BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
____________________________________________________________
 
CARL T. RUFF, 
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                    File No. 867583
 
THREE RIVERS FS COMPANY,     
 
                                  A R B I T R A T I O N
 
     Employer, 
 
                                     D E C I S I O N
 
and       
 
          
 
EMPLOYERS MUTUAL COMPANIES,  
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
___________________________________________________________
 
 
 
                    STATEMENT OF THE CASE
 
 
 
This is a proceeding in arbitration upon the petition of claimant, Carl 
 
Ruff, against his former employer, Three Rivers Farm Service Co., and 
 
its insurance carrier, Employers' Mutual Companies, defendants.  The 
 
case was heard on November 15, 1994, at the office of the industrial 
 
commissioner in Des Moines, Iowa.  The record consists of the testimony 
 
of claimant.  The record also consists of the testimony of Mike H. 
 
Kuhn, General Manager of employer-defendant, and Frank Walker, Branch 
 
Manager of Crawford Health Care Management Director.  Additionally, 
 
the record consists of claimant's exhibits A and B and joint 
 
exhibits 1-21 and 26.  
 
 
 
                            ISSUES
 
 
 
The issues to be determined are:
 
 
 
1)  the nature and extent of any temporary and permanent partial 
 
disability benefits; 2) the proper rate to be used in calculating 
 
claimant's temporary and permanent disability benefits; 3) whether 
 
proper notice of termination of benefits was tendered to claimant 
 
pursuant to section 86.13 of the Iowa Code; and, 4) whether claimant is 
 
entitled to certain costs.
 
 
 
                       FINDINGS OF FACT
 
 
 
Having considered all the evidence received, together with the 
 
appearance and demeanor of the witnesses, the following findings of 
 
fact are made:
 
 
 
Claimant is a 32-year-old single man.  He lives in rural Farmersburg 
 
and he graduated from high school in 1980.  Claimant described his 
 
grades as "average."  Post high school, claimant completed one year of 
 
a two year course in auto mechanics at Northeast Iowa Technical 
 
College.  He reported he performed engine work only.
 
 
 
Claimant related his work history to the presiding deputy industrial 
 
commissioner.  As a child, claimant worked on the family farm tending 
 
dairy cattle, caring for hogs and assisting with the growing of corn 
 
and hay.
 
 
 
For approximately one year after his schooling, claimant worked on a 
 
farm as a hired hand.  He engaged in all types of heavy manual labor.  
 
Some of his duties included:  hauling manure, pitching hay, assisting 
 
with the wheat harvest and any other tasks which were assigned to him.
 
Next, claimant worked as a security guard in Florida.  His duties 
 

 
 
 
 
 
 
 
 
 
included a fire watch for a building which was being renovated.
 
Claimant returned to Iowa and started working at an auto body shop.  He 
 
sanded and primed automobiles, lifted fenders and bumpers, and engaged 
 
in the repetitive use of his arms.  He worked in that capacity for one 
 
year.
 
 
 
In 1985, claimant worked for one season hauling fertilizer to fields.  
 
The position was of short duration.
 
 
 
There was also a one week period where claimant repaired and painted 
 
water towers.  Again, the job was only of short duration.  He 
 
terminated for better employment opportunities.
 
 
 
In the fall of 1987, claimant commenced his employment with the present 
 
defendant.  He was hired as a part-time worker to deliver LP gas to 
 
customers.  He related he worked between 40 and 90 hours per week but 
 
that he had no benefits.  Claimant's other responsibilities included 
 
hauling feed, fertilizer and other petroleum products.  
 
 
 
Claimant reported to the deputy that he did not want to remain in the 
 
position indefinitely.  He had aspirations of working in an automobile 
 
repair shop.  
 
 
 
During direct examination, claimant described his primary work duties.  
 
He reported that he drove a two ton delivery truck with a single axle.  
 
He engaged in pulling motions whenever he needed to fill an empty LP 
 
gas tank.  He indicated his job was "pretty easy."
 
 
 
In the spring of each year, claimant's duties were modified to include 
 
the driving of a pick-up truck or a flatbed truck.  He was required to 
 
deliver feed and fertilizer.  
 
 
 
On October 13, 1987, claimant was delivering LP gas in the company 
 
truck.  He attempted to pass a tractor and trailer.  However, for some 
 
reason the tractor veered in front of claimant and he was forced into a 
 
ditch.  Claimant testified he was thrown from the truck which resulted 
 
in injuries to his back, ribs and shoulder.  Claimant was transported 
 
by ambulance to Central Community Hospital in Elkader, Iowa.  Kenneth 
 
E. Zichal, M.D., treated claimant at the hospital.  Dr. Zichal 
 
diagnosed claimant's condition as:  
 
 
 
"IMPRESSION:  Compression fractures of L4 with lesser 
 
fractures of L1 and 3.  Multiple contusions and abrasions."
 
The x-ray reports were interpreted by Thomas R. Terhorst, M.D.  He 
 
opined the following with respect to claimant's condition:
 
   
 
AP SUPINE CHEST:  Negative.
 
   
 
LUMBAR SPINE:  There is slight scoliosis convex right.  There is a 
 
compression fracture involving the superior end plate of L4 with about 
 
10% loss of height anteriorly.  There also appear to be tiny cortical 
 
infractions along the anterior superior margins of the L1 and L3 
 
vertebral bodies also probably representing minute acute fractures but 
 
with no significant loss of height.  Alignment is preserved and 
 
elsewhere negative.
 
   
 
   IMPRESSION:  ACUTE COMPRESSION FRACTURE OF L4 VERTEBRAL BODY ALONG 
 
WITH MINUTE CORTICAL FRACTURES ANTERIOR-SUPERIOR MARGINS L1 AND L3 
 
VERTEBRAL BODIES.
 
(Joint Exhibit 7-2)
 
 
 
Dr. Zichal continued treating claimant subsequent to his release from 
 
the local hospital.  In his report of September 28, 1989, the physician 
 
summarized his course of treatment for claimant.  He opined:
 
   
 
   I first saw Mr. Ruff on October 13, 1987, when he was admitted to 
 
our hospital following a single-vehicle truck accident where he ran off 
 
the road, rolled his truck, and was pitched through the windshield.  
 
Through incredible luck, he suffered no head, neck, or major chest 
 
injury.  He did have back pain, and subsequent X-rays showed about a 
 
ten percent compression fracture of L4, with L1 and 3 showing minimal 
 
cortical chip fractures.  He also had many bruises and contusions on 
 
his anterior chest, arms, and legs, the most major one being 
 
dorsally over his distal radius.  He subsequently was to note 
 
decreased sensation over his dorsal thumb and index finger due 
 
to contusions of the cutaneous nerve, probably the superficial 
 
branch of the radial nerve.  Paraesthesias had still not totally 
 
cleared by June 20, 1988, though there is certainly a good 
 

 
 
 
 
 
 
 
 
 
chance that within one or two years this will totally return.  He was 
 
hospitalized October 13, 1987, until October 15, 1987, at which time he 
 
felt his pain could bemanaged with oral meds alone.  We saw him 
 
back one week later.  He was doing well, but gave instructions 
 
to return in early January for follow-up reassessment.  When seen 
 
in January, he still had considerable back stiffness, as well as 
 
left shoulder, elbow, and wrist stiffness, for which he was referred 
 
to our physical therapist, Mr. Dennis Montet.  He was seen in 
 
physical therapy throughout January of 1988, and our last note was 
 
March 15, 1988.  He was seen back one last time on June 20, 1988, 
 
by me and by the therapist for determination of total disability.  
 
At that time, range of motion was measured as reported, with a 
 
final estimate of seven percent total impairment. . . .
 
(Jt. Ex. 3-25 and 3-26)
 
 
 
Approximately one year after his motor vehicle accident, claimant 
 
desired a second opinion regarding his back, left shoulder and left 
 
arm.  As a consequence, he traveled to the Mayo Clinic.  After a series 
 
of diagnostic tests, Carl W. Chan, M.D., examined claimant on October 
 
11, 1988 (Jt. Ex. 2-5).  Dr. Chan diagnosed claimant's condition as:
 
   
 
   A.  My diagnoses were post-traumatic low back strain with 
 
compression fractures of the lumbar spine at the L-1, L-3 and L-4 
 
levels.  Superimposed mechanical back pain because of the above.  Left 
 
shoulder biceps tendinitis with possible rotator cuff irritation and 
 
post-traumatic left superficial radial nerve neuropathy with residual 
 
hyperesthesias in the left superficial radial nerve distribution.  
 
(Jt. Ex. 2-15 and 2-16)
 
 
 
Dr. Chan recommended a home exercise program, heat packs, and ice for 
 
claimant's shoulder (Jt. Ex. 2-17).  The physician testified that from 
 
time to time claimant would need additional medical treatment for his 
 
condition (Jt. Ex. 2-20).
 
 
 
In his report of December 17, 1988, Dr. Chan made the following 
 
conclusions and recommendations for claimant's physical condition:
 
   
 
   For the superimposed low back pain, a home program of physical 
 
medicine and rehablitation [sic] modalities including heat, low back 
 
strengthening exercises, stretching and posture education for 
 
protecting the lumbosacral spine was given the patient.  For the left 
 
shoulder discomfort, a home program of ice, ultrasound and rotator cuff 
 
isometric strengthening exercises was prescribed for the patient, home 
 
instructions were given as well as the discharge summary for the 
 
patient to take home to his local physical therapist.  In regards 
 
to the left superficial radial nerve neuropathy, the patient was 
 
reassured that the neuropathy would not progress and might, indeed, 
 
possibly improve over time.  He was also told that he need not worry 
 
unduly about it.
 
   
 
   Mr. Ruff has reached maximum medical improvement in regards to his 
 
condition and that it is permanent and stationary.  He may, from time 
 
to time in the future, require medical treatment and evaluation of 
 
continued problems (especially with the chronic low back strain and 
 
degenerative joint disease resulting from the compression fractures at 
 
his lumbosacral spine).
 
   
 
   In regards to his vertebral fractures as well as the superimposed 
 
low back strain and pain resulting from the fractures, he is left with 
 
a permanent partial impairment rating of 10 percent of the whole body.  
 
In regards to the left superficial radial nerve neuropathy, he is left 
 
with a permanent partial impairment rating of 5 percent.  If one were 
 
asked to combine the two, he would have a permanent partial impairment 
 
rating of 15 percent of the whole body.
 
   
 
   Fortunately, Mr. Ruff has been able to return to work with help at 
 
work from his friends.   (Jt. Ex. 2-65 and 2-66)
 
 
 
Claimant began experiencing pain in his left shoulder.  He returned to 
 
his family physician, Dr. Zichal.  Eventually Dr. Zichal referred 
 

 
 
 
 
 
 
 
claimant to Scott P. Schemmel, M.D., a board certified orthopedic 
 
surgeon.  Dr. Schemmel first examined claimant on October 5, 1990.  At 
 
that time, Dr. Schemmel examined claimant and the physician diagnosed 
 
claimant's condition as:  
 
   
 
   PHYSICAL EXAM:  On today's examination, the patient's left shoulder 
 
is without any obvious atrophy or hypertrophy or deformity.  The left 
 
shoulder range of motion passively is full.  Actively the patient shows 
 
some restrictions at the extremes of forward flexion and abduction 
 
secondary to discomfort.  There is no tenderness over the AC joint 
 
itself.  I am unable to elicit any tenderness on direct palpation over 
 
the anterior aspect of the acromion or down towards the biceps or 
 
posteriorly or directly lateral to the acromion.  The patient's 
 
Neer's overhead impingement sign is equivocal, however, his Hawkins 
 
impingement sign appears to be positive.  The supraspinatus 
 
and external rotator strength is 5/5.  I am able to elicit some 
 
discomfort for this patient when placing him into the anterior 
 
apprehension position when he is sitting.  However, in the supine 
 
position I an unable to elicit any increased anterior translation 
 
or excursion of the humeral head, although I am able to elicit 
 
what the patient describes as a painful click when the humeral 
 
head is moved anteriorly against the labrum.  The posterior 
 
subluxation of the humeral head does not exceed 50%.  There is a 
 
negative posterior apprehension sign.  The patient is neurologically 
 
intact distally with the exception of a positive Tinel's at the 
 
distal aspect of the forearm radially, which is over the 
 
superficial radial nerve.
 
   
 
   At this point I do need to review the extensive records that the 
 
patient will be forwarding.  My sense based on today's examination is 
 
that the patient has a subacromial impingement phenomenon.  However, I 
 
cannot tell with any certainty whether or not this patient is a silent 
 
subluxor of his shoulder.  I should note that the Jobes test was 
 
equivocal and he may be suffering from a glenoid labrum tear.  I would 
 
like to proceed with a 2:1 subacromial injection today of Marcaine and 
 
Aristocort respectively and have the patient see me back in three 
 
weeks' time.  This injection will be helpful both from a diagnostic 
 
and therapeutic standpoing [sic] and if it is not helpful, 
 
therapeutically we have to turn our attention elsewhere.  Should 
 
the patient respond, we will start him on physical therapy and if 
 
he does not continue to do well, he will be a candidate for 
 
arthroscopy of the subacromial space.  In addition, if he does not 
 
respond at all we have to consider itnra [sic] articular damage despite 
 
the negative MRI scan and again he would be an arthroscopic 
 
candidate.  I have discussed this with the patient and I have 
 
explained to him that I need to review his records and I will be 
 
seeing him back as scheduled in three weeks' time.
 
(Jt. Ex. 8-1 and 8-2)
 
 
 
Claimant's condition did not improve with the conservative modalities 
 
which were prescribed by Dr. Schemmel.  In June of 1991, Dr. Schemmel 
 
performed a left shoulder subacromial space arthroscopy and bursectomy 
 
(Jt. Ex. 8-8).  The surgeon released claimant to return to work as of 
 
August 20, 1991.  On January 7, 1992, Dr. Schemmel examined and 
 
evaluated claimant for purposes of rendering an impairment rating.  The 
 
surgeon indicated in his clinical note for the same date:
 
 
 
This patient has a previous impairment rating as it relates to his back 
 
and his superficial radial nerve which was given to him at the Mayo 
 
Clinic.  In regards to his left shoulder, as I noted on my last clinic 
 
visit, he has a full range of motion of his shoulders with excellent 
 
strength and based on the AMA Guides to Evaluation of Permanent 
 
Impairment he has a 0 permanent impairment as it relates to his left 
 
shoulder.  The patient was informed of this and he states that he 
 
understands this.  He will see me back on an as needed basis.
 
(Jt. Ex. 8-14)
 

 
 
 
 
 
 
 
 
 
 
 
 
 
In December of 1993, claimant returned to Dr. Schemmel for left 
 
shoulder pain.  The surgeon injected claimant's shoulder with Celestone 
 
(Jt. Ex. 8-17).  Claimant had some relief from the injection (Jt. 
 
8-18).  Dr. Schemmel recommended some self-help methods for pain 
 
relief.  Claimant returned to Schemmel in 1994.  A left subacromial 
 
space acromoplasty was performed in April of 1994 (Jt. Ex. 8-21).  
 
Following the surgery, claimant engaged in physical therapy and 
 
rehabilitation (Jt. Ex. 8-21).
 
 
 
Initially, Dr. Schemmel released claimant to return to work with the 
 
following restrictions:
 
   
 
   1.  No repetitive work with the hand at shoulder level or above.2.  
 
No repetitive forward reaching.3.  No lifting of more than ten pounds 
 
above shoulder level for a single lift.
 
(Jt. Ex. 8-22)
 
 
 
Dr. Schemmel modified his opinion with respect to claimant's condition. 
 
 
 
 He opined as of September 23, 1994:
 
   
 
   PHYSICAL EXAMINATION:  Carl demonstrates a shoulder range of motion, 
 
which only has a very slight restriction of external rotation, both at 
 
the side and at the 90 degree abduction position in the scapular plane. 
 
 Otherwise, range of motion is full.  The impingement findings are 
 
negative and strength is 5/5 on supraspinatus and external rotation 
 
resistance, utilizing manual muscle testing.
 
   
 
   ASSESSMENT:
 
   
 
   1.  Left shoulder status post decompression with good result.  I 
 
suspect that Carl will have some residual from this in terms of 
 
stiffness and minor aches and pains with activity or daily living and 
 
heavy manual labor.  At the same time, I feel that he has made an 
 
adequate recovery to allow him to be discharged from the clinic at this 
 
time and should he be employed, I would give him a release without 
 
restriction.  His previous restrictions noted on his last clinic visit 
 
are thus lifted.  No further follow-up unless increasing problems.
 
(Jt. Ex. 8-22 and 8-23)
 
 
 
In anticipation of litigation, claimant's attorney referred claimant to 
 
Keith W. Riggins, M.D., for an examination and evaluation.  Dr. Riggins 
 
examined claimant on July 18, 1994.  The examination was followed by a 
 
report which Dr. Riggins authored.  He indicated in relevant portion:
 
 
 
PHYSICAL EXAMINATION
 
 
 
General observations:  Mr. Ruff is in no apparent pain at rest.
 
LEFT SHOULDER   Range of motion:  
 
Flexion -   160 degrees                  
 
Extension -  45 degrees                  
 
Adduction - 150 degrees                  
 
Adduction -  full and complete                  
 
Internal Rotation - full and complete                  
 
External rotation - full and complete
 
There is no palpable crepitus on range of motion.  Strength of 
 
elevation is Grade 5.
 
There is noted to be dysesthesia present on the anterior aspect of the 
 
left upper arm.
 
There are well healed arthroscopic incisions
 
 
 
LEFT RADIAL NERVE:  There is healed linear abrasion present on the 
 
lateral and posterolateral aspect of the left upper arm measuring 
 
approximately four inches in length.  There is a healed abrasion 
 
overlying the lateral aspect of the radial neck in the left forearm.
 
There is a Tinel sign present over the superficial branch of the radial 
 
nerve two and three-quarters inches (2 3/4") above the tip of the 
 
radial styloid.
 
 
 
There is dysesthesia to touch in the distribution of the superficial 
 
radial nerve below the level of the Tinel sign.
 
Strength of digital wrist extension and elbow extension is normal.
 
