tests 
 
            have not identified the source of claimant's difficulties 
 
            does not conclusively establish that she has no 
 
            difficulties.  It can also establish that medical science is 
 
            not capable of identifying all ailments which impair a 
 
            person's ability to function.  When such occurs, it is quite 
 
            common for the medical practitioners to characterize the 
 
            situation as one in which there is a chronic pain syndrome 
 
            or some similar type of condition.  In view of the fact that 
 
            physicians have recommended restrictions, it is found that 
 
            claimant does have some permanent impairment which afflicts 
 
            her as a result of the September 28, 1987 injury.
 
            
 
                 While claimant is a high school graduate and has a 
 
            secretarial background, she has been in manufacturing work 
 
            for approximately the last 20 years and her secretarial 
 
            skills are likely quite outdated.  Her request for a job in 
 
            the Donaldson Company office was denied.  Claimant's present 
 
            job is one which allows her to sit or stand as she deems 
 
            appropriate.  It requires repetitive movements while 
 
            handling very light weights (exhibit 21).  The employer has 
 
            insulated claimant from experiencing the economic losses 
 
            which would most likely occur if she were forced to seek 
 
            other employment with a different employer.  Glenda Vrba has 
 
            experienced a ten percent loss of earning capacity as a 
 
            result of the September 28, 1987 injury.
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of September 
 
            28, 1987 is causally related to the disability on which she 
 
            now bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 
 
            133 N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 
 
            296, 18 N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Since Drs. Bouri and Delbridge agree as to the 
 
            existence of a causal connection and there is no contrary 
 
            evidence in the record, either from medical practitioners or 
 
            from lay evidence, it is concluded that the injury of 
 
            September 28, 1987 is a proximate cause of the difficulties 
 
            claimant currently experiences with her low back and legs.
 
            
 
                 Claimant has an impairment to the body as a whole; 
 
            therefore an industrial disability has been sustained.  
 
            Industrial disability was defined in Diederich v. Tri-City 
 
            Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) 
 
            as follows: "It is therefore plain that the legislature 
 
            intended the term `disability' to mean `industrial 
 
            disability' or loss of earning capacity and not a mere 
 
            `functional disability' to be computed in the terms of 
 
            percentages of the total physical and mental ability of a 
 
            normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
            (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 
 
            N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. 
 
            Harrison County, 34th Biennial Report, 218 (1979); 2 Larson 
 
            Workmen's Compensation Law, sections 57.21 and 57.31.
 
            
 
                 The most notable factors of industrial disability in 
 
            this case are the medical restrictions, the lack of a 
 
            medically identified physiological abnormality and the fact 
 
            that claimant has not experienced a loss of actual earnings.  
 
            Industrial disability is not measured by actual earnings in 
 
            any particular job, but rather by a measure of overall 
 
            earning capacity.  Actual earnings are strong evidence of 
 
            earning capacity, though not exhaustive on the issue.  
 
            Claimant has a ten percent industrial disability which 
 
            entitles her to recover 50 weeks of compensation for 
 
            permanent partial disability under the provisions of Iowa 
 
            Code section 85.34(2)(u).
 
            
 
                 Claimant was absent from work and paid healing period 
 
            compensation from September 29, 1987 until November 30, 
 
            1987, except for a few days when she made an unsuccessful 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            attempt to resume working.  It is therefore concluded that 
 
            her entitlement to compensation for permanent partial 
 
            disability is payable commencing December 1, 1987.
 
            
 
                 Healing period entitlement under Iowa Code section 
 
            85.34(1) is largely an issue to be determined by medical 
 
            practitioners.  In this case, there is no medical opinion 
 
            regarding whether or not claimant was physically capable of 
 
            performing the normal duties of her employment on the times 
 
            that she was absent from work for which she seeks healing 
 
            period or temporary partial disability compensation.  The 
 
            records do show, however, that she was absent on six 
 
            different occasions for the purpose of obtaining medical 
 
            treatment.  She is therefore entitled to recover benefits 
 
            for those six occasions.  Claimant is entitled to recover 
 
            one-seventh week of compensation for January 25, 1989 and 
 
            one-seventh week of compensation for October 6, 1989.  She 
 
            is entitled to recover temporary partial disability 
 
            compensation for her absences on April 28, 1988, July 5, 
 
            1989, July 7, 1989, and October 31, 1989, but there is no 
 
            evidence in the record from which a computation of her 
 
            entitlement can be made.  While claimant undoubtedly was in 
 
            pain or seeing doctors on the other occasions when she was 
 
            absent from work, there is no medical confirmation in the 
 
            record to show that she was disabled from working on those 
 
            occasions.  The only additional healing period award which 
 
            can be made is for the two days previously noted.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay Glenda Vrba 
 
            fifty (50) weeks of compensation for permanent partial 
 
            disability at the stipulated rate of two hundred ninety-four 
 
            and 78/100 dollars ($294.78) per week payable commencing 
 
            December 1, 1987.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay Glenda Vrba 
 
            one-seventh (1/7) week of compensation for healing period 
 
            [forty-two and 11/100 dollars ($42.11)] payable on January 
 
            25, 1989 and a like sum for healing period payable on 
 
            October 6, 1989.
 