Grip strengths:  Grip strength on the right is 72/74/78                      
 
kilograms.                    
 
Grip strength on the left is 42/38/42 kilograms.
 
 
 
LUMBAR SPINE
 
Range of motion:  
 
Sacral flexion:    45 degrees                     
 
Lumbar flexion:    40 degrees                     
 
Lumbar extension:  20 degrees                     
 
Right flexion:     25 degrees                   
 

 
 
 
 
 
 
 
 
 
 
 
Left flexion:      35 degrees
 
Deep tendon reflexes are 2+ and symmetrical.  Sensation is normal to 
 
touch.  Strength is Grade 5.  There is no atrophy of the lower 
 
extremities.
 
 
 
DIAGNOSES:  
 
1.  Compression fractures lumbar spine                 
 
2.  Partial rotator cuff tear, left                               
 
shoulder.                 
 
3.  Contusion radial nerve, left arm.
 
 
 
IMPAIRMENT:  Impairment is rated utilizing the Fourth Edition of the 
 
AMA Guides to Evaluation of Permanent Impairment.
 
 
 
LUMBAR SPINE:  It is felt most appropriate impairment utilizing the 
 
Range of Motion Model.
 
 
 
Table 75 indicates 5% impairment of the whole person by less than 25% 
 
compression of lumbar vertebra.
 
 
 
Table 81 indicates an impairment of 2% of the whole person produced by 
 
limitation of flexion and 2% whole person impairment produced by 
 
limitation of extension.
 
 
 
There is no ratable impairment by Table 82 and no ratable impairment 
 
attributable to radiculopathy.
 
 
 
TOTAL LUMBAR SPINE IMPAIRMENT:  5% impairment derived from Table 75 is 
 
combined with 4% impairment derived from Table 81 (2% & 2%) producing 
 
9% whole person impairment due impairment in function of the lumbar 
 
spine.
 
 
 
LEFT UPPER EXTREMITY:  The most marked deficit in function of the left 
 
upper extremity is reduction of grip strength on the left.  It is 
 
therefore felt most appropriate to rate the left upper extremity by 
 
strength loss index.
 
 
 
     Strength loss index is calculated according to instructions      
 
     on page 65 
 
(72 kg. - 42 kg) = .4166 or 42%.
 
                       72 kg.
 
 
 
Table 34 indicates a strength loss index of 42% to provide 20 % [sic] 
 
impairment of the upper extremity.
 
 
 
There is considered to be 20% left upper extremity impairment due to 
 
loss of grip strength in the left hand.
 
 
 
CONVERSION:  In accordance with instructions contained within the 
 
Guides, 20% impairment of the left upper extremity is converted to 12% 
 
impairment of the whole person.
 
 
 
COMBINING:  12% impairment of the whole person due to impairment in 
 
function of the left upper extremity is combined with 9% impairment of 
 
the whole person due to impairment in function of the lumbar spine 
 
producing an impairment of the whole person of 20%.
 
 
 
FINAL IMPAIRMENT:  There is considered to be 20% whole person 
 
impairment due to impairments as described above.
 
 
 
DISCUSSION:  Mr. Ruff's current impairment is considered causely [sic] 
 
related to the motor vehicle accident described as occurring on July 
 
18, 1987.
 
 
 
Mr. Ruff is considered to have reached maximum medical improvement at 
 
three months after his most recent surgical procedure by Dr. Schemmel.
 
 
 
RESTRICTIONS
 
 
 
LUMBAR SPINE:  Appropriate restrictions on activity consist of no 
 
activities requiring repetitive forward bending beyond 20 degrees, 
 
maximum lifting of greater than 30 pounds with repetitive lifting of 
 
greater than 20 pounds, and no activities requiring positioning the 
 
body in awkward or ungainly positions.
 
 
 
LEFT SHOULDER:  The left shoulder precludes Mr. Ruff from performing 
 
activities requiring lifting of greater than 5 pounds above shoulder 
 
level or persistent positioning of the left upper extremity in the 
 
elevated position.
 
 
 
RADIAL NERVE CONTUSION:  The condition of radial nerve contusion 
 
imposes no specific limitations or restrictions.
 
(Jt. Ex. 1-46 through 1-49)
 
 
 
Dr. Riggins conducted a subsequent examination of claimant.  He did not 
 
discover any additional impairment to claimant's condition (Jt. Ex. 
 
1-15).
 
 
 
Dr. Riggins testified by deposition.  In his deposition, he explained 
 
the nature of the permanent restrictions which he imposed on claimant.  
 

 
 
 
 
 
 
 
 
 
 
 
 
 
He testified:
 
   
 
   Q.  Mr. Ruff at the time of his injury in 1987 and before that had 
 
been a truck driver.  Would you tell us what restrictions, if any, in 
 
your opinion now would apply as far as him operating a truck?
 
   A.  I would think it reasonable that he could drive a truck of 
 
mostly any description that was being operated on paved roads.  He 
 
probably would be unable to load and unload the truck primarily because 
 
of the conditions in his lumbar spine.  He more than likely would be 
 
unable to tolerate long over-the-road trips, you know, of several days' 
 
duration and would probably be best limited to more local trips that 
 
could be accomplished in a single day.
 
(Jt. Ex. 1-15 and 1-16)
 
 
 
Claimant's last day of employment was in June of 1993.  He was 
 
terminated because of his poor attendance record.  During the spring 
 
planting season, claimant was tardy or else he failed to appear for 
 
work.  At the time of the hearing, claimant was not regularly employed. 
 
 
 
 He indicated he engaged in "odd jobs."  He also repaired, detailed and 
 
sold cars on an intermittent basis. From June of 1993 through May of 
 
1994, claimant received unemployment insurance benefits.  During that 
 
time frame, claimant sought employment from a variety of employers.  
 
He applied for positions as a security guard on a riverboat.  He 
 
applied for employment at an auto parts store.  He searched for 
 
work as a delivery truck driver and as a LP gas truck driver.
 
 
 
Both defendants and claimant retained the services of vocational 
 
rehabilitation counselors.  Claimant retained Roger Marquardt and 
 
defendants hired Frank Walker.  Neither counselor was retained to find 
 
employment for claimant.  Each counselor was hired to do a labor market 
 
survey.  The results of each expert were predictable.
 
 
 
Mr. Marquardt issued his report of August 17, 1994.  In his conclusion, 
 
he indicated:
 
   
 
   From his training and vocational experience Carl Ruff has the basic 
 
skills to work as an L.P. gas serviceman (DOT #637.384-010), auto 
 
mechanic helper (DOT #620.684-014) truck driver (DOT #905.663-014) and 
 
other closely related occupations.  As described by the U.S. Department 
 
of Labor, these types of jobs normally require "medium" strength 
 
demands (lift/carry 25 lbs. frequently-50 lbs. occasionally).  They 
 
also are all within the general work group "Mechanical", sub-groups 
 
"Mechanical Crafts", "Mechanical Work, Elemental" and "Truck 
 
Driving", which indicates similar worker interests.  In addition, 
 
the jobs are also closely related by worker trait factors (census codes).
 
   
 
   With Mr. Ruff's physical restrictions as understood, he can no 
 
longer tolerate work requiring "medium" strength demands.  As a result, 
 
he cannot perform the jobs for which he is skilled.  He is basically 
 
limited to lower level semi-skilled and unskilled work with "light" or 
 
"sedentary" strength demands not requiring repetitive or above chest 
 
use of the non-dominant arm.
 
   
 
   "Light" and "sedentary" work is listed by the U.S. Department of 
 
Labor as comprising roughly 61% of the overall job market and 50% of 
 
the unskilled market.
 
   
 
   In summary, Carl Ruff is now restricted to approximately one half of 
 
his pre-injury job market and, within that remaining market, he also 
 
has some degree of loss in wage potential due to his lack of useable 
 
job skills.  Even so, this gentleman has a high school education and 
 
the potential, at age 32, to satisfactorily learn and adjust to new 
 
work.  Considering the major points in determining occupational loss, 
 
in my opinion, Mr. Ruff has a 20 to 25 percent vocational impairment as 
 
a result of his continuing and permanent physical residuals.
 
 (Jt. Ex. 14-4)
 
 
 
Mr. Walker also issued a written report pursuant to a request from 
 
defendants.  His report is dated November 8, 1994.  In his summary, he 
 
wrote:
 

 
 
 
 
 
 
 
 
 
   It is felt that Mr. Ruff's vocational strengths and transferable 
 
skills based on previous employment would lead to gainful employment 
 
within his vocational and medical capabilities.  It is also felt that 
 
there are available employment positions which are within the 
 
identified transferable skills to assist in returning to gainful 
 
employment.  From the labor market information researched, it would 
 
appear feasible and realistic that these jobs would be at or even more 
 
than the previous salary range at the time of Mr. Ruff's injury.
 
   
 
   The jobs indicated in this report were for light and sedentary types 
 
of occupations.  However, it is possible that certain medium level 
 
occupations could be considered based upon the restrictions given by 
 
Dr. Riggins who said no maximum lifting of greater than 30 pounds with 
 
repetitive lifting greater than 20 pounds.  This could be considered as 
 
long as it was not lifting above the shoulder.  The Dictionary of 
 
Occupational Titles lists the medium strength factor as being up to 25 
 
pounds with a maximum lift of 50 pounds.  Dr. Schemmel, in his 
 
office note of September 23, 1994, felt that the claimant had made 
 
adequate recovery to allow him to be discharged from the clinic 
 
at this time and should be employed.  "I would give him a release 
 
without restriction".  This opens up many other employment 
 
opportunities and would eliminate the need to search for jobs 
 
just in the light and sedentary occupations.
 
(Jt. Ex. 16-4 and 16-5)
 
 
 
                       CONCLUSIONS OF LAW
 
 
 
The burden of proof is on the party asserting the affirmative of an 
 
issue in an administrative proceeding; "on the party who would suffer 
 
loss if the issue were not established."  Wonder Life Co. v. Liddy, 207 
 
N.W.2d 27 (Iowa 1973); Norland v. Ides, 412 N.W.2d 904 (Iowa 1987).
 
 
 
The parties have stipulated that claimant has sustained both temporary 
 
and permanent disabilities as a result of the work injury on October 
 
13, 1987.  The extent of claimant's disability is in issue.  Claimant's 
 
injuries affect the body as a whole.  Functional impairment ratings 
 
have been given to claimant by several physicians.  The ratings are 
 
from 0 percent for claimant's left shoulder to 20 percent for a body as 
 
a whole injury. 
 
 
 
Claimant alleges he has sustained an industrial disability.  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 the employee is fitted.  Olson v. Goodyear Serv. 
 
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.  Impairment and 
 
disability are not synonymous.  The degree of industrial disability can 
 
be much different than the degree of impairment because industrial 
 
disability references to loss of earning capacity and impairment 
 
references 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 the healing period; the work experience of the employee 
 
prior to the injury and after the injury and the 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.  Likewise, an employer's refusal to give any 
 
sort of work to an impaired employee may justify an award of 
 
disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). 
 
 
 
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.  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 as well as general and specialized knowledge to make 
 
the finding with regard to degree of industrial disability.  
 
See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
Commissioner Decisions 529 (App. March 26, 1985); Peterson v. Truck 
 
Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner 
 
Decisions 654 (App. February 28, 1985).
 
 
 
Compensation for permanent partial disability shall begin at the 
 
termination of the healing period.  Compensation shall be paid in 
 
relation to 500 weeks as the disability bears to the body as a whole.  
 
Section 85.34.
 
 
 
Recently, The Iowa Supreme Court addressed a claimant's body as a whole 
 
industrial disability.  In Thilges v. Snap On Tools,______N.W.2d 
 
_____(Iowa 1995), Justice Carter wrote the following with respect to 
 
loss of earning capacity:
 
 
 
[I]n viewing loss of earning capacity in terms of the injured worker's 
 
present ability to earn in the competitive job market without regard to 
 
the accommodation furnished by one's present employer.  The 
 
characterization of loss of earning capacity is consistent with our 
 
recognition in ENT Associates v. Collentine, 525 N.W.2d 827 (Iowa 
 
1994), that a change in earning capacity may be made the subject of a 
 
review-reopening proceeding in which permanent partial disability 
 
benefits may be increased without any showing in a change of physical 
 
condition. Id. at 829.  The result approved in Collentine strongly 
 
suggests that an injured employee's earning capacity for purposes 
 
of fixing the percentage of permanent partial disability is based 
 
on present conditions and does not focus on the employee's remaining 
 
working future in its entirety . . .Supra at ____.
 
 
 
Claimant was able to return to work following his work injury.  He 
 
remained employed in the same capacity for several years following the 
 
motor vehicle accident.  While it is true that claimant was terminated 
 
from his employment, there is no evidence in the record to establish 
 
that the termination was even remotely related to claimant's work 
 
injury.  Claimant's termination was the result of his inability to 
 
appear for work at the designated time.  As of the date of the hearing, 
 
claimant was not regularly employed.
 
 
 
There is disagreement among the medical experts relative to permanent 
 
restrictions.  Dr. Zichal did not impose permanent restrictions on 
 
claimant.  Nor did the physical therapists who treated and evaluated 
 
claimant.  Dr. Chan did not impose restrictions.
 
 
 
On the other hand, Dr. Riggins imposed some physical restrictions on 
 
claimant.  He is precluded from repetitive forward bending beyond 20 
 
degrees, from lifting greater than 30 pounds with no repetitive lifting 
 
of more than 20 pounds, no awkward movements, and claimant is 
 
restricted from lifting more than 5 pounds above shoulder level.
 
 
 
Subsequent to claimant's termination from his employment, he suffered 
 
reoccurring problems with his left shoulder.  Eventually, his left 
 
shoulder problems were so severe, that Dr. Schemmel performed two 
 
separate surgical procedures.  For a period of time, claimant was 
 
restricted from returning to employment.  Then Dr. Schemmel imposed 
 
some temporary work restrictions.  Dr. Schemmel later removed the 
 
restrictions and claimant was released to return to the same type of 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
employment.
 
 
 
It is apparent to this deputy industrial commissioner that the greater 
 
weight of the evidence does not support a conclusion that claimant is 
 
permanently restricted from certain activities.  Most of the medical 
 
providers support a determination that claimant is able to work without 
 
the necessity of restrictions.  Claimant is able to work, in at least 
 
the medium category of occupations, as determined by the Dictionary of 
 
Occupational Titles.
 
 
 
Claimant is able to return to the same type of position which he held 
 
prior to the work injury.  He has had a compression fracture to his 
 
spine and some employers may be reluctant to hire him.  Even if the 
 
restrictions which Dr. Riggins imposed are considered, claimant is 
 
still capable of driving a delivery truck, so long as he does not 
 
violate the lifting restrictions.  Claimant will not find it difficult 
 
to find employment in the medium category of work.  Mr. Walker, the 
 
vocational rehabilitation counselor, listed numerous types of 
 
jobs which fit into the "medium category." 
 
 
 
 Many of the jobs are entry level positions so the wages may be at the 
 
minimum wage level or less than what claimant earned at the time of his 
 
termination.
 
 
 
Claimant's age is in his favor.  He is a younger worker and he has many 
 
years of work ahead of him.  His age is a positive factor.  It does not 
 
impede his employment.  
 
 
 
Claimant has some transferable skills which are available to him.  He 
 
has a high school diploma.  He has a vast knowledge of automobiles, 
 
engines and body work.  He has experience in agriculture.  
 
 
 
Claimant has not demonstrated to the deputy that he is especially 
 
anxious to return to regular full time employment.  His efforts to 
 
secure other employment seem halfhearted.  He is comfortable performing 
 
odd jobs or engaging in intermittent employment.
 
 
 
Therefore, it is the determination of the undersigned that claimant has 
 
sustained a 20 percent permanent partial disability.  He is entitled to 
 
100 weeks of permanent partial disability benefits.  The commencement 
 
date for those benefits is September 24, 1994, the date Dr. Schemmel 
 
released claimant to return to work without restrictions (Jt. Ex. 8-14)
 
 
 
The next issue to address is the issue of healing period benefits.  
 
Section 85.34(1) provides that healing period benefits are payable to 
 
an injured worker who has suffered permanent partial disability until 
 
(1) the worker has returned to work; (2) the worker is medically 
 
capable of returning to substantially similar employment; or (3) the 
 
worker has achieved maximum medical recovery.  The healing period can 
 
be considered the period during which there is a reasonable expectation 
 
of improvement of the disabling condition.  See Armstrong Tire 
 
& Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa Ct. App. 1981).  
 
Healing period benefits can be interrupted or intermittent.  
 
Teel v. McCord, 394 N.W.2d 405 (Iowa 1986).
 
 
 
A healing period may be interrupted by a return to work.  Riesselman v. 
 
Carroll Health Center, III Iowa Industrial Comm'r Report 9 (App. 1982). 
 
 Claimant was in a healing period on several occasions.  He is entitled 
 
to benefits for the following periods:
 
       
 
       October 13, 1987 through March 8, 1988
 
       March 25, 1991 through August 19, 1991
 
       December 14, 1993 through January 26, 1994
 
       March 22, 1994 through September 23, 1994
 
 
 
This is a period of 75.143 weeks.  Claimant is entitled to healing 
 
period benefits for this period.
 
 
 
The next issue to address is the issue of the appropriate rate to use 
 
when calculating claimant's weekly benefit rate.  
 
 
 
Claimant, in his brief, argues that:
 
   
 
   Weekly compensation here must be based on section 85.36, subsection 
 
7, because the claimant had been in the employ of the employer less 
 
than thirteen calendar weeks immediately proceeding [sic] the injury.  
 
According to exhibit 19, there was a gap in the employment between May, 
 
1987 and September, 1987.  See pages 7 and 8.  Accordingly, weekly 
 
earnings shall be computed under subsection 6, taking the earnings to 
 
be the amount the claimant would have earned had he been so employed by 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
the employer the full thirteen calendar weeks immediately 
 
preceding the injury.Defendants, argue in their brief that:
 
   
 
   Defendants believe that the rate was clearly miscalculated as the 
 
record in this case establishes that the Claimant was a part-time 
 
employee (See Deposition of Carl T. Ruff at pps. 7-8; Joint Exhibit 19 
 
(1)) whose rate should have been  calculated pursuant to the provisions 
 
of Iowa Code  85.36(10) which provide in pertinent part:
 
   
 
   If an employee earns . . . less than the usual weekly earnings of 
 
the regular full-time adult laborer in the line of industry in which 
 
the employee is injured in that locality, the weekly earnings shall be 
 
one-fiftieth of the total earnings which the employee has earned from 
 
all employment during the 12 calendar months immediately preceding the 
 
injury.
 