            
 
                 IT IS FURTHER ORDERED that since all healing period and 
 
            permanent partial disability compensation which has been 
 
            awarded is accrued, past due and owing, the same shall be 
 
            paid to claimant in a lump sum together with interest 
 
            computed from the date each payment came due until the date 
 
            of actual payment pursuant to Iowa Code section 85.30.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against defendants pursuant to Division of 
 
            Industrial Services Rule 343-4.33.
 
            
 
                 IT IS FURTHER ORDERED that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            Division of Industrial Services Rule 343-3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert C. Andres
 
            Attorney at Law
 
            First National Building, Sixth Floor
 
            P.O. Box 2634
 
            Waterloo, Iowa  50704
 
            
 
            Mr. Kevin R. Rogers
 
            Attorney at Law
 
            528 West Fourth Street
 
            P.O. Box 1200
 
            Waterloo, Iowa  50704
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1402.30, 5-1402.40
 
                                               5-1803
 
                                               Filed July 20, 1990
 
                                               MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GLENDA VRBA,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 865030
 
            DONALDSON COMPANY,            :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            GROUP,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            5-1402.30, 5-1402.40, 5-1803
 
            Claimant proved entitlement to 10% permanent partial 
 
            disability despite the lack of showing of any reduction in 
 
            actual earnings.
 
            
 
 
         
 
 
 
 
 
         before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         MAURICE WISECUP,              :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :       File No. 865047
 
         RTC TRANSPORTATION,           :
 
                                       :         A P P E A L
 
              Employer,                :
 
                                       :       D E C I S I O N
 
         CRUM & FORSTER INSURANCE,     :
 
                                       :
 
              Insurance Carrier,       :
 
                                       :
 
         and                           :
 
                                       :
 
         SECOND INJURY FUND OF IOWA,   :
 
                                       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         June 25, 1991, is affirmed and is adopted as the final agency 
 
         action in this case. 
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of December, 1991.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                        INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Donald G. Beattie
 
         Attorney at Law
 
         204 8th Street  SE
 
         Altoona  IA  50009
 
         
 
         Mr. Harry W. Dahl
 
         Attorney at Law
 
         974 73rd Street Suite 16
 
         Des Moines  IA  50312
 
         
 
         Mr. Greg Knoploh
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Des Moines  IA  50319
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed December 16, 1991
 
            BYRON K. ORTON
 
            DRR
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MAURICE WISECUP,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 865047
 
            RTC TRANSPORTATION,           :
 
                                          :         A P P E A L
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            CRUM & FORSTER INSURANCE,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed June 25, 
 
            1991.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           3202
 
                           Filed June 25, 1991
 
                           DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            MAURICE WISECUP,    :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :         File No. 865047
 
                      :
 
            RTC TRANSPORTATION, :      A R B I T R A T I O N
 
                      :
 
                 Employer, :         D E C I S I O N
 
                      :
 
            and       :
 
                      :
 
            CRUM & FORSTER COMMERCIAL     :
 
            INS.,     :
 
                      :
 
                 Insurance Carrier,  :
 
                      :
 
            and       :
 
                      :
 
            SECOND INJURY FUND OF IOWA,   :
 
                      :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            3202
 
            Second Injury Fund benefits were denied where claimant 
 
            failed to prove a "previous" loss, although he subsequently 
 
            aggravated the claimed previous injury and underwent 
 
            surgery.
 
            
 
 
            
 
            
 
            
 
            
 
                                    2901, 2906, 1108.50, 1401,
 
                                    1402.40, 2209, 5-1802, 1803.1, 
 
                                    1803, 2500, 2700, 3001, 3002, 3003
 
                                    Filed September 29, 1994
 
                                    Walter R. McManus, Jr.
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            JERRY L. PACK, 
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                            File No. 865057
 
            FIRESTONE TIRE AND RUBBER     
 
            COMPANY,  
 
                                         A R B I T R A T I O N
 
                 Employer, 
 
                                            D E C I S I O N
 
            and       
 
                      
 
            CIGNA INSURANCE COMPANIES,    
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            2901, 2906
 
            
 
                 The hearing was adjourned to the following day in order 
 
            to permit the attorneys additional time to attempt to reduce 
 
            the number of exhibits to the number specified in the 
 
            hearing assignment order.
 