 
 
The evidence supports a finding that claimant was a part-time employee 
 
as of the date of his work injury.  Mike Kuhn, General Manager, 
 
testified that claimant was hired as a part-time employee.  Claimant 
 
did not become a full time employee until 1989.
 
 
 
Part-time employment is discussed in Lawyer & Higgs, Iowa Workers' 
 
Compensation Law and Practice,  12-8 at 113 (2d Ed.)  The authors 
 
write:
 
   
 
   Iowa Code section 85.36(10) provides a special rule for calculating 
 
gross weekly earnings to determine rate when a worker earns "less than 
 
the weekly earnings of the regular full-time adult laborer in the line 
 
of industry in which the employee is injured in that locality."  In 
 
this situation, "the weekly earnings [are] one-fiftieth of the total 
 
earnings which the employee has earned from all employment during the 
 
twelve calendar months immediately preceding the injury."  Although 
 
this provision should cover underpaid workers, it is typically 
 
used to figure the rate for part-time workers.
 
 
 
Defendants are correct with respect to the calculation of claimant's 
 
gross weekly wages and weekly benefits.  Utilizing the provisions of 
 
Iowa Code section 85.36(10), claimant's compensation rate should have 
 
been calculated based on one-fiftieth of this total earnings from all 
 
employment during the year preceding the injury.  Since claimant's 
 
injury occurred in October of 1987, it is appropriate to use claimant's 
 
1986 tax return as evidence of his total earnings (Jt. Ex. 26-21).  
 
 
 
Claimant's 1986 tax returnreveals that in 1986, claimant had total 
 
gross earnings of $7,343.00.  When divided by 50, average gross 
 
weekly earnings for claimant in 1986 is $146.86, the applicable 
 
compensation rate for a single individual with one exemption is 
 
$96.14 per week.  Claimant should be compensated for all weekly 
 
benefits at this rate.
 
 
 
The next issue for resolution is whether defendants tendered proper 
 
notice to claimant of the termination of claimant's weekly benefits.  
 
Claimant submitted his exhibit A in support of his claim that 
 
defendants failed to comply with section 86.13 of the Iowa Code.  
 
Exhibit A is a letter dated November 10, 1994, from Darla Phipps, 
 
Claim Examiner for EMC Insurance Companies.  The letter reads in 
 
its entirety:
 
   
 
   We are sorry you had a work injury, but are pleased to have been 
 
able to provide you with workers' compensation benefits since your 
 
injury on October 13, 1987.  As you know, you have been receiving 
 
benefits in the amount of $209.18 per week.
 
   
 
   Based on a telephone report from Dr. Schemmel, you reached maximum 
 
medical improvement on September 23, 1994 and were able to return to 
 
work.  For this reason, because you have not returned to work, you will 
 
be entitled to receive workers' compensation benefits up to 30 days 
 
from the time you receive this letter or until such time as you return 
 
to work.
 
   
 
   If you do not feel you are able to return to work on or before 30 
 
days of the receipt of this letter, please feel free to submit any 
 
evidence substantiating your inability to return to work.  You will 
 
then be notified by letter whether we still plan to terminate your 
 
benefits on the aforegoing date.
 

 
 
 
 
 
 
 
 
 
   The vast majority of workers' compensation claims are processed to 
 
the satisfaction of all concerned and we hope that yours has been one 
 
of those.  If you have any questions concerning this matter, please 
 
contact your attorney.
 
 
 
In Auxier v. Woodward State Hospital-School, 266 N.W.2d 139 (Iowa 
 
1978), the Iowa Supreme Court held that a claimant's interests in 
 
workers' compensation benefits is a property right which cannot be 
 
taken away without due process of law.  
 
 
 
The principles in Auxier were codified in section 86.13.  The section 
 
provides in relevant portion:
 
 
 
If commenced, the payments shall be terminated only when the employee 
 
has returned to work, or upon thirty days' notice stating the reason 
 
for the termination and advising the employee of the right to file a 
 
claim with the industrial commissioner.
 
 
 
Defendants' letter to claimant did not contain a provision telling 
 
claimant he had a right to file a claim with the industrial 
 
commissioner.  Since the letter does not comply with the provisions of 
 
section 86.13, defendants have failed to tender proper notice.  
 
Claimant is entitled to an additional 30 days of weekly benefits for 
 
the period from September 24, 1994 through October 24, 1994.  Weekly 
 
benefits are payable at the rate of $96.14 per week.
 
 
 
The final issue to address is the issue of costs.  Section 86.40 of the 
 
Iowa Code provides:  "All costs incurred in the hearing before the 
 
commissioner shall be taxed in the discretion of the commissioner."
 
Rule 343 IAC 4.33 governs the costs which are taxed by the 
 
commissioner.  The rule provides:
 
   
 
   Costs taxed by the industrial commissioner or a deputy commissioner 
 
shall be (1) attendance of a certified shorthand reporter or presence 
 
of mechanical means at hearings and evidential depositions, (2) 
 
transcription costs when appropriate, (3) costs of service of the 
 
original notice and subpoenas, (4) witness fees and expenses as 
 
provided by Iowa Code sections 622.69 and 622.72, (5) the costs of 
 
doctors' and practitioners' deposition testimony, provided that said 
 
costs do not exceed the amounts provided by Iowa Code sections 
 
622.69 and 622.72, (6) the reasonable costs of obtaining no more 
 
than two doctors' or practitioners' reports, (7) filing fees 
 
when appropriate, . . .Here claimant is requesting the costs 
 
of certain deposition costs for expert witnesses.  Section 
 
622.72 provides:
 
   
 
   Witnesses called to testify only to an opinion founded on special 
 
study or experience in any branch of science, or to make scientific or 
 
professional examinations and state the result thereof, shall receive 
 
additional compensation, to be fixed by the court, with reference to 
 
the value of the time employed and the degree of learning or skill 
 
required; but such additional compensation shall not exceed one hundred 
 
fifty dollars per day while so employed.
 
 
 
Claimant is entitled to those costs as provided by section 622.72.  
 
Claimant did not attach an itemization of the specific costs.  However, 
 
defendants are liable for all costs which are allowable under the Iowa 
 
Code.
 
 
 
                             ORDER
 
 
 
THEREFORE, IT IS ORDERED:
 
 
 
Defendants shall pay unto claimant one hundred (100) weeks of permanent 
 
partial disability benefits at the weekly benefit rate of ninety-six 
 
and 14/l00 dollars ($96.14) per week and commencing on September 24, 
 
1994.
 
 
 
Defendants shall pay unto claimant seventy-five point one four three 
 
(75.143) weeks of healing period benefits for the periods from:
 
 
 
           October 13, 1987 through March 8, 1988
 
           March 25, 1991 through August 19, 1991
 
           December 14, 1993 through January 26, 1994
 
           March 22, 1994 through September 23, 1994
 
 
 
and for the additional period:
 
 
 

 
 
 
 
 
 
 
 
 
          September 24, 1994 through October 24, 1994
 
 
 
and all healing period benefits shall be paid at the weekly benefit 
 
rate of ninety-six and 14/l00 dollars ($96.14) per week.
 
 
 
Accrued benefits are to be paid in a lump sum together with statutory 
 
interest at the rate of ten percent (10%) per year pursuant to section 
 
85.30, Iowa Code, as amended.
 
 
 
Defendants shall take credit for all benefits previously paid claimant.
 
Costs are taxed to defendant pursuant to Chapter 622, Iowa Code, as 
 
amended and rule 343 IAC 4.33.
 
 
 
Defendants shall file a claim activity report as requested by this 
 
division and pursuant to rule 343 IAC 3.1.
 
 
 
Signed and filed this ____ day of April, 1995.         
 
                               ______________________________               
 
                               MICHELLE A. McGOVERN          
 
                               DEPUTY INDUSTRIAL COMMISSIONER
 
 
 
Copies To:
 
 
 
Mr. Harry W. Dahl, Sr.
 
Attorney at Law
 
974 73rd St  STE 16
 
Des Moines  IA  50312
 
 
 
Mr. Philip H. Dorff
 
Attorney at Law
 
2700 Grand Ave  STE 111
 
Des Moines  IA  50312
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                  3000; 3002
 
                                  Filed April 20, 1995
 
                                  MICHELLE A. McGOVERN
 
 
 
         BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
____________________________________________________________
 
          
 
CARL T. RUFF, 
 
          
 
     Claimant, 
 
     
 
vs.       
 
                                      File No. 867583
 
THREE RIVERS FS COMPANY,     
 
                                   A R B I T R A T I O N
 
     Employer, 
 
                                      D E C I S I O N
 
and       
 
          
 
EMPLOYERS MUTUAL COMPANIES,  
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
___________________________________________________________
 
3000, 3002
 
Claimant was deemed a part-time employee for purposes of calculating 
 
claimant's weekly benefit rate.  He was employed in an agricultural 
 
related field.  In the spring, claimant delivered ammonia.  He did not 
 
work in the summer and then during the fall he was retained to haul and 
 
deliver LP gas.  Rate was calculated pursuant to the provisions of Iowa 
 
Code section 85.36(10).  
 
 
         
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         ROBERT JOSHUA,   
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                             File Nos. 867922; 983822;
 
         SWIFT INDEPENDENT MEAT PACKING                983823; 957122
 
         n/k/a MONFORT PACKING, INC.,    
 
                                                     A P P E A L
 
              Employer,   
 
                                                   D E C I S I O N
 
         and         
 
                     
 
         CIGNA, INC. AND TRANSPORTATION  
 
         INDEMITY,   
 
                     
 
              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 
 
         November 30, 1992 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 April, 1993.
 
         
 
         
 
                                ________________________________
 
                                          BYRON K. ORTON
 
                                       INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Marc A. Humphrey
 
         Ms. Kathleen J. Beebout
 
         Attorneys at Law
 
         5001 S.W. Ninth Street
 
         Des Moines, Iowa  50315
 
         
 
         Mr. David E. Linquist
 
         Mr. Steven R. Cantonwine
 
         Attorneys at Law
 
         Breakwater Building
 
         3708 75th Street
 
         Des Moines, Iowa  50322
 
         
 
         Mr. Timothy W. Wegman
 
         Attorney at Law
 
         405 6th Avenue  STE 700
 
         Des Moines, Iowa  50309-9130
 
         
 
 
            
 
 
 
 
 
             
 
 
 
                                             1108.50; 1803; 2209
 
                                             Filed April 26, 1993
 
                                             BYRON K. ORTON
 
            
 
            BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                         
 
            ROBERT JOSHUA,   
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                           File Nos. 867922; 983822;
 
            SWIFT INDEPENDENT MEAT PACKING           957122; 983823; 
 
                                                     
 
            n/k/a MONFORT PACKING, INC.,    
 
                                                  A P P E A L
 
                 Employer,   
 
                                                D E C I S I O N
 
            and         
 
                        
 
            CIGNA, INC. AND TRANSPORTATION  
 
            INDEMITY,   
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
           
 
            
 
            
 
            
 
            1108.50; 1803; 2209
 
            
 
            Claimant did not establish that alleged separate incidents 
 
            at work had individually or cumulatively result in permanent 
 
            injury.  Only evidence of permanency were claimant's 
 
            continuing subjective complaints of pain.  Findings on 
 
            objective examination and on diagnostic studies did not 
 
            support any permanent condition.  Claimant lacked even 
 
            muscle spasms or tenderness on palpation.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            ROBERT JOSHUA, 
 
                      
 
                 Claimant, 
 
                                              File Nos. 867922 983822
 
            vs.                                         983823 957122
 
                      
 
            SWIFT INDEPENDENT MEAT        
 
             PACKING, n/k/a MONFORT       
 
             PACKING, INC. 
 
                                             A R B I T R A T I O N
 
                 Employer, 
 
                                               D E C I S I O N
 
            and       
 
                      
 
            CIGNA, INC. AND     
 
            TRANSPORTATION INDEMITY,     
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
                            STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by the 
 
            claimant, Robert Joshua, against his employer, Swift 
 
            Independent Packing Company now known as Monfort, and its 
 
            insurance carriers, CIGNA and Transportation Indemnity 
 
            Company, to recovery benefits under the Iowa Workers' 
 
            Compensation Act as a result of claimed injuries of May 12, 
 
            1987, April 1, 1989, May 12, 1989 and July 5, 1990.  This 
 
            matter came on for hearing before the undersigned deputy 
 
            industrial commissioner at Des Moines, Iowa on October 20, 
 
            1992.  First reports of injury have been filed.  The record 
 
            consists of the testimony of claimant, Kent Jayne, Peter C. 
 
            Crivaro and of Paul Rottenberg as well as of claimant's 
 
            exhibit 1, joint exhibits 2 through 6, employer's exhibits A 
 
            through F and employer's exhibits I through IV.  
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the hearing assignment order, the hearing 
 
            report and oral stipulations of the parties, the parties 
 
            stipulate to the following:  1) that claimant was married 
 
            and entitled to six exemptions at the time of his injuries 
 
            and that claimant had a gross weekly wage of $335.12 on May 
 
            12, 1987, entitling claimant to a weekly rate of $231.55 
 
            relative to that alleged injury and that claimant had a 
 
            gross weekly wage of $338 as of April 1, 1989, May 12, 1989 
 
            and July 5, 1990, entitling claimant to a weekly rate of 
 
            $235.84 relative to those alleged injuries.  The parties 
 
            further stipulate that claimant did receive injuries which 
 
            arose out of and in the course of his employment on May 12, 
 
            1987 and July 5, 1990 and that the July 5, 1990 injury 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            resulted in a period of temporary total disability.  
 
            
 
                 Issues remaining to be decided are:  
 
            
 
                 1) Whether claimant did receive injuries arising out of 
 
            and in the course of his employment on April 1, 1989 and May 
 
            12, 1989; 
 
            
 
                 2) Whether claimant gave appropriate notice to his 
 
            employer under section 85.23 relative to the alleged April 
 
            1, 1989 and May 12, 1989 injuries; 
 
            
 
                 3) Whether claims relative to the alleged April 1, 1989 
 
            and May 12, 1989, injuries were filed within the applicable 
 
            statute of limitations; 
 
            
 
                 4) Whether a causal relationship exists between the 
 
            claimed injuries and claimed disability relative to all 
 
            claimed injuries and all nonstipulated disabilities; and 
 
            
 
                 5) The nature and extent of any benefit entitlement.  
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The deputy, having heard the testimony and considered 
 
            the evidence, finds:
 
            
 
                 Claimant is a 34-year-old gentleman who has completed 
 
            11th grade and has not received GED.  He has tested as 
 
            having an IQ of 60 which would place him in the middle to 
 
            mildly retarded range.  He tested as reading at third grade 
 
            level and as spelling and doing math at below the third 
 
            grade level.  Claimant's reading of materials at hearing 
 
            would suggest a greater reading capacity than the third 
 
            grade level, however.  Claimant is approximately 5 feet 6 
 
            inches tall and variously weighted between 128 and 140 lbs.  
 
            
 
                 Claimant currently works 32 to 34 hours per week as a 
 
            hotel houseman wherein he mops floors, dumps garbage, washes 
 
            windows and transfers food.  He earns $4.95 per hour.  
 
            Claimant worked for Swift Independent Packing Company from 
 
            late Fall 1984 through January 1991, when he was terminated 
 
            for having accumulated eight absentee points within a six 
 
            month period.  Claimant attempted to connect his absenteeism 
 
            with his alleged work injuries.  The record as a whole does 
 
            not support that contention, however.  Initially, subsequent 
 
            to his Monfort termination, claimant secured employment as a 
 
            clean-up crew member with Mossberg Janitorial Services.  
 
            Mossberg cleans the Monfort plant.  Claimant was terminated 
 
            from that employment at Monfort's request in that employees 
 
            terminated from Monfort are not allowed to work on the 
 
            Monfort premises subsequent to the Monfort termination.  
 
            
 
                 Claimant had a variety of employments, many of them in 
 
            either meat packing or hide processing, prior to beginning 
 
            work at Monfort in 1984.  His duties in hide processing at 
 
            Monfort and elsewhere consisted of putting hides in a vat 
 
            containing processing solution and pulling the hides from 
 
            the vat after they were processed.  Hides were hung on hooks 
 
            in a two-wheel pallet, 9 to 10 feet deep.  Claimant used a 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            long rod to "fish" the processing tank to be sure all hides 
 
            had been removed.  Hide removal was considered a two-person 
 
            job.  Claimant generally did the job alone.  Hide removal 
 
            was heavy work involving bending, straining and twisting. 
 
            
 
                 On May 12, 1987, claimant experienced low back pain 
 
            near the waist while pulling to remove a hide tangled about 
 
            a chain.  Claimant saw Peter Wirtz, M.D., on June 8, 1987.  
 
            Dr. Wirtz diagnosed musculosketetal strain of the back 
 
            secondary to over stress.  He advised claimant to restrict 
 
            his bending for two to three weeks.  On exam, claimant was 
 
            tender over the left and right lower lumbar spine.  Straight 
 
            leg raising was 90/90 when sitting and 60/80 when supine.  
 
            Neither sciatic notch tenderness nor sensory deficit was 
 
            noted.  Claimant returned to light duty work after work 
 
            hardening and physical therapy.  He then resumed his regular 
 
            pulling hide duties.  Claimant testified that these duties 
 
            were more difficult after the May 12, 1987 injury.  Dr. 
 