            
 
            1108.50, 1401, 1402.40, 2209
 
            
 
                 Claimant started to work for employer while still in 
 
            high school and worked for employer, primarily as a tire 
 
            builder, for 33 years.  Employer admitted injury but 
 
            contended that the disability extended only to the massive 
 
            rotator cuff tears to the right shoulder.  The decision 
 
            determined that employer was also liable for the massive 
 
            rotator tears to the left shoulder, even though they were 
 
            diagnosed and treated some three years after the original 
 
            injury date.
 
            
 
                 The deputy's determination was based upon the 
 
            unquivocal causal connection statement of the treating 
 
            orthopedic surgeon.  The plant doctor indicated the left 
 
            shoulder was not caused by claimant's employment but gave no 
 
            reasons for his determination.  The treating orthopedic 
 
            surgeon based his decision on several years of work as a 
 
            tire builder.
 
            
 
                 The treating orthopedic surgeon stated that the right 
 
            shoulder was a specific traumatic injury but that the left 
 

 
            
 
            Page   2
 
            
 
            
 
            shoulder was an attenuation or attritional injury which was 
 
            interpreted to mean a cumulative injury.  There was also 
 
            evidence in the medical records that indicated the right 
 
            shoulder injury was also a cumulative injury.  However, the 
 
            deputy determined it was a specific traumatic injury because 
 
            this determination was supported by the testimony of the 
 
            treating orthopedic surgeon, who made  a specific causal 
 
            connection statement on this point.
 
            
 
                 It was determined that the cumulative disability 
 
            occurred on the same date as the specific trauma injury 
 
            because that was the last day claimant was able to work 
 
            without restrictions that basically prohibited him from 
 
            further work for employer. 
 
            
 
            5-1802
 
            
 
                 Claimant was awarded healing period benefits for the 
 
            period(s) that defendants had already paid (to which the 
 
            parties agreed) and in addition the periods of normal 
 
            recovery specified by the treating orthopedic surgeon.  
 
            These periods were nine months for the right hemiarthoplasty 
 
            and six months for the left decompression.
 
            
 
            1803.1
 
            
 
                 The surgery to the right shoulder clearly involved 
 
            parts of the body as a whole which was sufficient to 
 
            constitute both impairment and disability to the body as a 
 
            whole.  Surgical reports established that the affected body 
 
            parts were primarily on the body side of the gleno-humeral 
 
            joint, with the exception of the humerus and the humeral 
 
            head.
 
            
 
                 The decision reviews, Dailey v. Pooley, Alm v. Morris 
 
            Barrick Cattle Company and Lauhoff Grain v. McIntosh.  It 
 
            also reviews several industrial commissioner decisions and 
 
            deputy decisions in accord generally with the fact that a 
 
            shoulder injury is an injury to the body as a whole.  
 
            Industrial commissioner decisions reviewed were Johnson, 
 
            Prewitt, Haffner, Cluney, Tomkins, Nazarenus, Godwin, and 
 
            Fullerton.  
 
            
 
                 Deputy decisions reviewed which were in accord were 
 
            Pierson, Tarr, Payton, Thomas, Patterson, and Weavill.
 
            
 
                 The decision covers how Johnson explained Prewitt, and 
 
            elaborates that the industrial commissioner's statutory task 
 
            is not only to find impairment but more importantly to find 
 
            permanent disability, with cites to the code and AMA Guides.  
 
            
 
                 The dichotomy between the use of medical term, upper 
 
            extremity, as found in Gray's Anatomy and the AMA Guides, 
 
            and the legal workers' compensation term, arm, found in the 
 
            workers compensation law Iowa Code section 85.34(2)(m) is 
 
            explained.
 
            
 
                 An analysis of the treating orthopedic surgeons 
 
            testimony clearly illustrates how physicians sometimes 
 
            erroneously believe that the upper extremity is equated to 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            the arm.
 
            
 
                 It was determined that the injury, the impairment, the 
 
            derangement, the loss and loss of use, and the permanent 
 
            disability was in the shoulder and more specifically parts 
 
            of the body which are defined in workers' compensation law 
 
            as the body as a whole.
 
            
 
            1803
 
            
 
                 It was determined that claimant was entitled to 85 
 
            percent industrial disability to the body as a whole.
 
            
 
                 Claimant had three surgeries on the right shoulder and 
 
            one surgery on the left shoulder and a second surgery for 
 
            the left shoulder had been scheduled at the time of the 
 
            hearing.
 
            
 
                 The only impairment rating, by the treating orthopedic 
 
            surgeon, converted and combined to 28 percent of the body as 
 
            a whole.
 
            
 
                 Claimant was a career, life-time, employee of employer 
 
            with no experience other than tire building from which he 
 
            was now foreclosed.
 
            
 
                 Restrictions were variously (1) from very heavy and 
 
            heavy work to light and sedentary work, (2) no repetitive 
 
            use of the upper extremities, (3) no work above shoulder 
 
            height, (4) no work with the upper extremities more than one 
 
            foot away from the body, (5) no pounding, shoveling, axing 
 
            or vibratory work because he might shake loose his 
 
            prosthesis, (6) claimant was not to carry or lift any 
 
            weight, (7) he should not bend or reach at arms length or 
 
            lift anything from the floor, and (8) no above ground work.
 
            
 
                 Both claimant's and defendants' vocational 
 
            rehabilitation witnesses determined that claimant had lost 
 
            75 percent access to the competitive employment market, that 
 
            he was now limited to unskilled, entry level, minimum wage 
 
            types of jobs and that within any job group of job category 
 
            claimant only qualified for some of the jobs.  Nevertheless, 
 
            both rehabilitation witnesses testified that there was some 
 
            work that claimant could do.  Claimant was not odd-lot 
 
            because he had made no search for work of any kind.  He was 
 
            not otherwise permanently and totally disabled because the 
 
            evidence was that there was work that he could do.
 
            
 
                 An estimated calculation showed that it was impossible 
 
            to award claimant his estimated actual wage loss under the 
 
            workers' compensation law.  A union representative testified 
 
            that claimant would be earning up to $37 per hour if he were 
 
            still working whereas he was earning up to $23 per hour at 
 
            the time of this injury.
 
            
 
                 Claimant lost substantial employee fringe benefits.
 
            
 
                 Employer made no attempt to accommodate claimant's 
 
            injury until one day prior to hearing, when employer found 
 
            one job that he could have done if it were accommodated.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
                 Claimant was age 52 at the time of the injury and age 
 
            57 at the time of the hearing.  He had high school 
 
            education.  It was determined that it was not likely that he 
 
            was retrainable either academically or through on-the-job 
 
            training.
 
            
 
            
 
            2500, 2700
 
            
 
                 It was determined that the injury was the cause of the 
 
            left shoulder disability and therefore defendants' were 
 
            liable for the medical expenses for this care and treatment 
 
            as well as the medical mileage for it.  The same carrier was 
 
            the group medical carrier and the workers' compensation 
 
            carrier and there was no explanation why they did not pay 
 
            under either policy.
 
            
 
            3001, 3002, 3003
 
            
 
                 Claimant was an hourly and output rate employee.  
 
            Therefore his rate was determined by using the introductory 
 
            paragraph of Iowa Code section 85.36 and section 86.36(6) 
 
            following the industrial commissioner's precedent 
 
            established in Lewis v. Aalfs Mfg. Co., I Iowa Industrial 
 
            Commissioner Reports 206 Appeal decision (1980) and followed 
 
            in Schotanus v. Command Hydraulics, I Iowa Industrial 
 
            Commissioner Reports 294 (Arbitration Decision 1981) and 
 
            followed in numerous cases thereafter.  This standard is 
 
            also published in Lawyer and Higgs.  
 
            
 
                 Claimant typically worked either a 40-hour week or a 
 
            48-hour week.  Vacation weeks, a plant shut down week, weeks 
 
            in which claimant was sick, and one 19 hour week were 
 
            skipped because they were not representative of the earnings 
 
            to which the employee would have been entitled had he worked 
 
            the customary hours for the full pay period in which the 
 
            employee was injured.  A 38.5 hour week was included because 
 
            it reasonably approximated a 40-hour week sufficiently to be 
 
            considered representative.
 
            
 
                 The rate calculated by the deputy was the same as the 
 
            rate calculated by claimant even though one different week 
 
            was used.  The deputy determined the proper rate to be 
 
            $518.24.  Defendants submitted a calculation at the time of 
 
            hearing which yielded a rate of $477.71.  However, prior to 
 
            hearing defendants had only paid claimant at the rate of 
 
            $413.14, which is an underpayment of $105.11 per week.  
 
            Defendants made no explanation for this gross underpayment.
 
            
 
                 This case was distinguished from Davis v. Weitz Co., 
 
            file number 898933, Appeal Decision November 25, 1992, in 
 
            which a district court judge reversed the commissioner when 
 
            the commissioner used only 40-hour weeks to determine the 
 
            rate because section 85.36(6) is plain and unambiguous.  The 
 
            district court judge in Davis said the method to determine 
 
            the rate for an hourly employee is to (arbitrarily) use the 
 
            last 13 weeks.  The district court judge in the Davis case 
 
            found that such an application of section 86.36(6) did not 
 
            result in an injustice, absurdity or contradiction of what 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            he determined to be the proper result in that case.
 