            Wirtz again saw claimant on February 10, 1988.  Dr. Writz 
 
            diagnosed continued lumbar disc symptoms with radiation.  On 
 
            exam, straight leg raising was again 90/90 and again no 
 
            sensory deficit was noted.  An MRI of February 24, 1988, was 
 
            negative.   On March 16, 1988, Wirtz returned claimant to 
 
            work with restrictions on forward bending and leaning and 
 
            lifting.  Wirtz saw claimant on June 8, 1988, claimant was 
 
            then off work from June 2, 1988, as result of low back pain 
 
            noted while claimant pulled hides.  Wirtz noted some 
 
            tenderness at the L5-S1 interspace.  Straight leg raising 
 
            again was 90/90; no neurological problems were found.  Writz 
 
            prescribed physical therapy and restricted claimant's 
 
            bending, lifting, and twisting with a note for a recheck in 
 
            two weeks.
 
            
 
                 Dr. Writz again saw claimant on July 14, 1988, for 
 
            continued low back pain.  He advised restrictions on 
 
            bending, twisting and lifting and a recheck in two weeks.
 
            
 
                 David J. Boarini, M.D., a neurologist, saw claimant on 
 
            approximately April 5, 1988.  Boarini interpreted the 
 
            February 24, 1988, MRI as showing a very questionable defect 
 
            at L4/5.  He characterized claimant's main difficulty as 
 
            back pain with mild lumbar raticulopathy.  He prescribed 
 
            work hardening.  On August 8, 1988, Dr. Boarini opined that 
 
            claimant had no difficulties warranting a permanent partial 
 
            impairment rating.  Dr. Boarini released  claimant for 
 
            regular work on October 7, 1988.  
 
            
 
                 On October 5, 1988, claimant was in a motor vehicle 
 
            accident in which his car was rear-ended.  Claimant was 
 
            transported by ambulance to Mercy Medical Center where he 
 
            complained of low back and cervical pain.  He gave a history 
 
            of prior work related low back problems.  Claimant saw 
 
            Gregory Norton, D.C. on October 12, 1988, for cervical and 
 
            low back complaints.  Claimant treated intermittently with 
 
            Norton throughout the next several years.  
 
            
 
                 On October 10, 1987, either James Blessman M.D. or 
 
            Kevin Smith M.D. of Iowa Occupational Medicine released 
 
            claimant to return to regular duty work following an 
 
            impression of low back strain with muscle spasm, resolved.  
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 Claimant recalls no injury on April 1, 1989.  Per 
 
            January 2, 1990, medical report of Dr. Norton, claimant has 
 
            a history of acute exacerbation of low back pain while 
 
            pulling hides on May 12, 1989.
 
            
 
                 Physicians at Iowa Occupational Medicine examined 
 
            claimant on May 15, 1989.  Straight leg raising was then 
 
            negative. Claimant had no palpable heat, redness, or 
 
            deformity in the  lumbar area.  When seen on May 17, 1989, 
 
            the impression was of chronic low back pain apparently not 
 
            of significant severity.  Claimant was released to work with 
 
            a 35 to 40 pound weight limit and advised to decrease 
 
            repetitive bending.  On May 24, 1989, Iowa Occupational 
 
            Medicine physicians reported that claimant's chronic low 
 
            back pain was improving with his job change and that no 
 
            tenderness or deformity was noted.  Straight leg raising 
 
            remained negative.
 
            
 
                 On July 5, 1990, claimant experienced pain as he bent 
 
            to pick up a face plate.  Physicians at Iowa Occupational 
 
            Medicine noted that straight leg raising was positive at 30 
 
            degrees on the right and 40 degrees on the left.  Claimant 
 
            had tremendous spasm on the lower right low back and 
 
            tenderness over the center spine.  Dr. Writz saw claimant on 
 
            July 13, 1990.  He diagnosed acute muscular strain of the 
 
            right low back.  On examination, claimant had increased 
 
            muscle [spasm] in the right paravertebral area at 
 
            approximately L3.  Spasm relaxed when claimant was in the 
 
            prone position.  Straight leg raising was 90/90.  Sciatic 
 
            notch tenderness was not noted.  Dr. Writz released claimant 
 
            for work on July 30, 1990, with restrictions of limited 
 
            lifting, twisting and bending.  Claimant continued to work 
 
            in the face plating job he transferred to, in approximately 
 
            May 1989, until his termination in 1991.  A repeat MRI of 
 
            June 19, 1991 revealed a normal lumbar spine.  Claimant 
 
            underwent a functional capacities evaluation on June 27, 
 
            1990.  That evaluation placed claimant in the medium work 
 
            category indicating he was capable of lifting 50 pounds 
 
            infrequently and 25 pounds frequently.  The evaluator 
 
            interpreted the test as invalid on three grounds, namely:  
 
            1) poor correlation between claimant's subjective pain 
 
            rating and claimant's observed behavior; 2) six over 10 grip 
 
            strengths that were 15 percent or higher in coefficient of 
 
            variation; and 3) inconsistencies in floor to knuckle 
 
            lifting weights.  
 
            
 
                 On September 23, 1991, Dr. Writz opined that physical 
 
            examination, neurological examination and MRIs performed did 
 
            not reveal any permanent partial "disability" as a result of 
 
            claimant's July 5, 1990 back injury.  On January 2, 1990, 
 
            Dr. Norton opined that claimant had sustained significant 
 
            low back injury that had healed to "maximum abilities."  
 
            Norton opined that the motor vehicle accident in October 
 
            1988 had exacerbated claimant's low back pain but that the 
 
            major factor in claimant's back problems was claimant's 
 
            work.  On March 26, 1991, Dr. Norton assigned claimant a 5 
 
            percent permanent partial impairment rating under the AMA 
 
            Guides, Third Edition Revised, as result of unoperated 
 
            medically documented injury with a minimum of six months 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            medically documented pain, recurrent muscle spasm and 
 
            rigidity associated with none-to-minimal degenerative 
 
            changes on structural tests.
 
            
 
                 Daniel J. McGuire, M.D., a board certified orthopedic 
 
            surgeon, evaluated claimant on April 30, 1992.  Claimant's 
 
            spinal examination was benign.  Claimant was neurologically 
 
            intact; claimant's leg muscles were intact.  Claimant had 
 
            minor limits of range of motion on rotation and forward 
 
            flexion.  Claimant had positive signs of nerve root 
 
            irritation minimally on one physical test and negative signs 
 
            for nerve root irritation on three or four other tests.  
 
            McGuire interpreted claimant's June 19, 1992, MRI as normal 
 
            but for claimant having a smaller canal through which the 
 
            nerve roots exit the spinal cord.  McGuire opined that that 
 
            condition might make claimant more prone to nerve root 
 
            irritation and "a little" leg pain.  As of April 30, 1992, 
 
            McGuire noted claimant had no pain on back palpation, no 
 
            spasm, no warmth, no erythema, no deformity, no lesions, no 
 
            swelling or no scars in the low back area.  In his August 5, 
 
            1992 deposition  McGuire opined he had no reason to disagree 
 
            with Dr. Writz's September 23, 1991 opinion that claimant 
 
            had no permanent partial impairment as result of his July 5, 
 
            1990 injury.  McGuire saw no reason to restrict claimant's 
 
            activities but did recommend that claimant quit smoking and 
 
            enter an exercise program.  McGuire opined that soft tissue 
 
            injuries usually heal without permanency.  He opined that 
 
            Writz's restrictions of July 27, 1990, were probably 
 
            temporary restrictions.  McGuire disagreed with Dr. Norton's 
 
            assignation of 5 percent permanency rating stating that 
 
            under the AMA Guides, objective findings such as muscle 
 
            spasm and rigidity as well as pain are required and that 
 
            these findings are not present in claimant's case.  
 
            
 
                 Drs. Writz, Boarini and McGuire's opinions that 
 
            claimant has no permanency related to his incidents at 
 
            Swift, now known as Monfort, are accepted over Dr. Norton's 
 
            opinion of a 5 percent permanent partial impairment rating.  
 
            The record does not support that claimant has continued 
 
            problems with muscle spasm or rigidity as the 5 percent 
 
            rating under the AMA Guide requires. 
 
            
 
                  On May 11, 1992, Dr. McGuire opined that claimant's 
 
            subsequent injuries in 1988, 1989 and 1990 were 
 
            reoccurrences of injury and not aggravations of the 1987 
 
            incident.  Dr. McGuire further stated he did not believe 
 
            claimant had sustained any injury in 1987, in that claimant 
 
            demonstrated ability to return to work in 1988 and was 
 
            working as of May 1992.  
 
            
 
                 On August 31, 1992, Dr. McGuire opined that under new 
 
            NIOSH standards, claimant likely would not be allowed to 
 
            work in some of the heavy manual labor jobs he had held in 
 
            the past.  He reported:  "NIOSH is trying to make efforts to 
 
            look at reasonable job classifications and body habitus to 
 
            see if it is realistic for them to do some certain type of 
 
            jobs."  The remark is found to relate to claimant's overall 
 
            stature and physical abilities and not to relate to any 
 
            residuals of claimant's alleged work incidents.
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
                 Kent A. Jayne, filed a preliminary vocational 
 
            assessment report on July 23, 1992 and testified at hearing.  
 
            Mr. Jayne assessed claimant vocationally while using  the 
 
            medium work classification of the functional capacity 
 
            evaluation performed June 27, 1991.  He admitted he did not 
 
            question the reliability of the capacities evaluation.  
 
            Jayne opined that claimant has a 65 to 75 percent loss of 
 
            his pre-injury job market access which Jayne attributed to 
 
            the alleged work injuries.  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Our first concern is whether claimant has established 
 
            injuries arising our of and in the course of his employment 
 
            on April 1, 1989 and May 12, 1989.  
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            
 
                 McClure v. Union County, 188 N.W.2d 283 (Iowa 1971). ust be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 Initially, claimant has not established a specific 
 
            incident of injury on April 1, 1989.  Claimant has no 
 
            specific recall of any incident of that date and medical 
 
            records do not support an incident of that date.  While 
 
            claimant apparently does not specifically recall any 
 
            incident of May 12, 1989, medical evidence is sufficient to 
 
            establish an exacerbation of back pain on or about that date 
 
            such that an incident of injury is established relative to 
 
            that date.  Claimant's claim relative to any specific 
 
            incident of injury of May 12, 1989, is barred, however, on 
 
            account of claimant's failure to file his claim for benefits 
 
            within two years of the alleged date of injury as required 
 
            under section 85.26 (1) for arbitration proceedings.  
 
            Claimant's original notice and petition was filed on June 5, 
 
            1991.  That date is more than two years subsequent to the 
 
            alleged May 12, 1989 injury.  The record does not establish 
 
            that the discovery rule would have tolled the statute.  
 
            While claimant is of limited education and intelligence, 
 
            claimant was seeking chiropractic and medical treatment from 
 
            1987 onward.  Given such, claimant as a reasonable person 
 
            should have recognized the nature, seriousness and probable 
 
            compensable character of his condition reasonably near the 
 
            alleged May 12, 1989 injury date.  See Orr v. Lewis Central 
 
            School District, 298 N.W.2d 256 (Iowa 1989); Robinson v. 
 
            Dept. of Transportation, 296 N.W.2d 809 (Iowa 1980).  
 
            
 
                 Claimant apparently argues in the alternative that all 
 
            of claimant's alleged incidents from May 12, 1987 through 
 
            July 5, 1990, were manifestations of one cumulative trauma 
 
            injury.  The record does not support claimant's claim.  Dr. 
 
            McGuire has opined that claimant's subsequent injuries, 
 
            including his motor vehicle accident in 1988, were 
 
            reoccurrences of injury and not aggravations of the 1987 
 
            injury.  Further, claimant does not now demonstrate any 
 
            objective signs of permanent injury on account of his work.  
 
            Claimant has subjective complaints of back pain.  His 
 
            medical examinations subsequent to his specific incidents of 
 
            pain do not support continuing objective findings, however.  
 
            Only Dr. Norton opines claimant has a permanent condition 
 
            related to his work injuries.  Dr. Norton's opinion is given 
 
            less weight than the opinion of physicians Writz, McGuire, 
 
            and Boarini all of whom maintain claimant has no permanent 
 
            condition or injury related to his series of back incidents 
 
            at Monfort.  Findings on objective testing and objective 
 
            studies are more consistent with the medical physicians' 
 
            opinions than with the chiropractic physician's opinion.
 
            
 
                 We next consider the question of causal relationship 
 
            between any claimed injury and claimed disability relative 
 
            to the May 12, 1987 and July 5, 1990 stipulated injuries.  
 
            
 
                 Initially, the parties agree that a causal relationship 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            exists between claimant's July 5, 1990 injury and claimed 
 
            temporary total disability.  It is unclear as to whether the 
 
            parties dispute any causation between claimant's May 12, 
 
            1987 injury and any claimed temporary total disability.  
 
            Form 2As in the file demonstrate that claimant was paid 
 
            temporary total disability benefits during Fall 1987.  
 
            Claimant has not presented evidence showing claimant is 
 
            entitled to temporary total disability in addition to those 
 
            benefits defendants have already paid on account of the May 
 
            12, 1987 injury.  Hence, it is found that claimant is not 
 
            entitled to any additional temporary total disability 
 
            benefits causally related to the May 12, 1987 injury.  
 
            
 
                 Claimant's claims of permanent disability related to 
 
            the May 12, 1987 and July 5, 1990 injuries must fail for 
 
            reasons recited above.  Claimant's subjective complaints of 
 
            pain are insufficient of themselves to carry the causation 
 
            burden.  Only Dr. Norton has found permanent impairment and 
 
            related that permanent to claimant's work injury.  As noted 
 
            Drs. McGuire, Boarini, and Writz find no permanent injury or 
 
            impairment related to claimant's work incidents.  As was 
 
            noted, the medical physicians' opinions are more consistent 
 
            with claimant's objective findings and diagnostic studies 
 
            than are the chiropractor's opinion.  Claimant has not 
 
            established a causal relationship between his established 
 
            injuries of May 12, 1987 and July 5, 1990 and any permanent 
 
            impairment or disability.  
 
            
 
                 We consider the question of the nature and extent of 
 
            any disability in passing while noting that claimant has not 
 
            established permanent disability or impairment.  Initially, 
 
            the record suggests that claimant is claiming entitlement to 
 
            additional temporary total disability benefits on account of 
 
            the July 30, 1990 injury.  Temporary total disability 
 
            benefits were apparently paid claimant until his July 30, 
 
            1990, work return subsequent to the July 5, 1990 injury.  
 
            Temporary total disability benefits are payable to an 
 
            injured worker who has not suffered permanent partial 
 
            disability until the worker has returned to work or the 
 
            worker is medically capable of employment substantially 
 
            similar to the employment engaged in when injured whichever 
 
            first occurred.  Section 85.33 (1).  Claimant returned to 
 
            work on July 30, 1990.  The record suggests a possibility 
 
            claimant may not have been at maximum medical healing as of 
 
            that date although Dr. Writz has opined that he had achieved 
 
            maximum medical benefit as of that date.  Regardless, 
 
            claimant's return to work ended his period of temporary 
 
            total disability.  His dismissal from that work for reasons 
 
            not related to his work injury does not reinstate a period 
 
            of temporary total disability.  
 
            
 
                 As regards the nature and extend question, claimant 
 
            apparently raises an inference that claimant is entitled to 
 
            permanent industrial disability benefits in that claimant 
 
            has had work injuries which prevent his returning to the 
 
            type of work he did at Monfort.  Loss of earnings caused by 
 
            job transfer for reasons related to the injury or injuries 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            is relevant in assessing industrial disability.  This record 
 
            does not establish any loss of earnings caused by job 
 
            transfer for reasons related to the injury, however.  
 
            Initially, when claimant stopped pulling hides in Summer 
 
            1989, claimant's disengagement from that task appears more 
 
            related to claimant's inability to engage in that task 
 
            without experiencing back pain and discomfort on account of 
 
            his slight stature.  That inability relates to claimant's 
 
            overall physical condition and not to any work incident or 
 
            injury.  Likewise, Dr. McGuire appears to be referencing to 
 
            that slight stature when he opines in August 1992, that 
 
            under new NIOSH standards claimant would likely not be 
 
            permitted to do heavy labor manual jobs as he has in the 
 
            past.  Initially, claimant did not receive any job transfer 
 
            for reasons related to the injury subsequent to his July 5, 
 
            1990 injury.  Claimant returned to his regular duties on 
 
            July 30, 1990, and continued in those duties until 
 
            terminated for nonwork related reasons in January 1991.  Any 
 
            current inability to engage in heavy physical labor must be 
 
            related to claimant's overall physiology and not to any 
 
            alleged work injury.  Hence, this is not a case where a job 
 
            transfer for reasons related to the injury has caused 
 
            claimant a loss of earning.  
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant take nothing further from these proceedings.
 
            
 
                 Claimant pay costs of these proceedings.
 
            
 
                 Signed and filed this ____ day of November, 1992.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          HELENJEAN M. WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Marc Humphrey
 
            Attorney at Law
 
            5001 S.W. Ninth St.
 
            Des Moines, IA  50315
 
            
 
            Mr. David E. Linquist
 
            Attorney at Law
 
            3708 75th St.
 
            Des Moines, IA   50322
 
            
 
            Mr. Timothy W. Wegman
 
            Attorney at Law
 
            218 Sixth Ave., Suite 300
 
            P.O. Box 9130
 
            Des Moines, IA  50309
 
            
 
            
 
            
 
            
 
            
 
            
 
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            ROGER D. WRIGHT,      
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                            File Nos. 868055/969207
 
            NISHNA PRODUCTIONS, INC.,       
 
                                                  A P P E A L
 
                 Employer,   
 
                                               D E C I S I O N
 
            and         
 
                        
 
            IOWA SMALL BUSINESS EMPLOYERS,  
 
            and AETNA CASUALTY & SURETY,    
 
                        
 
                 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.
 
            
 
                                   ISSUES
 
            
 
            The issues on appeal are whether claimant's alleged 
 
            disability is causally connected to an injury on November 
 
            16, 1986, when the employer's insurer was Iowa Small 
 
            Business Employers, or to an alleged injury on October 25, 
 
            1990 when the employer's insurer was Aetna Casualty & 
 
            Surety; and whether penalty benefits should be awarded 
 
            pursuant to Iowa Code section 86.13.
 
            
 
                             FINDINGS OF FACT
 
            
 
            The findings of fact contained in the proposed agency 
 
            decision filed July 8, 1993 are adopted as set forth below.  
 