            
 
                 In this case, it is determined that a literal, 
 
            arbitrary application of section 86.36(6) is ambiguous when 
 
            that action is considered with the introductory paragraph of 
 
            section 86.36 and that it does bring about an unjust, 
 
            absurd, contradictory result.  This case is further 
 
            distinguished from Davis for the reason that (1) not only 
 
            40-hour weeks were used and (2) also because Davis was a 
 
            construction worker and they do work irregular hours, days 
 
            and weeks but claimant in this case is a factory worker and 
 
            he regularly worked a 40 or 48-hour week under normal 
 
            circumstances.
 
            
 
                 It was further commented that there are 101 district 
 
            court judges and each one of them could have decided this 
 
            issue in a different manner.  Therefore, a district court 
 
            decision only binds the industrial commissioner on the 
 
            particular case involved but does not change the precedent 
 
            or precedents established by the industrial commissioner, 
 
            who must adhere to stable precedents in order that litigants 
 
            can have a predictable manner in which to dispose of 
 
            litigation effectively.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROBERT KONRADI,                                File No. 865300
 
         
 
              Claimant,                              A R B I T R A T I O 
 
         N
 
         
 
         vs.                                            D E C I S I O N
 
         
 
         ROGER POMRENKE, d/b/a                             F I L E D
 
          R. P. EXPRESS, INC.,
 
                                                          MAY 25 1989
 
              Uninsured Employer,
 
              Defendant.                              INDUSTRIAL SERVICES
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by claimant 
 
         Robert Konradi against uninsured defendant employer Roger 
 
         Pomrenke to recover benefits under the Iowa Workers' Compensation 
 
         Act as the result of an alleged injury sustained on June 11, 
 
         1987.  This matter came on for hearing before the undersigned 
 
         deputy industrial commissioner in Storm Lake, Iowa, on March 15, 
 
         1989. The matter was considered fully submitted at the close of 
 
         hearing.
 
         
 
              The record in this proceeding consists of the testimony of 
 
         claimant and Violet Konradi, along with claimant's exhibits 1 
 
         through 4.  Defendant's exhibits 1 and 2 were offered, but not 
 
         accepted; by order of April 27, 1988, the record was closed to 
 
         further evidence or activity by defendant.
 
         
 
                                   ISSUES
 
         
 
              Pursuant to the prehearing report submitted by the parties 
 
         and approved by the deputy, the following issues have been 
 
         stipulated:  That if claimant's injury be found to be a 
 
         work-related cause of permanent disability, it is an industrial 
 
         disability to the body as a whole; that in the event of an award 
 
         of weekly benefits, the rate of compensation is $192.11; that the 
 
         provider of medical services would testify that the fees were 
 
         reasonable and that the treatment was reasonable and necessary; 
 
         that defendant has not voluntarily paid compensation prior to 
 
         hearing.
 
         
 
              Issues presented for resolution include:  Whether an 
 
         employer-employee relationship existed between claimant and 
 
         defendant at the time of the alleged injury; whether claimant 
 
         sustained an injury on June 11, 1987, arising out of and in the 
 
         course of the claimed employment; whether the alleged injury 
 
         caused temporary or permanent disability; the extent of 
 
         claimant's entitlement to compensation for temporary total 
 
         disability or healing period benefits; the extent of claimant's 
 
                                                
 
                                                         
 
         entitlement to compensation for permanent disability and the 
 
         commencement date thereof; the extent of claimant's entitlement 
 
         to medical benefits; taxation of costs.
 
         
 
                           REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified that he first came in contact with 
 
         defendant Roger Pomrenke through the offices of the Iowa 
 
         Department of Job Service in December, 1986.  He stated that he 
 
         was hired as a truck driver to make a run to the state of 
 
         Colorado.  Claimant was again hired to make several trips to 
 
         Colorado in January, 1987.  Claimant eventually asked Mr. 
 
         Pomrenke if he could have a steady job, and was answered in the 
 
         affirmative.
 
         
 
              Claimant testified that it was originally agreed that taxes 
 
         and Social Security would be withheld from his check by Mr. 
 
         Pomrenke, and that this was done for his first check.  However, 
 
         claimant was simply paid in a lump sum by check on subsequent 
 
         occasions until June 11, 1987.
 
         
 
              Claimant testified that he was employed as a second man 
 
         driving a semi-tractor truck for the delivery of eggs.  The truck 
 
         lacked an Interstate Commerce Commission placard and was labeled 
 
         on the side as:  RPX; Roger & Cathy Pomrenke.  Claimant testified 
 
         that while the trailer was owned by an operation known as Farmegg 
 
         Company, he personally saw the truck registration and saw that 
 
         the truck was registered to Roger Pomrenke.
 
         
 
              Claimant testified that he was paid by check; sometimes by 
 
         personal check from Roger Pomrenke, and sometimes by checks 
 
         issued by RPX (presumably R. P. Express, Inc.).  Further, 
 
         claimant testified that he was aware of no distinction whatsoever 
 
         between Roger Pomrenke and RPX as a corporate entity.
 
         
 
              Claimant testified that he suffered an injury while driving 
 
         the truck on June 11, 1987.  Due to an accidental failure to lock 
 
         his tandems with a pin device, the tractor and trailer overturned 
 
         when he attempted to make a turn.  Claimant testified that he 
 
         began suffering pain to his lower back that evening and saw a 
 
         physician on the following day.  Prior to that, claimant 
 
         indicated that his health had been good and that he had suffered 
 
         no prior back problems.
 
         
 
              Claimant testified that when he advised Mr. Pomrenke of the 
 
         injury, Pomrenke stated that he had workers' compensation 
 
         insurance, but that it was "$1,000 deductible."
 
         
 
              Claimant testified that his back condition continued to 
 
         worsen and that he has imposed certain restrictions as to his own 
 
         activities, such as truck driving, car driving of more than one 
 
         to two hours at a time, steady lifting over five to ten pounds, 
 
         or accepting any employment (because of his back problems, but 
 
         also due to heart disease, arthritis and diabetes).  Claimant has 
 
         not worked since this injury.
 
                                                
 
                                                         
 
         
 
              Claimant described his present back symptoms as numbness 
 
         with pain in the hips and lower back.  He indicated that he has 
 
         problems dealing with stairs or curbs.  Claimant has no plans to 
 
         return to employment, although he might attempt doing craft work 
 
         for an employer such as the Easter Seals Society.
 
         
 
              Violet Konradi testified that she has been married to 
 
         claimant for 36 years and that claimant had no back or other 
 
         health problems before his injury.  She stated that claimant now 
 
         complains of pain, walks badly and that his knees give out.  She 
 
         agreed that claimant has not worked since the truck accident.
 
         
 
              Ms. Konradi testified further that claimant is unable even 
 
         to push a vacuum cleaner by way of helping at home, and that he 
 
         often lies on the floor with his feet in the air to alleviate 
 
         pain. Further, she testified that claimant spends most of his 
 
         time just sitting and that he continues getting heat treatments.  
 
         She stated that claimant's injury of June 11, 1987 is the only 
 
         disabling injury he has suffered.
 
         
 
              Notes of the Buena Vista Clinic, P.C., dated June 12, 1987, 
 
         show that claimant presented complaining of neck and back pain 
 
         with some "pins and needle sensation" on the left side and into 
 
         the buttock.  The immediate impression of "DVG" (from exhibit 3, 
 
         apparently David Van Gorp, M.D.), was of low back and cervical 
 
         strain.  Dr. Van Gorp noted that x-rays were taken and showed 
 
         some changes "on the cervical spine which may be old.  He also 
 
         has degenerative changes."
 
         
 
              Notes of "JEM" (James E. McCabe, M.D.), of June 15, 1987, 
 
         reported x-rays showing a lot of degenerative changes in the neck 
 
         and lower back and old compression fracture to the anterior 
 
         aspect of C6 with osteophytes.  Pain was not severe.  Dr. 
 
         McCabe's notes of July 9, 1987 and July 23, 1987 show an 
 
         impression of mild lumbar strain with some mild degenerative 
 
         changes on x-rays.
 
         
 
              Clinical findings of x-rays taken June 12, 1987 were 
 
         summarized as early degenerative changes in the articulating 
 
         facets of the lower lumbar spine.  Also, highly suspicious, 
 
         probably old mild compression fracture to the anterior aspect of 
 
         the body of C6 with marked osteophyte at the anterior aspect 
 
         between C5-6 in conjunction with disc degenerative changes of the 
 
         lower cervical spine.
 
         
 
              Claimant was also seen by Mark Wheeler, M.D.  Dr. Wheeler's 
 
         report of September 28, 1987 indicated an impression of multiple 
 
         level disc degeneration lumbar spine with early degenerative 
 
         changes.  Dr. Wheeler felt that claimant's condition was likely 
 
         to be permanent,and recommended that claimant seek other 
 
         employment of a more sedentary nature.  Claimant was released on 
 
         a "prn" basis.
 