            Segments designated by asterisks (*****) indicate portions 
 
            of the language from the proposed agency decision that have 
 
            been intentionally deleted and do not form a part of this 
 
            final agency decision.  Segments designated by brackets ([ 
 
            ]) indicate language that is in addition to the language of 
 
            the proposed agency decision.
 
            
 
                 Roger Wright is a 45-year-old married man who graduated 
 
            from high school and has completed some post-high school 
 
            business education at the college level.  Roger has a varied 
 
            work history.  He was head of the automotive department in a 
 
            Pamida-Gibson store.  He has experience in the grocery store 
 
            business, including as a produce manager and also as a night 
 
            manager.  He has sold hobby, craft and art supplies in a 
 
            three-state region.  
 
            
 
                 Roger commenced his employment with Nishna Productions, 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Inc., in September 1985.  The employer is a shelter workshop 
 
            for mentally or physically disabled individuals.  Roger's 
 
            job was to solicit work for the disabled individuals, 
 
            oversee the work and return the finished product to the 
 
            customers.  Most of Roger's work involved little in the way 
 
            of physical exertion, but on occasion he would perform 
 
            activities such as driving trucks and handling product.  
 
            Roger was initially hired to be a truck driver but in one 
 
            year was promoted to the position of procurement 
 
            coordinator.
 
            
 
                 Roger's health history regarding his back is 
 
            unremarkable until on or about November 18, 1986, when he 
 
            injured his back while moving a large metal desk.  
 
            Chiropractic care and physical therapy was provided without 
 
            success.  Eventually, Roger came under the care of 
 
            neurosurgeon Behrouz Rassekh, M.D., who diagnosed him as 
 
            having a herniated disc.  On September 17, 1987, surgery was 
 
            performed for the herniated lumbar disc at the L5-S1 level 
 
            of Roger's spine, on the left side (exhibit 11, pages 1 & 6; 
 
            ex. 12, p. 7).  
 
            
 
                 Following the surgery, Roger's condition improved.  
 
            Roger was released to return to his normal occupation 
 
            effective November 30, 1987, with a restriction against 
 
            heavy lifting (ex. 11, p. 7; ex. 12, p. 22).  Dr. Rassekh 
 
            rated Roger as having a 5 to 10 percent permanent functional 
 
            disability or permanent impairment of his whole body 
 
            following the first surgery (ex. 11, p. 9; ex. 12, p. 24).
 
            
 
                 Roger did in fact resume his normal work.  He 
 
            experienced a recurrence of his pre-surgical symptoms and 
 
            returned to Dr. Rassekh.  Diagnostic testing showed disc 
 
            material believed to represent a free fragment.  A second 
 
            surgery was performed on May 17, 1988 (ex. 11, p. 14).  
 
            During the surgical process scar tissue was noted and the 
 
            nerve root had adhered to the epidural space.  Additionally, 
 
            a large disc extrusion was found and several large extruded 
 
            fragments were removed (ex. 11, p. 14; ex. 12, p. 8).  Dr. 
 
            Rassekh characterized the second surgery as being a 
 
            continuation of the same injury which was originally 
 
            sustained in 1986 (ex. 11, p. 16; ex. 12; pp. 8, 9, 23, 38, 
 
            & 39).  Roger was released to return to work effective 
 
            August 8, 1988, with a 10 percent functional disability 
 
            rating and with advice to avoid heavy lifting and repeated 
 
            bending (ex. 11, pp. 17-18; ex. 12, p. 24).
 
            
 
                 Roger resumed his normal employment and again 
 
            experienced a recurrence of his pre-surgery symptoms.  He 
 
            returned to Dr. Rassekh a third time.  Diagnostic testing 
 
            was conducted and on April 20, 1989, a third laminectomy 
 
            surgery was performed.  The operative report again shows the 
 
            existence of the nerve root having adhered to the epidural 
 
            space and additional degenerative disc fragments (ex. 11, 
 
            pp. 26-27; ex. 12, pp. 9, 10 & 11).  Dr. Rassekh opined that 
 
            the third surgery was a continuation of the original 1986 
 
            injury (ex. 12, pp. 12-13).  He explained that surgery does 
 
            not remove all disc material and that anyone who has had 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            disc surgery has a 5 to 10 percent chance of recurrence.  
 
            There was no identified intervening trauma to which either 
 
            the second or third surgeries could be attributed (ex. 12, 
 
            pp. 41-42).  Dr. Rassekh released Roger to return to work 
 
            effective August 28, 1989, with a restriction against 
 
            lifting more than 50 pounds (ex. 11, p. 29; ex. 12, pp. 24 & 
 
            30).  A subsequent report changed the restriction to 50 to 
 
            70 pounds and estimated Roger to have a 10 to 15 percent 
 
            permanent functional disability (ex. 11, p. 30; ex. 12, p. 
 
            24).  Dr. Rassekh felt that the third surgery was related to 
 
            the original injury that occurred in 1986 (ex. 12, p. 27).  
 
            
 
                 Roger resumed his work with Nishna Productions, Inc., 
 
            and, as before, complied with the recommended activity 
 
            restrictions.  At times Roger drove a truck.  On occasion he 
 
            handled samples and product.  It would not have been unusual 
 
            for him to handle weights in the range of 25 or 30 pounds on 
 
            an occasional basis.  There is nothing in the record to 
 
            indicate that he did any type of repetitive bending or 
 
            lifting at any time or exceeded Dr. Rassekh's activity 
 
            restrictions.  
 
            
 
                 On or about October 25, 1990, Roger began experiencing 
 
            an increase in his symptoms.  He noticed some increase late 
 
            in the work day of October 25, 1990.  He notice a particular 
 
            increase in symptoms while he was driving a truck after 
 
            leaving work on October 26, 1990.  His pain increased during 
 
            the evening of October 26 to the point that he sought 
 
            medical care early on October 27, 1990.  Further diagnostic 
 
            testing was conducted and a fourth surgery was then 
 
            performed on October 31, 1990.  The surgical findings were 
 
            similar to those found at the times of the second and third 
 
            surgeries.  An extruded disc fragment was found to be 
 
            impinging upon a nerve root.  Scar tissue was removed.  Dr. 
 
            Rassekh could not be certain but he felt that it was most 
 
            likely that the disc material had migrated from the L5-S1 
 
            interspace to cause the surgical problem (ex. 11, p. 32; ex. 
 
            12, pp. 17-18).  
 
            
 
                 As occurred prior to the second and third surgeries, 
 
            there was no particular incident of an acute identifiable 
 
            trauma which precipitated the onset of Roger's increased 
 
            symptoms.  There are some indications in the record that he 
 
            may have been experiencing increased symptoms a day or two 
 
            before October 25.  Roger could not attribute his increased 
 
            symptoms to any particular activity or event though he did 
 
            recall lifting moderate weights and driving a truck.  
 
            
 
                 Following recuperation from the fourth surgery, Dr. 
 
            Rassekh released Roger to return to work effective March 13, 
 
            1991, with a restriction against lifting more than 50 pounds 
 
            (ex. 11, p. 44; ex. 12, pp. 31-32).  Dr. Rassekh rated 
 
            claimant as having a 20 percent permanent partial disability 
 
            following the fourth surgery (ex. 12, p. 32).
 
            
 
                 In a report dated April 15, 1991, Dr. Rassekh related 
 
            that claimant's symptoms in October 1990 were not directly 
 
            related to an accidental injury (ex. 11, p. 45).  In a 
 
            report dated January 15, 1991, Dr. Rassekh stated that he 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            believed claimant had a recurrent disc herniation at the 
 
            site of the previous L5-S1 surgery (ex. 11, p. 38).  
 
            
 
                 Dr. Rassekh stated that there is no doubt but that 
 
            Roger's fourth surgery was related to work.  He stated that 
 
            the situation was an aggravation of a preexisting condition 
 
            and that nearly anything could have necessitated the fourth 
 
            surgery in view of the fact of three prior surgeries.  Dr. 
 
            Rassekh stated that the cause could be lifting, coughing or 
 
            a combination of the two.  He related that driving could 
 
            have done it.  He stated that without the preexisting 
 
            condition, namely the original injury and three prior 
 
            surgeries, that it is unlikely that claimant would have had 
 
            a disc herniation and surgery in 1990.  He stated that the 
 
            disc herniation occurred when the radicular pain started.  
 
            Dr. Rassekh was questioned extensively about whether 
 
            lifting, truck driving or repetitive activities were a 
 
            "substantial" factor in producing the need for the fourth 
 
            surgery.  Dr. Rassekh indicated that he was uncertain of 
 
            what was meant by the term "substantial" but he 
 
            characterized all those activities as "contributing" 
 
            factors.  He related that claimant's recurrence could have 
 
            occurred without any of those activities.  Dr. Rassekh kept 
 
            relating back to the fact of the original injury and 
 
            previous surgeries as an important cause for the fourth 
 
            surgery. (ex. 12, pp. 19-21, 28, 49-55).
 
            
 
                 Dr. Rassekh related that Roger now has residual L5-S1 
 
            root problems and chronic discomfort in his back.  He felt 
 
            that he would have residual numbness and loss of ankle 
 
            reflex (ex. 12, pp. 48-49).
 
            *****
 
            
 
                 Claimant's records were evaluated by neurologist Joel 
 
            T. Cotton, M.D.  [Dr. Cotton's letter report was dated 
 
            August 20, 1992 (def. ex. A) and his deposition was taken 
 
            March 9, 1993 (def. ex. D)]  Dr. Cotton opined that the need 
 
            for Roger's fourth surgery was the natural progression of 
 
            his long-standing history of recurrent back pain and 
 
            recurring disc herniation (ex. D, p. 16).  He felt that the 
 
            1986 accident was significantly contributory to the fourth 
 
            surgery (ex. D, p. 56).  He felt that lifting was not a 
 
            substantial factor nor was driving the van, but that 
 
            coughing was a substantial factor in bringing about the 
 
            fourth surgery (ex. D, p. 50).  Dr. Cotton agreed that a 
 
            cough would not cause a ruptured disc in a normal person 
 
            (ex. D, p. 39).  Dr. Cotton based his opinion strongly on 
 
            the fact that lifting and driving a van were not contained 
 
            in the medical history recorded when Roger first sought 
 
            medical care at the emergency room on October 27, 1990.  
 
            *****
 
            
 
                 It is found that Roger engaged in a number of 
 
            activities leading up to his fourth surgery but he did not 
 
            engage in repetitive activity.  There is no evidence of him 
 
            performing anything which could even be remotely termed as 
 
            repetitive activity.  While cumulative trauma need not 
 
            necessarily result from something as repetitive as an 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            assembly line process, it does require some sort of repeated 
 
            activity which is somewhat traumatic by providing repeated 
 
            impacts or stresses.  No such activity appears in the record 
 
            of this case.  Dr. Cotton expressly attributes Roger's 
 
            fourth surgery to the 1986 injury.  Dr. Rassekh repeatedly 
 
            makes reference to the preexisting condition, namely the 
 
            1986 injury and three prior surgeries.  It is important to 
 
            note that Dr. Rassekh had expressly related each of the 
 
            first three surgeries to the 1986 injury (ex. 12, pp. 13, 23 
 
            & 24).  The fourth incident was very similar to the second 
 
            and third.  There is no identifiable incident of trauma 
 
            which marked the onset of increased symptoms.  The surgery 
 
            revealed scarring and disc fragments.  The greater weight of 
 
            the evidence in this case clearly shows that the fourth 
 
            surgery was a sequela of the 1986 injury.  It was not 
 
            brought about by intervening trauma.  The principle reason 
 
            why the fourth surgery became necessary was the fact of the 
 
            original injury, scarring and migrating disc fragments, all 
 
            resulting from that original injury and from the prior 
 
            surgeries following that 1986 injury.  Coughing, lifting or 
 
            driving the van may have played some part in affecting the 
 
            rate at which the symptoms increased but none of those 
 
            activities which appear in the record in this case appear to 
 
            be significantly traumatic.  They are not events of 
 
            sufficient magnitude to break the chain of causation between 
 
            the original injury and the fourth surgery.  The fourth 
 
            surgery showed no evidence of a new herniation and it showed 
 
            scarring from the previous surgeries.  The most likely 
 
            origin for the disc material was residual material left over 
 
            from the prior surgeries.  The original 1986 injury is 
 
            clearly the most significant and substantial factor 
 
            responsible for bringing about the fourth surgery.  
 
            *****
 
            
 
                 At about the same time as Dr. Rassekh was releasing 
 
            Roger to return to work, his employment was terminated by 
 
            his employer.  The two reasons given were to protect Roger 
 
            from further injury and also because of a rule that the 
 
            employer had adopted which permitted termination of 
 
            individuals who were off work for more than 90 days.  There 
 
            is nothing in the record which indicates that the employer 
 
            was legally mandated or obligated to adopt such a rule or 
 
            that it could not have provided exceptions to the rule.  
 
            There is no indication that it had ever been used to 
 
            terminate the employment of any other employee.  Dr. Rassekh 
 
            indicated that returning to work within the restrictions he 
 
            had recommended would not increase the risk that further 
 
            problems would arise (ex. 12, p. 61).  No evidence to the 
 
            contrary is in the record of this case.  It is found that 
 
            the employer in this case voluntarily chose to not restore 
 
            Roger to his employment.  For purposes of this decision, 
 
            further findings regarding the motivation for the 
 
            termination of employment need not be made.
 
            *****
 
           
 

 
            
 
            Page   6
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
            The conclusions of law contained in the proposed agency 
 
            decision filed July 8, 1993 are adopted as set forth below.  
 
            Segments designated by asterisks (*****) indicate portions 
 
            of the language from the proposed agency decision that have 
 
            been intentionally deleted and do not form a part of this 
 
            final agency decision.  Segments designated by brackets ([ 
 
            ]) indicate language that is in addition to the language of 
 
            the proposed agency decision.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 The occurrence of the 1986 injury is well established 
 
            and is not seriously disputed.  *****  Dr. Rassekh supports 
 
            the causal connection between the activity of moving the 
 
            desk and the herniated disc and the first surgery.  There is 
 
            no substantial evidence in the record to the contrary.  It 
 
            is therefore determined that Roger Wright sustained an 
 
            injury which arose out of and in the course of his 
 
            employment with Nishna Productions, Inc., on November 18, 
 
            1986. 
 
            
 
                 Following that injury Roger has undergone four 
 
            surgeries.  The first surgery was directly caused by that 
 
            original injury.  The second, third and fourth surgeries 
 
            were all likewise proximately caused by that original 1986 
 
            injury. 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 The second, third and fourth surgeries could possibly 
 
            be called aggravations of the preexisting condition but in 
 
            any event, they are all sequela of the original injury.  It 
 
            is important to note that there has been no evidence of any 
 
            significant intervening trauma.  The findings at surgery 
 
            were of scarring and further disc fragments at the levels of 
 
            the spine affected by the original injury.  The evidence in 
 
            this case clearly shows a direct chain of causation between 
 
            the original injury and the fourth surgery.  Roger's 
 
            employer, Nishna Productions, Inc., is therefore responsible 
 
            for the results of that fourth surgery, namely the medical 
 
            expenses, healing period and permanent partial disability 
 
            compensation.  
 
            
 
                 The well recognized rule of law is that when the 
 
            primary injury is shown to have arisen out of and in the 
 
            course of employment, every natural consequence that flows 
 
            from the injury likewise arises out of the employment unless 
 
            it is the result of an independent intervening cause.  1 
 
            Larson, section 13.00.  As noted in the foregoing cases 
 
            which are cited, simple activities or events such as 
 
            sneezing, picking up laundry and the like are not 
 
            substantial traumas and do not injure a healthy, normal 
 
            individual.  If a person's back has been injured so severely 
 
            by an industrial accident that innocuous activities such as 
 
            sneezing, picking up laundry or the like, produces a 
 
            situation which requires surgery and substantial medical 
 
            treatment, it is clear that the proximate cause is not the 
 
            sneeze or the laundry, it is the original injury which 
 
            weakened the back and made it fragile.  In this case, there 
 
            were a number of seemingly innocuous activities which might 
 
            have precipitated that need for the fourth surgery.  Lifting 
 
            and driving the van were both work-related activities which 
 
            would have, by themselves, placed responsibility on the 
 
            employer if they were used as the basis.  If this were a 
 
            cumulative trauma situation that, by itself, would make the 
 
            employer liable.  The overwhelmingly greater weight of the 
 
            evidence in this case does not, however, establish that any 
 
            particular event or cumulative trauma brought about the need 
 
            for the fourth surgery.  The evidence places it upon the 
 
            progression and sequela of the original 1986 injury.  
 
            [Claimant's current disability is a result of an original 
 
            injury occurring in November 1986 and the proximate result 
 
            of the original injury.  Claimant's four surgeries were a 
 
            proximate result of the original injury.  The employer's 
 
            insurer at the time of the original injury was Iowa Small 
 
            Business Employers.  That insurer is liable for claimant's 
 
            disability.]
 
            
 
                 Section 85.34(1) provides that healing period benefits 
 
            are payable to an injured worker who has suffered permanent 
 
            partial disability until (1) the worker has returned to 
 
            work; (2) the worker is medically capable of returning to 
 
            substantially similar employment; or (3) the worker has 
 
            achieved maximum medical recovery.  The healing period can 
 
            be considered the period during which there is a reasonable 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            expectation of improvement of the disabling condition.  See 
 
            Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa 
 
            Ct. App. 1981).  Healing period benefits can be interrupted 
 
            or intermittent.  Teel v. McCord, 394 N.W.2d 405 (Iowa 
 
            1986).  The healing period under section 85.34(1) commences 
 
            on October 27, 1990, as requested by claimant and terminates 
 
            on March 12, 1991.  The healing period is a span of 19 4/7 
 
            weeks. 
 
            *****
 
            
 
                 Since claimant has an impairment to the body as a 
 
            whole, an industrial disability has been sustained.  
 
            Industrial disability was defined in Diederich v. Tri-City 
 
            Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (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, motivation, loss of earnings, severity and situs 
 
            of the injury, work restrictions, inability to engage in 
 
            employment for which the employee is fitted and the 
 
            employer's offer of work or failure to so offer.  Olson v. 
 
            Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); 
 
            Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 
 
            (1961).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 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.  Bearce v. FMC Corp., 465 N.W.2d 531 
 
            (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 
 
            1974); 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, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            218 (1979); 2 Larson Workmen's Compensation Law, sections 
 
            57.21 and 57.31.
 
            
 
                 When considering Roger's loss of access to the job 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            market, reduction in hourly rate of earnings, his high level 
 
            of motivation, and all the material factors of industrial 
 
            disability, it is determined that Roger has a 35 percent 
 
            permanent partial disability as a result of the November 18, 
 
            1986 injury.  Employer has previously paid Roger 75 weeks of 
 
            compensation for permanent partial disability at the correct 
 
            rate of $171.14 per week.  This is equivalent to a 15 
 
            percent permanent partial disability.  Roger is therefore 
 
            entitled to receive an additional 20 percent permanent 
 
            partial disability, an amount equivalent to 100 weeks of 
 
            compensation.  In making this determination, it is noted 
 
            that an employer's determination that an employee is not 
 
            economically feasible to employ due to results of an injury 
 
            is given a great deal of weight.  It is strong evidence of a 
 
            high degree of disability.  2 Larson, Workmen's 
 
            Compensation, section 57.61 et. seq.
 
            
 
                 The issue of apportionment was raised.  It is not 
 
            appropriate in this case since all the disability arose as a 
 
            result of the initial injury and all the disability arose 
 
            from the employment with the same employer.  Tussing v. Geo. 
 
            Hormel and Co., 461 N.W.2d 450 (Iowa 1990).
 
            Claimant seeks to recover a penalty under the fourth 
 
            unnumbered paragraph of Code section 86.13.  Section 86.13 
 
            permits an award of up to 50 percent of the amount of 
 
            benefits delayed or denied if a delay in commencement or 
 
            termination of benefits occurs without reasonable or 
 
            probable cause or excuse.  The standard for evaluating the 
 
            reasonableness of defendants' delay in commencement or 
 
            termination is whether the claim is fairly debatable.  Where 
 
            a claim is shown to be fairly debatable, defendants do not 
 
            act unreasonably in denying payment.  [Covia v. Robinson, 
 
            507 N.W.2d 411 (Iowa 1993)]  *****
 
            *****
 
            [The parties stipulated that claimant was paid 75 weeks of 
 
            compensation prior to the hearing.  It is not readily 
 
            apparent when these benefits were paid.  Because both of the 
 
            employer's insurers denied claimant's claim for benefits 
 
            following the October 1990 incident (see claimant's ex. 36; 
 
            cl. ex. 37; and claimant's motion for evidentiary hearing 
 
            under section 85.21 filed April 4, 1991), it is reasonable 
 
            to conclude that none of the benefits paid were weekly 
 
            benefits for a period after October 1990.  It is also not 
 
            readily apparent whether the 75 weeks previously paid were 
 
            for permanent partial disability benefits or some other type 
 
            of weekly benefits.  As was discussed above, for purposes of 
 
            this decision it will be assumed that the 75 weeks 
 
            previously paid were for permanent partial disability 
 
            benefits, representing a 15 percent permanent partial 
 
            disability.
 
            The fact that claimant would be entitled to additional 
 
            permanent partial disability benefits is not fairly 
 
            debatable.  The facts in this case clearly indicate that 
 
            claimant's industrial disability increased after his fourth 
 
            surgery.  Those facts were known at the time weekly benefits 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            should have been paid.  Those facts include the following.  
 
            Claimant had a fourth surgery on his lower back.  Dr. 
 
            Rassekh, the treating physician, increased claimant's 
 
            functional impairment rating.  When released to return to 
 
            work after the fourth surgery he had lifting restrictions.  
 
            The employer terminated claimant's employment effective 
 
            immediately on March 8, 1991 due to "on-going physical 
 
            problems" (cl. ex. 39).  This termination occurred prior to 
 
            claimant's release to return to work (cl. ex. 11, p. 44).  
 
            Dr. Cotton's opinions can hardly be relied upon for 
 
            justification for delaying payment of benefits.  His 
 
            evaluation was not conducted until August 20, 1992, 
 
            approximately 17 months after claimant's healing period 
 
            ended.]
 
            
 
                 There is no good faith dispute with regard to the 
 
            employer's liability for the healing period.  *****  It is 
 
            concluded that in this case, it was unreasonable to have not 
 
            paid at least 125 weeks of permanent partial disability 
 
            representing a 25 percent permanent partial disability.  
 
            With an impairment rating of 20 percent and a determination 
 
            by the employer that it was not economically feasible to 
 
            continue to employ the claimant, 25 percent is a very modest 
 
            assessment of the degree of industrial disability.  
 
            
 
                 It was only through the claimant's extreme motivation, 
 
            taking additional training in the form of preparation for 
 
            the insurance examinations and working one and one-half 
 
            times as many hours as he worked at Nishna Productions, 
 
            Inc., that he has been able to achieve his current rate of 
 
            income.  His hourly rate of income is actually less than 
 
            what it was when he was employed by Nishna Productions, Inc.  
 
            He has a large loss of access to portions of the job market 
 
            which were previously available to him and in which he had 
 
            worked prior to the injury.  As previously stated, 25 
 
            percent is a very modest assessment of his disability.
 
            
 
                 The failure to have paid at least 25 percent permanent 
 
            partial disability was unreasonable.  After giving credit 
 
            for the 15 percent permanent partial disability previously 
 
            paid, the balance of 10 percent or 50 weeks was unreasonably 
 
            denied.  When added with the healing period, the total is 69 
 
            4/7 weeks of weekly compensation which were unreasonably 
 
            denied.  Fifty percent of that amount is slightly more than 
 
            34.75 weeks.  It is therefore concluded that the claimant is 
 
            entitled to recover 34.75 weeks of additional compensation 
 
            as a penalty under the fourth unnumbered paragraph of Code 
 
            section 86.13.  
 
            A near maximum penalty is imposed in this case due to the 
 
            fact that the employer's liability was abundantly clear and 
 
            the claimant experienced severe financial hardship as a 
 
            result of the decision to deny his claim.  [Iowa Code 
 
            section 85.21 clearly provides a legal mechanism for an 
 
            insurer to pay benefits in a timely manner and seek 
 
            reimbursement from another insurer.  It was unreasonable for 
 
            one insurer to delay payment of benefits to claimant when 
 
            this legal mechanism was present.  While it might have been 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            fairly debatable which insurer was liable, it was not fairly 
 
            debatable that claimant was owed benefits.]  Claimant was 
 
            forced to obtain legal counsel in order to obtain benefits 
 
            which should have been voluntarily paid to him.  *****  The 
 
            total penalty assessed computes to $5,947.11.
 
            *****
 
            
 
                 In view of determination that the fourth surgery was 
 
            proximately caused by the original injury and not by any 
 
            intervening trauma the entire liability falls upon the 
 
            insurance carrier, Iowa Small Business Employers.  Aetna 
 
            Casualty and Surety Company has no liability in this case.
 
            WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                  ORDER
 
            
 
            THEREFORE, it is ordered:
 
            
 
                 That Nishna Productions, Inc., and Iowa Small Business 
 
            Employers pay Roger D. Wright nineteen and four-sevenths (19 
 
            4/7) weeks of compensation for healing period at the rate of 
 
            one hundred seventy-one and 14/100 dollars ($171.14) per 
 
            week payable commencing October 27, 1990.
 
            
 
                 That Nishna Productions, Inc., and Iowa Small Business 
 
            Employers pay Roger D. Wright an additional one hundred 
 
            (100) weeks of compensation for permanent partial disability 
 
            at the rate of one hundred seventy-one and 14/100 dollars 
 
            ($171.14) per week payable commencing March 13, 1991.  
 
            That defendants, Nishna Productions, Inc. and Iowa Small 
 
            Business Employers, shall pay accrued weekly benefits in a 
 
            lump sum.
 
            
 
                 That Nishna Productions, Inc., and Iowa Small Business 
 
            Employers pay claimant the sum of five thousand nine hundred 
 
            forty-seven and 11/100 dollars ($5,947.11) representing a 
 
            fifty percent (50%) penalty under the provisions of the 
 
            fourth unnumbered paragraph of Iowa Code section 86.13 for 
 
            benefits unreasonably delayed.
 
            
 
                 That defendants, Nishna Productions, Inc., and Iowa 
 
            Small Business Employers, pay the following medical 
 
            expenses:
 
            
 
                 Behrouz Rassekh, M.D.             $ 3,120.00
 
                 Gary DeBoss, M.D.                     340.00
 
                 Mercy Hospital                      7,711.85
 
                 Mercy Anesthesia Assoc.               429.00
 
                 Jennie Edmondson Hospital              64.00
 
                 Jennie Edmondson Hospital             585.50
 
                 Drug Town                             272.42
 
                 Midlands Radiology                    155.00
 
                 Judy Brookover                        336.50
 
                                          TOTAL    $13,014.27
 
            
 
                 That the claims against Aetna Casualty and Surety 
 
            Company made in file number 969290 are dismissed and that 
 
            Aetna Casualty and Surety has no liability in this matter.  
 
            
 
                 That defendants, Nishna Productions, Inc., and Iowa 
 
            Small Business Employers, shall pay the costs of this matter 
 
            including transcription of the hearing and shall reimburse 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            claimant for the filing fee if previously paid by claimant.
 
            
 
                 That Nishna Productions, Inc., and Iowa Small Business 
 
            Employers file claim activity reports as requested by this 
 
            agency pursuant to rule 343 IAC 3.1.
 
            Signed and filed this ____ day of February, 1994.
 
            
 
            
 
            
 
            
 
                                      ________________________________
 
                                               BYRON K. ORTON
 
                                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Michael Sciortino
 
            Attorney at Law
 
            221 S. Main
 
            Council Bluffs, Iowa  51503
 
            
 
            Mr. Gene R. LaSuer
 
            Ms. Becky S. Knutson
 
            666 Walnut, STE 2500
 
            Des Moines, Iowa  50309-3993
 
            
 
            Ms. Rita Grimm
 
            Attorney at Law
 
            701 Pierce STE 200
 
            P.O. Box 3086
 
            Sioux City, Iowa  51102
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                      1108.50; 1402.30; 2207; 2206;
 
                                      1401.20; 4000.2
 
                                      Filed February 28, 1994
 
                                      Byron K. Orton
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            ROGER D. WRIGHT,      
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                               File Nos. 868055/969207
 
            NISHNA PRODUCTIONS, INC.,       
 
                                                     A P P E A L
 
                 Employer,   
 
                                                   D E C I S I O N
 
            and         
 
                        
 
            IOWA SMALL BUSINESS EMPLOYERS,  
 
            and AETNA CASUALTY & SURETY,    
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            
 
            1108.50; 1402.30; 2207; 2206
 
            Claimant who suffered an initial original injury in 1986 
 
            thereafter underwent a series of four spinal surgeries with 
 
            the last being performed in 1990.  The second, third and 
 
            fourth surgeries all came about without any particular 
 
            identifiable precipitating or causative event of trauma.  It 
 
            was held that the second, third and fourth surgeries were 
 
            all sequela of the original injury and that the employer was 
 
            liable.  
 
            
 
            4000.2 
 
            The employer's liability was clear.  The employer had, 
 
            however, changed insurance carrier approximately one month 
 
            prior to the onset of symptoms leading to the fourth 
 
            surgery.  Neither insurance carrier would pay the claim.  A 
 
            dispute between insurance carriers does not relieve the 
 
            employer from failing to pay when the employer's liability 
 
            is clear.  A full 50 percent penalty was awarded on all 
 
            healing period and the first 10 percent of additional 
 
            permanent partial disability which was awarded.  All the 
 
            liability was assessed against the first insurance carrier 
 
            and all the penalty was likewise assessed against the first 
 
            carrier.
 
            
 
 
            
 
             
 
            
 
            
 
                   
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            ROGER D WRIGHT,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          : File No. 868055 & 969207
 
            NISHNA PRODUCTIONS, INC.,     :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            IOWA SMALL BUSINESS EMPLOYERS,:
 
            and AETNA CASUALTY & SURETY,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Roger D. 
 
            Wright, against his former employer, Nishna Productions, 
 
            Inc., and its successive insurance carriers, Iowa Small 
 
            Business Employers and Aetna Casualty and Surety Company.  
 
            Two dates of injury are alleged.  File number 868055 deals 
 
            with an alleged injury of November 18, 1986, when the 
 
            employer's insurance coverage was provided by Iowa Small 
 
            Business Employers.  File number 969207 deals with an 
 
            alleged injury of October 25, 1990, a time when Aetna 
 
            Casualty and Surety Company provided workers' compensation 
 
            insurance to the employer.
 
            
 
                 The controlling issues in the case are whether the 
 
            claimant's back condition is the result of an injury which 
 
            arose out of and in the course of employment with the 
 
            employer and, if so, which of the two insurance carriers is 
 
            responsible for paying benefits to the claimant.  Other 
 
            issues in the case involve a claim for healing period, 
 
            payment of medical expenses, permanent partial disability 
 
            compensation, and a claim for penalty under the fourth 
 
            unnumbered paragraph of Code section 86.13.  The rate of 
 
            compensation is also in dispute with regard to the number of 
 
            exemptions.
 
            
 
                 The case was heard at Council Bluffs, Iowa, on April 6, 
 
            1993.  The record consists of testimony from Roger Wright, 
 
            Albert Winchester, Katie Wright, Karen Stricklet, Sherri 
 
            Clark, Vicky Prather, Sharon McCall, and Kathy Benedict.  
 
            The record also contains claimant's exhibits 1 through 13, 
 
            16 through 34 and 36 through 40.  The record contains 
 
            defendants' exhibits A through H.  
 
            
 
                                FINDINGS OF FACT
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 Roger Wright is a 45-year-old married man who graduated 
 
            from high school and has completed some post-high school 
 
            business education at the college level.  Roger has a varied 
 
            work history.  He was head of the automotive department in a 
 
            Pamida-Gibson store.  He has experience in the grocery store 
 
            business, including as a produce manager and also as a night 
 
            manager.  He has sold hobby, craft and art supplies in a 
 
            three-state region.  
 
            
 
                 Roger commenced his employment with Nishna Productions, 
 
            Inc., in September 1985.  The employer is a shelter workshop 
 
            for mentally or physically disabled individuals.  Roger's 
 
            job was to solicit work for the disabled individuals, 
 
            oversee the work and return the finished product to the 
 
            customers.  Most of Roger's work involved little in the way 
 
            of physical exertion, but on occasion he would perform 
 
            activities such as driving trucks and handling product.  
 
            Roger was initially hired to be a truck driver but in one 
 
            year was promoted to the position of procurement 
 
            coordinator.
 
            
 
                 Roger's health history regarding his back is 
 
            unremarkable until on or about November 18, 1986, when he 
 
            injured his back while moving a large metal desk.  
 
            Chiropractic care and physical therapy was provided without 
 
            success.  Eventually, Roger came under the care of 
 
            neurosurgeon Behrouz Rassekh, M.D., who diagnosed him as 
 
            having a herniated disc.  On September 17, 1987, surgery was 
 
            performed for the herniated lumbar disc at the L5-S1 level 
 
            of Roger's spine, on the left side (exhibit 11, pages 1 & 6; 
 
            ex. 12, p. 7).  
 
            
 
                 Following the surgery, Roger's condition improved.  
 
            Roger was released to return to his normal occupation 
 
            effective November 30, 1987, with a restriction against 
 
            heavy lifting (ex. 11, p. 7; ex. 12, p. 22).  Dr. Rassekh 
 
            rated Roger as having a 5 to 10 percent permanent functional 
 
            disability or permanent impairment of his whole body 
 
            following the first surgery (ex. 11, p. 9; ex. 12, p. 24).
 
            
 
                 Roger did in fact resume his normal work.  He 
 
            experienced a recurrence of his pre-surgical symptoms and 
 
            returned to Dr. Rassekh.  Diagnostic testing showed disc 
 
            material believed to represent a free fragment.  A second 
 
            surgery was performed on May 17, 1988 (ex. 11, p. 14).  
 
            During the surgical process scar tissue was noted and the 
 
            nerve root had adhered to the epidural space.  Additionally, 
 
            a large disc extrusion was found and several large extruded 
 
            fragments were removed (ex. 11, p. 14; ex. 12, p. 8).  Dr. 
 
            Rassekh characterized the second surgery as being a 
 
            continuation of the same injury which was originally 
 
            sustained in 1986 (ex. 11, p. 16; ex. 12; pp. 8, 9, 23, 38, 
 
            & 39).  Roger was released to return to work effective 
 
            August 8, 1988, with a 10 percent functional disability 
 
            rating and with advice to avoid heavy lifting and repeated 
 
            bending (ex. 11, pp. 17-18; ex. 12, p. 24).
 
            
 
                 Roger resumed his normal employment and again 
 
            experienced a recurrence of his pre-surgery symptoms.  He 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            returned to Dr. Rassekh a third time.  Diagnostic testing 
 
            was conducted and on April 20, 1989, a third laminectomy 
 
            surgery was performed.  The operative report again shows the 
 
            existence of the nerve root having adhered to the epidural 
 
            space and additional degenerative disc fragments (ex. 11, 
 
            pp. 26-27; ex. 12, pp. 9, 10 & 11).  Dr. Rassekh opined that 
 
            the third surgery was a continuation of the original 1986 
 
            injury (ex. 12, pp. 12-13).  He explained that surgery does 
 
            not remove all disc material and that anyone who has had 
 
            disc surgery has a 5 to 10 percent chance of recurrence.  
 
            There was no identified intervening trauma to which either 
 
            the second or third surgeries could be attributed (ex. 12, 
 
            pp. 41-42).  Dr. Rassekh released Roger to return to work 
 
            effective August 28, 1989, with a restriction against 
 
            lifting more than 50 pounds (ex. 11, p. 29; ex. 12, pp. 24 & 
 
            30).  A subsequent report changed the restriction to 50 to 
 
            70 pounds and estimated Roger to have a 10 to 15 percent 
 
            permanent functional disability (ex. 11, p. 30; ex. 12, p. 
 