         
 
              In a letter of August 2, 1988, Dr. McCabe noted claimant's 
 
                                                
 
                                                         
 
         diagnosis of significant lower back pain secondary to 
 
         degenerative arthritis and significant lumbar.arthritis with disc 
 
         disease.  It was his feel that due to claimant's physical 
 
         condition, he was presently disabled from any kind of hard labor 
 
         and that he was totally disabled.
 
         
 
              The record does not indicate that any physician has 
 
         expressed an opinion as to whether claimant's disabilities are 
 
         causally connected to the work injury.  Also, there is no 
 
         indication that claimant has been given any more specific 
 
         restrictions other than advice to discontinue hard physical 
 
         labor.
 
         
 
                         APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant credibly testified that he was hired personally by 
 
         Roger Pomrenke and that he was paid both on Mr. Pomrenke's 
 
         personal checks, as well as the checks of R. P. Express, Inc. 
 
         Claimant's 1987 United States Income Tax Return shows that 
 
         neither Mr. Pomrenke nor R. P. Express issued a W-2 form.  
 
         Claimant drove a truck registered to Mr. Pomrenke personally.  
 
         The truck was labeled with the names of both the corporation and 
 
         Mr. Pomrenke and presumably his wife or daughter.  Claimant also 
 
         credibly testified that he knew of no distinction whatsoever 
 
         between Mr. Pomrenke and R. P. Express.
 
 
 
                       
 
                                                         
 
         
 
              The record evidence establishes an employment relationship 
 
         between claimant and Roger Pomrenke.  This issue must be resolved 
 
         in claimant's favor.  As claimant was clearly operating a truck 
 
         as a part of his employment responsibilities at the time of the 
 
         injury, he has established an injury arising out of and in the 
 
         course of his employment relationship with Roger Pomrenke. 
 
         McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976).
 
         
 
              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 claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of June 11, 1987 is causally related 
 
         to the disability on which he now bases his claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
         insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at,907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756 (1956).  
 
         If the claimant had a preexisting condition or disability that is 
 
         aggravated, accelerated, worsened or lighted up so that it 
 
         results in disability, claimant is entitled to recover.  Nicks v 
 
         Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962).
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960).
 
         
 
              Claimant has sustained medical expenses by reason of his 
 
         work injury.  However, the evidence fails utterly to establish 
 
         any causal connection between the work injury and his claimed 
 
         temporary and permanent disability.  As has been seen, this 
 
                                                
 
                                                         
 
         question is essentially within the domain of expert testimony. 
 
         Although claimant has been treated by at least three physicians, 
 
         no evidence was introduced showing any causal connection by way 
 
         of expert testimony.  While various physicians may have 
 
         recommended that claimant leave the trucking industry, there is 
 
         no way to determine whether this is because of claimant's injury, 
 
         or simply because of his preexisting degenerative changes and 
 
         previous compression fracture.
 
         
 
              It is therefore held that claimant has failed to meet his 
 
         burden of proof in establishing that his work injury caused 
 
         either temporary or permanent disability.
 
         
 
              On the other hand, claimant has established that certain 
 
         medical expenses were directly related to medical care sought 
 
         because of the work injury.  Medical expenses are set forth in 
 
         plaintiff's exhibit 2.
 
         
 
              The first bill in that exhibit is from the University of 
 
         Iowa Hospitals and Clinics.  As has been seen, claimant also 
 
         suffers from diabetes and a heart condition.  The charges set 
 
         forth in the statement from the University of Iowa Hospitals and 
 
         Clinics are not of sufficient specificity to determine that any 
 
         of those charges related to or were caused by the work injury.  
 
         Rather, it appears that these charges relate to claimant's 
 
         cardiac problems.
 
         
 
              The second bill is in the sum of $89.00 from American 
 
         Prosthetics, Inc.  This was for a lumbar brace obtained on 
 
         September 28, 1987.  However, it is impossible to determine 
 
         whether the brace would have been necessary because of the work 
 
         injury, as opposed to claimant's preexisting condition.  
 
         Therefore, this charge must also be disallowed.
 
         
 
              Certain charges from June 1, 1987 (predating the injury) 
 
         through October 20, 1987, accrued from Bedel's Pharmacy.  The 
 
         notes of Buena Vista Clinic show that the prescription for Xanax 
 
         of July 27,1987 was prescribed, apparently in connection with the 
 
         work injury.  Therefore, that statement in the sum of $22.95 
 
         shall be allowed.
 
         
 
              Claimant underwent physical therapy at Buena Vista County 
 
         Hospital pursuant to medical prescription.  Those billings in the 
 
         sums of $328.00 and $200.00 shall be allowed.  However, the 
 
         billing of October 4, 1987 of $128.00 for x-rays related to 
 
         charges described as esophagus and gastroduography; as there is 
 
         no showing that this was caused by the work injury, the same 
 
         shall be disallowed.
 