            24).  Dr. Rassekh felt that the third surgery was related to 
 
            the original injury that occurred in 1986 (ex. 12, p. 27).  
 
            
 
                 Roger resumed his work with Nishna Productions, Inc., 
 
            and, as before, complied with the recommended activity 
 
            restrictions.  At times Roger drove a truck.  On occasion he 
 
            handled samples and product.  It would not have been unusual 
 
            for him to handle weights in the range of 25 or 30 pounds on 
 
            an occasional basis.  There is nothing in the record to 
 
            indicate that he did any type of repetitive bending or 
 
            lifting at any time or exceeded Dr. Rassekh's activity 
 
            restrictions.  
 
            
 
                 On or about October 25, 1990, Roger began experiencing 
 
            an increase in his symptoms.  He noticed some increase late 
 
            in the work day of October 25, 1990.  He notice a particular 
 
            increase in symptoms while he was driving a truck after 
 
            leaving work on October 26, 1990.  His pain increased during 
 
            the evening of October 26 to the point that he sought 
 
            medical care early on October 27, 1990.  Further diagnostic 
 
            testing was conducted and a fourth surgery was then 
 
            performed on October 31, 1990.  The surgical findings were 
 
            similar to those found at the times of the second and third 
 
            surgeries.  An extruded disc fragment was found to be 
 
            impinging upon a nerve root.  Scar tissue was removed.  Dr. 
 
            Rassekh could not be certain but he felt that it was most 
 
            likely that the disc material had migrated from the L5-S1 
 
            interspace to cause the surgical problem (ex. 11, p. 32; ex. 
 
            12, pp. 17-18).  
 
            
 
                 As occurred prior to the second and third surgeries, 
 
            there was no particular incident of an acute identifiable 
 
            trauma which precipitated the onset of Roger's increased 
 
            symptoms.  There are some indications in the record that he 
 
            may have been experiencing increased symptoms a day or two 
 
            before October 25.  Roger could not attribute his increased 
 
            symptoms to any particular activity or event though he did 
 
            recall lifting moderate weights and driving a truck.  
 
            
 
                 Following recuperation from the fourth surgery, Dr. 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Rassekh released Roger to return to work effective March 13, 
 
            1991, with a restriction against lifting more than 50 pounds 
 
            (ex. 11, p. 44; ex. 12, pp. 31-32).  Dr. Rassekh rated 
 
            claimant as having a 20 percent permanent partial disability 
 
            following the fourth surgery (ex. 12, p. 32).
 
            
 
                 In a report dated April 15, 1991, Dr. Rassekh related 
 
            that claimant's symptoms in October 1990 were not directly 
 
            related to an accidental injury (ex. 11, p. 45).  In a 
 
            report dated January 15, 1991, Dr. Rassekh stated that he 
 
            believed claimant had a recurrent disc herniation at the 
 
            site of the previous L5-S1 surgery (ex. 11, p. 38).  
 
            
 
                 Dr. Rassekh stated that there is no doubt but that 
 
            Roger's fourth surgery was related to work.  He stated that 
 
            the situation was an aggravation of a preexisting condition 
 
            and that nearly anything could have necessitated the fourth 
 
            surgery in view of the fact of three prior surgeries.  Dr. 
 
            Rassekh stated that the cause could be lifting, coughing or 
 
            a combination of the two.  He related that driving could 
 
            have done it.  He stated that without the preexisting 
 
            condition, namely the original injury and three prior 
 
            surgeries, that it is unlikely that claimant would have had 
 
            a disc herniation and surgery in 1990.  He stated that the 
 
            disc herniation occurred when the radicular pain started.  
 
            Dr. Rassekh was questioned extensively about whether 
 
            lifting, truck driving or repetitive activities were a 
 
            "substantial" factor in producing the need for the fourth 
 
            surgery.  Dr. Rassekh indicated that he was uncertain of 
 
            what was meant by the term "substantial" but he 
 
            characterized all those activities as "contributing" 
 
            factors.  He related that claimant's recurrence could have 
 
            occurred without any of those activities.  Dr. Rassekh kept 
 
            relating back to the fact of the original injury and 
 
            previous surgeries as an important cause for the fourth 
 
            surgery. (ex. 12, pp. 19-21, 28, 49-55).
 
            
 
                 Dr. Rassekh related that Roger now has residual L5-S1 
 
            root problems and chronic discomfort in his back.  He felt 
 
            that he would have residual numbness and loss of ankle 
 
            reflex (ex. 12, pp. 48-49).
 
            
 
                 Dr. Rassekh stated that the treatment he rendered was 
 
            medically necessary and that the charges for that treatment 
 
            were fair and reasonable (ex. 12, pp. 59 & 65).
 
            
 
                 Claimant's records were evaluated by neurologist Joel 
 
            T. Cotton, M.D.  Dr. Cotton opined that the need for Roger's 
 
            fourth surgery was the natural progression of his 
 
            long-standing history of recurrent back pain and recurring 
 
            disc herniation (ex. D, p. 16).  He felt that the 1986 
 
            accident was significantly contributory to the fourth 
 
            surgery (ex. D, p. 56).  He felt that lifting was not a 
 
            substantial factor nor was driving the van, but that 
 
            coughing was a substantial factor in bringing about the 
 
            fourth surgery (ex. D, p. 50).  Dr. Cotton agreed that a 
 
            cough would not cause a ruptured disc in a normal person 
 
            (ex. D, p. 39).  Dr. Cotton based his opinion strongly on 
 
            the fact that lifting and driving a van were not contained 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            in the medical history recorded when Roger first sought 
 
            medical care at the emergency room on October 27, 1990.  
 
            
 
                 The appearance and demeanor of Roger Wright was 
 
            observed as he testified at the hearing as was the 
 
            appearance and demeanor of other witnesses.  Roger and Katie 
 
            Wright are both found to be fully credible witnesses.  The 
 
            testimony in the case contains little that is truly 
 
            irreconcilable.  All of the material differences can readily 
 
            be attributed to the passage of time and failing memories as 
 
            far as testimony concerning individual observations is 
 
            concerned.  
 
            
 
                 It is found that Roger engaged in a number of 
 
            activities leading up to his fourth surgery but he did not 
 
            engage in repetitive activity.  There is no evidence of him 
 
            performing anything which could even be remotely termed as 
 
            repetitive activity.  While cumulative trauma need not 
 
            necessarily result from something as repetitive as an 
 
            assembly line process, it does require some sort of repeated 
 
            activity which is somewhat traumatic by providing repeated 
 
            impacts or stresses.  No such activity appears in the record 
 
            of this case.  Dr. Cotton expressly attributes Roger's 
 
            fourth surgery to the 1986 injury.  Dr. Rassekh repeatedly 
 
            makes reference to the preexisting condition, namely the 
 
            1986 injury and three prior surgeries.  It is important to 
 
            note that Dr. Rassekh had expressly related each of the 
 
            first three surgeries to the 1986 injury (ex. 12, pp. 13, 23 
 
            & 24).  The fourth incident was very similar to the second 
 
            and third.  There is no identifiable incident of trauma 
 
            which marked the onset of increased symptoms.  The surgery 
 
            revealed scarring and disc fragments.  The greater weight of 
 
            the evidence in this case clearly shows that the fourth 
 
            surgery was a sequela of the 1986 injury.  It was not 
 
            brought about by intervening trauma.  The principle reason 
 
            why the fourth surgery became necessary was the fact of the 
 
            original injury, scarring and migrating disc fragments, all 
 
            resulting from that original injury and from the prior 
 
            surgeries following that 1986 injury.  Coughing, lifting or 
 
            driving the van may have played some part in affecting the 
 
            rate at which the symptoms increased but none of those 
 
            activities which appear in the record in this case appear to 
 
            be significantly traumatic.  They are not events of 
 
            sufficient magnitude to break the chain of causation between 
 
            the original injury and the fourth surgery.  The fourth 
 
            surgery showed no evidence of a new herniation and it showed 
 
            scarring from the previous surgeries.  The most likely 
 
            origin for the disc material was residual material left over 
 
            from the prior surgeries.  The original 1986 injury is 
 
            clearly the most significant and substantial factor 
 
            responsible for bringing about the fourth surgery.  
 
            
 
                 At the time of the original 1986 injury, Roger was 
 
            married to Katie.  Roger's two sons, Todd and Steven, were 
 
            both minors residing with Roger.  Katie's two children were 
 
            also with them.  The father of Katie's children was entitled 
 
            to claim them as dependents for income tax purposes.  Roger 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            and Katie did not claim her children as exemptions on their 
 
            1991 income tax return (ex. 19, p. 7).
 
            
 
                 At about the same time as Dr. Rassekh was releasing 
 
            Roger to return to work, his employment was terminated by 
 
            his employer.  The two reasons given were to protect Roger 
 
            from further injury and also because of a rule that the 
 
            employer had adopted which permitted termination of 
 
            individuals who were off work for more than 90 days.  There 
 
            is nothing in the record which indicates that the employer 
 
            was legally mandated or obligated to adopt such a rule or 
 
            that it could not have provided exceptions to the rule.  
 
            There is no indication that it had ever been used to 
 
            terminate the employment of any other employee.  Dr. Rassekh 
 
            indicated that returning to work within the restrictions he 
 
            had recommended would not increase the risk that further 
 
            problems would arise (ex. 12, p. 61).  No evidence to the 
 
            contrary is in the record of this case.  It is found that 
 
            the employer in this case voluntarily chose to not restore 
 
            Roger to his employment.  For purposes of this decision, 
 
            further findings regarding the motivation for the 
 
            termination of employment need not be made.
 
            
 
                 Roger experienced an extended period of unemployment.  
 
            Through his own efforts he obtained work selling life 
 
            insurance.  He had initial success as is customary for new 
 
            insurance agents.  He is now at a point where it is 
 
            uncertain as to whether or not he will succeed in the 
 
            insurance industry.  It has a high rate of turnover.  
 
            Typically, individuals are initially successful while 
 
            selling to friends and acquaintances.  Once they have 
 
            depleted that source of relatively easy sales, they then 
 
            must make the transition into cold sales or selling to 
 
            strangers.  It is at this point when many fail.  Roger is at 
 
            that point now and it is yet to be seen whether or not he 
 
            will ultimately succeed.  His sales during the last quarter 
 
            were unacceptably low.
 
            
 
                 There is a disagreement between the vocational 
 
            consultants with regard to the loss of access to the labor 
 
            market which Roger has experienced, but either assessment 
 
            provides a substantial loss.  Roger had an extensive work 
 
            history in the grocery store business and his limited 
 
            physical capabilities clearly eliminate him from the grocery 
 
            store business since nearly any position in the grocery 
 
            store industry involves at least occasional handling of 
 
            boxes of canned goods, meat products or bagged items such as 
 
            dog food.  It is very doubtful that Roger could perform 
 
            those types of activities.  Individuals with back problems 
 
            frequently have trouble performing extended driving.  
 
            Over-the-road sales as Roger had done previously is likewise 
 
            probably not a viable long-term career field.
 
            
 
                 Roger's entry into the insurance industry seems to be a 
 
            very wise and astute career move for him.  It is recognized 
 
            that his current level of earnings as reported at hearing is 
 
            well in excess of what he had earned at Nishna Productions 
 
            but it is also recognized that he has considerable expenses 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            which reduce that gross income, expenses which he did not 
 
            have at Nishna.  It is further recognized he worked many 
 
            more hours in the insurance work than he did with Nishna.  
 
            His hourly rate of earnings is less with Metropolitan than 
 
            it had been with Nishna.  It is only by Roger's extreme 
 
            motivation and hard work that he has been able to obtain the 
 
            level of income which he enjoyed in 1992.  His level of 
 
            income for 1993 is currently quite speculative.  
 
            
 
                 In this case there was really no bona fide good faith 
 
            issue with regard to whether or not Roger's fourth surgery 
 
            was proximately caused by his employment.  The only real 
 
            issue was whether or not there had been an intervening 
 
            trauma subsequent to the date that Aetna Casualty and Surety 
 
            Company commenced insuring the employer.  Under either 
 
            scenario of this case, the employer was clearly liable for 
 
            Roger's condition.  There is no reasonable or probable cause 
 
            or excuse for the complete denial of Roger's claim for 
 
            medical expenses and weekly compensation.  The failure to 
 
            pay was unreasonable.  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 The occurrence of the 1986 injury is well established 
 
            and is not seriously disputed.  Roger is credible.  Dr. 
 
            Rassekh supports the causal connection between the activity 
 
            of moving the desk and the herniated disc and the first 
 
            surgery.  There is no substantial evidence in the record to 
 
            the contrary.  It is therefore determined that Roger Wright 
 
            sustained an injury which arose out of and in the course of 
 
            his employment with Nishna Productions, Inc., on November 
 
            18, 1986. 
 
            
 
                 Following that injury Roger has undergone four 
 
            surgeries.  The first surgery was directly caused by that 
 
            original injury.  The second, third and fourth surgeries 
 
            were all likewise proximately caused by that original 1986 
 
            injury. 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 The second, third and fourth surgeries could possibly 
 
            be called aggravations of the preexisting condition but in 
 
            any event, they are all sequela of the original injury.  It 
 
            is important to note that there has been no evidence of any 
 
            significant intervening trauma.  The findings at surgery 
 
            were of scarring and further disc fragments at the levels of 
 
            the spine affected by the original injury.  The evidence in 
 
            this case clearly shows a direct chain of causation between 
 
            the original injury and the fourth surgery.  Roger's 
 
            employer, Nishna Productions, Inc., is therefore responsible 
 
            for the results of that fourth surgery, namely the medical 
 
            expenses, healing period and permanent partial disability 
 
            compensation.  
 
            
 
                 Section 85.34(1) provides that healing period benefits 
 
            are payable to an injured worker who has suffered permanent 
 
            partial disability until (1) the worker has returned to 
 
            work; (2) the worker is medically capable of returning to 
 
            substantially similar employment; or (3) the worker has 
 
            achieved maximum medical recovery.  The healing period can 
 
            be considered the period during which there is a reasonable 
 
            expectation of improvement of the disabling condition.  See 
 
            Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa 
 
            Ct. App. 1981).  Healing period benefits can be interrupted 
 
            or intermittent.  Teel v. McCord, 394 N.W.2d 405 (Iowa 
 
            1986).  The healing period under section 85.34(1) commences 
 
            on October 27, 1990, as requested by claimant and terminates 
 
            on March 12, 1991.  The healing period is a span of 19 4/7 
 
            weeks. 
 
            
 
                 The rate of compensation is based upon the original 
 
            injury which has been determined to be the proximate cause 
 
            of the fourth surgery.  It was stipulated in the hearing 
 
            report that Roger's gross earnings were $253.85 per week.  
 
            The evidence shows that he was married and had four minor 
 
            children in his home at that time.  Of the four, two were 
 
            his children and two were the children of his spouse.  It is 
 
            admitted in the record of this case that Katie's former 
 
            spouse was entitled to claim her two children as exemptions 
 
            for purposes of income tax.  The agency has given a literal 
 
            interpretation to sections 85.61(6) and (9) of the Code.  
 
            The exemptions used in determining the rate of compensation 
 
            are the exemptions properly allowable for purposes of income 
 
            taxes.  Keeling v. Cedar Rapids Community Schools, file 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            number 891809 (App. Dec. February 26, 1993).  Roger is 
 
            therefore entitled to four exemptions in computing his rate 
 
            of compensation, himself, his spouse and his two children, 
 
            Todd and Steven.  Based upon his stipulated earnings of 
 
            $253.85 and being married, the correct rate is $171.14 per 
 
            week.  This is the rate at which benefits had been paid at 
 
            the times of the first three surgeries.
 
            
 
                 Since claimant has an impairment to the body as a 
 
            whole, an industrial disability has been sustained.  
 
            Industrial disability was defined in Diederich v. Tri-City 
 
            Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (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, motivation, loss of earnings, severity and situs 
 
            of the injury, work restrictions, inability to engage in 
 
            employment for which the employee is fitted and the 
 
            employer's offer of work or failure to so offer.  Olson v. 
 
            Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); 
 
            Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 
 
            (1961).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 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.  Bearce v. FMC Corp., 465 N.W.2d 531 
 
            (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 
 
            1974); 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, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            218 (1979); 2 Larson Workmen's Compensation Law, sections 
 
            57.21 and 57.31.
 
            
 
                 When considering Roger's loss of access to the job 
 
            market, reduction in hourly rate of earnings, his high level 
 
            of motivation, and all the material factors of industrial 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            disability, it is determined that Roger has a 35 percent 
 
            permanent partial disability as a result of the November 18, 
 
            1986 injury.  Employer has previously paid Roger 75 weeks of 
 
            compensation for permanent partial disability at the correct 
 
            rate of $171.14 per week.  This is equivalent to a 15 
 
            percent permanent partial disability.  Roger is therefore 
 
            entitled to receive an additional 20 percent permanent 
 
            partial disability, an amount equivalent to 100 weeks of 
 
            compensation.  In making this determination, it is noted 
 
            that an employer's determination that an employee is not 
 
            economically feasible to employ due to results of an injury 
 
            is given a great deal of weight.  It is strong evidence of a 
 
            high degree of disability.  2 Larson, Workman's 
 
            Compensation, section 57.61 et. seq.
 
            
 
                 The issue of apportionment was raised.  It is not 
 
            appropriate in this case since all the disability arose as a 
 
            result of the initial injury and all the disability arose 
 
            from the employment with the same employer.  Tussing v Geo. 
 
            Hormel and Co., 461 N.W.2nd 450 (Iowa 1990).
 
            
 
                 Claimant seeks to recover a penalty under the fourth 
 
            unnumbered paragraph of Code section 86.13.  Section 86.13 
 
            permits an award of up to 50 percent of the amount of 
 
            benefits delayed or denied if a delay in commencement or 
 
            termination of benefits occurs without reasonable or 
 
            probable cause or excuse.  The standard for evaluating the 
 
            reasonableness of defendants' delay in commencement or 
 
            termination is whether the claim is fairly debatable.  Where 
 
            a claim is shown to be fairly debatable, defendants do not 
 
            act unreasonably in denying payment.  See Stanley v. Wilson 
 
            Foods Corp., File No. 753405 (App. August 23, 1990); Seydel 
 
            v. Univ. of Iowa Physical Plant, File No. 818849 (App. 
 