         
 
              Dr. Wheeler's bill in the sum of $85.00 was caused by the 
 
         work injury and shall be awarded claimant.
 
         
 
              Dr. Rice's radiology charges do not appear to be related to 
 
         the work injury and are disallowed.
 
         
 
                                                
 
                                                         
 
              Charges of the Buena Vista Clinic, P.C., from June 12 
 
         through September 30, 1987, shall be allowed, except for the 
 
         hypertension office call in the sum of $20.00, the two billing 
 
         service fees in the sum of $2.00, the degenerative joint office 
 
         call in the sum of $20.00 and the chest pain fee of $44.00, none 
 
         of which have been shown to be related to the work injury.
 
         
 
              Claimant testified that Dr. Wheeler and American Prosthetics 
 
         have been paid, while defendant has paid none of the medical 
 
         expenses.  Claimant is not entitled to direct reimbursement for 
 
         medical expenses unless he shows he has paid them from his own 
 
         funds.  Caylor v. Employers Mutual Casualty Co., 337 N.W.2d 890 
 
         (Iowa App. 1983).
 
         
 
                              FINDINGS OF FACT
 
         
 
              THEREFORE, based on the evidence presented, the following. 
 
         ultimate facts are found:
 
         
 
              1.  Claimant was hired by Roger Pomrenke personally as a 
 
         truck driver, and remained in that employment until June 11, 
 
         1987.
 
         
 
              2.  Claimant was involved in a vehicle accident on June 11, 
 
         1987, when he overturned the truck and trailer he was driving for 
 
         Roger Pomrenke.
 
         
 
              3.  Claimant's injury has caused him medical expenses, of 
 
         which he has personally paid Dr. Wheeler and American 
 
         Prosthetics.
 
         
 
              4.  Claimant was injured by his work incident to the extent 
 
         that he required medical treatment; this injury arose out of and 
 
         in the course of his employment with Roger Pomrenke.
 
         
 
              5.  Claimant suffers from degenerative arthritis and spinal 
 
         changes and from a former compression fracture of the cervical 
 
         spine.
 
         
 
              6.  No expert evidence was presented indicating that a 
 
         causal connection existed between the work injury and either 
 
         temporary or permanent disability.
 
         
 
                           CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant was employed by Roger Pomrenke, uninsured 
 
         defendant employer, on June 11, 1987.
 
         
 
              2.  Claimant suffered an injury arising out of and in the 
 
         course of that employment on June 11, 1987.
 
         
 
              3.  Claimant has established entitlement to medical benefits 
 
                                                
 
                                                         
 
         attributable to his work injury, being expenses and costs billed 
 
         by Bedel's Pharmacy ($22.95), Buena Vista County Hospital 
 
         ($528.00), Dr. Mark Wheeler ($85.00), and Buena Vista Clinic 
 
         ($215.00).
 
         
 
                                   ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendant is to pay unto claimant eighty-five and 00/100 
 
         dollars ($85.00) as and for medical expenses under Iowa Code. 
 
         section 85.27 (Dr. Wheeler).
 
         
 
              Defendant is to pay unto Bedel's Pharmacy the sum of 
 
         twenty-two and 95/100 dollars ($22.95), Buena Vista County 
 
         Hospital in the sum of five hundred twenty-eight and 00/100 
 
         dollars ($528.00), and Buena Vista Clinic, P.C., in the sum of 
 
         two hundred fifteen and 00/100 dollars ($215.00).
 
         
 
              The costs of this action shall be assessed to defendant 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendant shall file a claim activity report pursuant to 
 
         Division of Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 25th day of May, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            DAVID RASEY
 
                                   
 
                                                         
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Phil Redenbaugh
 
         Attorney at Law
 
         111 West Sixth Street
 
         Storm Lake, Iowa  50588
 
         
 
         Mr. Willis J. Hamilton
 
         Mr. Steve Hamilton
 
         Attorneys at Law
 
         606 Ontario Street
 
         P.O. Box 188
 
         Storm Lake, Iowa  50588
 
         
 
         
 
         
 
 
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            51402.40
 
                                            Filed May 25, 1989
 
                                            DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROBERT KONRADI,
 
         
 
              Claimant,
 
                                                      File No. 865300
 
         vs.
 
                                                   A R B I T R A T I 0 N
 
         ROGER POMRENKE, d/b/a
 
         R. P. EXPRESS, INC.,                         D E C I S I 0 N
 
         
 
              Employer,
 
              Uninsured,
 
              Defendant.
 
         
 
         
 
         51402.40
 
         
 
             Claimant failed to show causal connection between work injury 
 
         and disability.  Only medical benefits were awarded.