            November 1, 1989).  This is a classic, textbook example of a 
 
            case where a penalty is warranted.  Regardless of whether 
 
            the ultimate determination had been that the fourth surgery 
 
            was proximately caused by the original 1986 injury, by 
 
            cumulative trauma, by lifting or driving a van, or by 
 
            coughing being superimposed upon the claimant's back which 
 
            was weakened by the original work-related injury and three 
 
            initial surgeries the result would be the same, namely, the 
 
            employer Nishna Productions, Inc., is clearly liable.  The 
 
            only bona fide dispute in this case was between the two 
 
            insurance carriers.  Rohr v. Knutson Construction Co., 232 
 
            N.W.2d 233 (Minn 1975); Town of Hudson v. Wynott, 522 A. 2d 
 
            974 (N.H. 1986); P and L Construction Co., Inc. v. Lankford, 
 
            559 S.W.2d 793 (Tenn 1978); Medart Div of Jackes-Evans Mfg 
 
            Co, Inc. v. Adams, 344 So.2d 141 (Miss 1977).  
 
            
 
                 The well recognized rule of law is that when the 
 
            primary injury is shown to have arisen out of and in the 
 
            course of employment, every natural consequence that flows 
 
            from the injury likewise arises out of the employment unless 
 
            it is the result of an independent intervening cause.  1 
 
            Larson, section 13.00.  As noted in the foregoing cases 
 
            which are cited, simple activities or events such as 
 
            sneezing, picking up laundry and the like are not 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            substantial traumas and do not injure a healthy, normal 
 
            individual.  If a person's back has been injured so severely 
 
            by an industrial accident that innocuous activities such as 
 
            sneezing, picking up laundry or the like, produces a 
 
            situation which requires surgery and substantial medical 
 
            treatment, it is clear that the proximate cause is not the 
 
            sneeze or the laundry, it is the original injury which 
 
            weakened the back and made it fragile.  In this case, there 
 
            were a number of seemingly innocuous activities which might 
 
            have precipitated that need for the fourth surgery.  Lifting 
 
            and driving the van were both work-related activities which 
 
            would have, by themselves, placed responsibility on the 
 
            employer if they were used as the basis.  If this were a 
 
            cumulative trauma situation that, by itself, would make the 
 
            employer liable.  The overwhelmingly greater weight of the 
 
            evidence in this case does not, however, establish that any 
 
            particular event or cumulative trauma brought about the need 
 
            for the fourth surgery.  The evidence places it upon the 
 
            progression and sequela of the original 1986 injury.  Even 
 
            if the immediate cause could be placed upon the coughing 
 
            incident, that, by itself, does not relieve the employer 
 
            from liability since it is only by virtue of the weakened 
 
            back that the coughing was able to have any impact.  
 
            Clearly, under every possible scenario reasonably indicated 
 
            by the evidence in this case, the employer was liable.  The 
 
            only question was which insurance carrier should be paying 
 
            benefits.
 
            
 
                 The Iowa workers' compensation law makes employers 
 
            liable for payment of benefits (section 85.3 Code of Iowa).  
 
            The employer may not avoid its liability contractually 
 
            (85.18).  Employers are required to obtain liability 
 
            insurance to insure the solvency to make the statutorily 
 
            required payments to injured employees (section 87.1 Code of 
 
            Iowa).  In the event that an employer's insurance carriers 
 
            have a dispute, such as the one in this case, section 85.21 
 
            of the Code of Iowa provides those insurers and that 
 
            employer with a prompt, practical means of allowing the 
 
            employer to comply with its statutory duty of making timely 
 
            payments without prejudicing the rights of either of the 
 
            potentially liable insurance carriers.  Simply stated, there 
 
            is no reasonable or probable cause of excuse for the denial 
 
            of benefits in this case.  Denning v. Hyman Freightways, 
 
            Inc., file number 751584 (Arb. Dec. May 23, 1989).
 
            
 
                 There is no good faith dispute with regard to the 
 
            employer's liability for the healing period.  There is some 
 
            good faith dispute with regard to the extent of permanent 
 
            partial disability.  In the past, the employer had paid 75 
 
            weeks of permanent partial disability compensation 
 
            representing a 15 percent permanent partial disability and 
 
            the employer is entitled to full credit for those payments.  
 
            From that point on the determination is based upon the level 
 
            of permanent partial disability which marks the lowest 
 
            possible amount which was reasonable to urge.  Permanent 
 
            partial disability is assessed at the end of the healing 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            period without speculating what the future may hold but with 
 
            taking into account the individual's age, experience, 
 
            education and the other material factors of industrial 
 
            disability.  Thomas v. William Knudson & Sons, Inc., 349 
 
            N.W.2d 124 (Ia. Ct. App. 1984); Stewart v. Crouse Cartage, 
 
            file number 738644 (App. Dec. 1987); Meier v. John Kirby, 
 
            Inc., file number 826937 (App. Dec. March 31, 1989).  It is 
 
            concluded that in this case, it was unreasonable to have not 
 
            paid at least 125 weeks of permanent partial disability 
 
            representing a 25 percent permanent partial disability.  
 
            With an impairment rating of 20 percent and a determination 
 
            by the employer that it was not economically feasible to 
 
            continue to employ the claimant, 25 percent is a very modest 
 
            assessment of the degree of industrial disability.  
 
            
 
                 It was only through the claimant's extreme motivation, 
 
            taking additional training in the form of preparation for 
 
            the insurance examinations and working one and one-half 
 
            times as many hours as he worked at Nishna Productions, 
 
            Inc., that he has been able to achieve his current rate of 
 
            income.  His hourly rate of income is actually less than 
 
            what it was when he was employed by Nishna Productions, Inc.  
 
            He has a large loss of access to portions of the job market 
 
            which were previously available to him and in which he had 
 
            worked prior to the injury.  As previously stated, 25 
 
            percent is a very modest assessment of his disability.
 
            
 
                 The failure to have paid at least 25 percent permanent 
 
            partial disability was unreasonable.  After giving credit 
 
            for the 15 percent permanent partial disability previously 
 
            paid, the balance of 10 percent or 50 weeks was unreasonably 
 
            denied.  When added with the healing period, the total is 69 
 
            4/7 weeks of weekly compensation which were unreasonably 
 
            denied.  Fifty percent of that amount is slightly more than 
 
            34.75 weeks.  It is therefore concluded that the claimant is 
 
            entitled to recover 34.75 weeks of additional compensation 
 
            as a penalty under the fourth unnumbered paragraph of Code 
 
            section 86.13.  
 
            
 
                 A near maximum penalty is imposed in this case due to 
 
            the fact that the employer's liability was abundantly clear 
 
            and the claimant experienced severe financial hardship as a 
 
            result of the decision to deny his claim.  Claimant was 
 
            forced to obtain legal counsel in order to obtain benefits 
 
            which should have been voluntarily paid to him.  It is 
 
            necessary to impose a near maximum penalty in order to make 
 
            the claimant whole and to insulate him as nearly as possible 
 
            from the impact of legal fees and litigation expenses which 
 
            he would not have been required to incur if the employer and 
 
            its insurance carriers had acted reasonably when adjusting 
 
            the claim.  The total penalty assessed computes to 
 
            $5,947.11.
 
            
 
                 Claimant seeks to recover the expenses set forth in 
 
            exhibit 16 under the provisions of Code section 85.27.  The 
 
            employer shall furnish reasonable surgical, medical, dental, 
 
            osteopathic, chiropractic, podiatric, physical 
 
            rehabilitation, nursing, ambulance and hospital services and 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            supplies for all conditions compensable under the workers' 
 
            compensation law.  The employer shall also allow reasonable 
 
            and necessary transportation expenses incurred for those 
 
            services.  The employer has the right to choose the provider 
 
            of care, except where the employer has denied liability for 
 
            the injury.  Section 85.27.  Holbert v. Townsend Engineering 
 
            Co., Thirty-second Biennial Report of the Industrial 
 
            Commissioner 78 (Review-reopen 1975).  The reasonableness of 
 
            Dr. Rassekh's charges and the necessity of his treatment are 
 
            established in a deposition.  Further, in the hearing 
 
            report, it is stipulated that the providers of the treatment 
 
            would testify that the fees and treatment were reasonable 
 
            and that no contrary evidence was offered.  It was further 
 
            stipulated that those fees and expenses were incurred in 
 
            providing treatment for the condition upon which this claim 
 
            was based.  The employer is therefore responsible for 
 
            payment of all the expenses set forth in claimant's exhibit 
 
            16.
 
            
 
                 In view of determination that the fourth surgery was 
 
            proximately caused by the original injury and not by any 
 
            intervening trauma the entire liability falls upon the 
 
            insurance carrier, Iowa Small Business Employers.  Aetna 
 
            Casualty and Surety Company has no liability in this case.
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED that Nishna Productions, Inc., 
 
            and Iowa Small Business Employers pay Roger D. Wright 
 
            nineteen and four-sevenths (19 4/7) weeks of compensation 
 
            for healing period at the rate of one hundred seventy-one 
 
            and 14/100 dollars ($171.14) per week payable commencing 
 
            October 27, 1990.
 
            
 
                 It is further ordered that Nishna Productions, Inc., 
 
            and Iowa Small Business Employers pay Roger D. Wright an 
 
            additional one hundred (100) weeks of compensation for 
 
            permanent partial disability at the rate of one hundred 
 
            seventy-one and 14/100 dollars ($171.14) per week payable 
 
            commencing March 13, 1991.  
 
            
 
                 It is further ordered that the foregoing weekly 
 
            compensation benefits are all past due and owing and shall 
 
            be paid to Wright in a lump sum together with interest 
 
            computed from the day each weekly payment came due until the 
 
            date of actual payment pursuant to section 85.30 of the Code 
 
            of Iowa.
 
            
 
                 It is further ordered that Nishna Productions, Inc., 
 
            and Iowa Small Business Employers pay claimant the sum of 
 
            five thousand nine hundred forty-seven and 11/100 dollars 
 
            ($5,947.11) representing a penalty under the provisions of 
 
            the fourth unnumbered paragraph of Code section 86.13.
 
            
 
                 It is further ordered that defendants Nishna 
 
            Productions, Inc., and Iowa Small Business Employers pay the 
 
            following medical expenses:
 
            
 
                 Behrouz Rassekh, M.D.             $ 3,120.00
 
                 Gary DeBoss, M.D.                     340.00
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
                 Mercy Hospital                      7,711.85
 
                 Mercy Anesthesia Assoc.               429.00
 
                 Jennie Edmondson Hospital              64.00
 
                 Jennie Edmondson Hospital             585.50
 
                 Drug Town                             272.42
 
                 Midlands Radiology                    155.00
 
                 Judy Brookover                        336.50
 
                                          TOTAL    $13,014.27
 
            
 
                 It is further ordered that the claims against Aetna 
 
            Casualty and Surety Company made in file number 969290 are 
 
            dismissed and that Aetna Casualty and Surety has no 
 
            liability in this matter.  
 
            
 
                 It is further ordered that the costs of this proceeding 
 
            are assessed against Nishna Productions, Inc. and Iowa Small 
 
            Business Employers pursuant to rule 343 IAC 4.33, including 
 
            claimant's costs of $65 for the filing fee and $2.52 for 
 
            certified mail.
 
            
 
                 It is further ordered that Nishna Productions, Inc., 
 
            and Iowa Small Business Employers file claim activity 
 
            reports as requested by this agency pursuant to rule 343 IAC 
 
            3.1.
 
            
 
                 Signed and filed this ____ day of July, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Michael Sciortino
 
            Attorney at Law
 
            221 S. Main
 
            Council Bluffs, Iowa  51503
 
            
 
            Mr. Gene R. LaSuer
 
            Ms. Becky S. Knutson
 
            666 Walnut, STE 2500
 
            Des Moines, Iowa  50309-3993
 
            
 
            Ms. Rita Grimm
 
            Attorney at Law
 
            701 Pierce STE 200
 
            PO Box 3086
 
            Sioux City, Iowa  51102
 
            
 
 
                 
 
            
 
                      
 
            
 
                                          1108.50 1402.30 2207 2206 
 
                                          1402.20 1402.30 4000.2 1803 
 
                                          1807 1703
 
                                          Filed July 8, 1993
 
                                          Michael G. Trier
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            ROGER D WRIGHT,     
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                           File No. 868055 & 969207
 
            NISHNA PRODUCTIONS, INC.,     
 
                                            A R B I T R A T I O N
 
                 Employer, 
 
                                              D E C I S I O N
 
            and       
 
                      
 
            IOWA SMALL BUSINESS EMPLOYERS,
 
            and AETNA CASUALTY & SURETY,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            1108.50 1402.30 2207 2206
 
            Claimant who suffered an initial original injury in 1986 
 
            thereafter underwent a series of four spinal surgeries with 
 
            the last being performed in 1990.  The second, third and 
 
            fourth surgeries all came about without any particular 
 
            identifiable precipitating or causative event of trauma.  It 
 
            was held that the second, third and fourth surgeries were 
 
            all sequela of the original injury and that the employer was 
 
            liable.  There was some indication that coughing might have 
 
            precipitated the fourth surgery but even if it had, it was 
 
            held that such did not break the chain of causation in order 
 
            to relieve the employer of liability.  (Larson and cases 
 
            from other jurisdictions cited.)
 
            
 
            1402.20 1402.30
 
            Claimant had attempted to attribute the fourth surgery to 
 
            lifting and driving a truck but the evidence showed those 
 
            activities to have been relatively innocuous, not likely to 
 
            produce injury and it did not show an onset of symptoms 
 
            concurrent with performing any of those activities.  The 
 
            claimant failed to show that the fourth surgery was the 
 
            result of a new injury.  It all related to the original 1986 
 
            injury.  Surgical findings included a migrated disc fragment 
 
            from the originally impaired disc and scar tissue.  There 
 
            was no indication of a recent new trauma.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            4000.2 
 
            The employer's liability was clear.  The employer had, 
 
            however, changed insurance carrier approximately one month 
 
            prior to the onset of symptoms leading to the fourth 
 
            surgery.  Neither insurance carrier would pay the claim.  It 
 
            was held that this was a classic, textbook example of a case 
 
            where the failure to pay was unreasonable and a penalty is 
 
            warranted.  A dispute between insurance carriers does not 
 
            relieve the employer from failing to pay when the employer's 
 
            liability is clear.  A full 50 percent penalty was awarded 
 
            on all healing period and the first 10 percent of additional 
 
            permanent partial disability which was awarded.  All the 
 
            liability was assessed against the first insurance carrier 
 
            and all the penalty was likewise assessed against the first 
 
            carrier.
 
            
 
            1803 1807 1703
 
            The employer discharged claimant when he was released to 
 
            return to work asserting that they did so to protect him 
 
            from re-injury and also because the employer had a policy 
 
            that permitted discharge of individuals who had been off 
 
            work more than 90 days.  It was held that the discharge was 
 
            strong evidence of a high degree of disability since the 
 
            employer with whom the injury occurred should have a greater 
 
            incentive to make work available to the employee than any 
 
            other employer would have.  Its determination that it was 
 
            not economically feasible to employ him is entitled to a 
 
            great amount of weight.  Claimant, after a six-month term of 
 
            unemployment was able to obtain work selling insurance.  At 
 
            the time of hearing he was doing well.  He had earned more 
 
            money in the previous year selling insurance than he had 
 
            earned with the defendant employer but only by working 
 
            approximately 50 percent more hours than he had worked with 
 
            the defendant employer.  His actual hourly earnings were 
 
            less selling insurance than they had been with the defendant 
 
            employer.  Vocational consultants established a large loss 
 
            of access to the job market due to his back injury, 
 
            including most of his prior employments.  Claimant awarded 
 
            35 percent permanent partial disability.  Defendants granted 
 
            credit for the 15 percent which had been previously paid 
 
            following the first, second and third surgeries.  Penalty 
 
            was assessed upon failure to have paid at least 25 percent 
 
            permanent partial disability under the circumstances.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803
 
                           Filed December 10, 1990
 
                           MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LARRY ANDERSON,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 868158
 
            TECHNICAL SPECIALTY SYSTEMS,  :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-1803
 
            Claimant was awarded a 25 percent permanent partial 
 
            disability as a result of a work related injury.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LARRY ANDERSON,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 868158
 
            TECHNICAL SPECIALTY SYSTEMS,  :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Larry Anderson, against his employer, Technical 
 
            Specialty Systems, and its insurance carrier, Employer's 
 
            Mutual, defendants.  The case was heard on December 13, 
 
            1989, in Ottumwa at the Wapello County Courthouse.  The 
 
            record consists of the testimony of claimant.  The record 
 
            also consists of the testimonies of Chris Michael and Clark 
 
            Williams.  Additionally, the record consists of claimant's 
 
            exhibits A-L with the exception of the report of Leon 
 
            Veldhuizen dated December 12, 1989 and defendants' exhibits 
 
            1-11 are part of the record.
 
            
 
                                      issues
 
            
 
                 The issues to be determined are:  1) whether claimant 
 
            received an injury which arose out of and in the course of 
 
            his employment; 2) whether there is a causal relationship 
 
            between the alleged injury and the disability; 3) whether 
 
            claimant is entitled to temporary disability/healing period 
 
            benefits or permanent partial disability benefits; and, 4) 
 
            the rate used to calculate weekly benefits.
 
            
 
                                statement of facts
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant was born on March 28, 1952.  He completed the 
 
            tenth grade but then dropped out of school.  Claimant did 
 
            complete a one year carpentry course at DMACC.  Subsequent 
 
            to the completion of his course work, claimant engaged in 15 
 
            years of carpentry work.  Claimant also obtained his GED.  
 
            He had training and experience as a cook.
 
            
 
                 On October 23, 1987, claimant was struck by a 2 x 4 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            board.  The board hit claimant in the chest and right 
 
            shoulder area.  He was taken to the emergency room at the 
 
            Mahaska County Hospital.  Later claimant was examined by 
 
            Donald Berg, M.D., who ordered physical therapy.
 
            
 
                 Claimant was then referred to Scott B. Neff, D.O., 
 
            after continued problems with pain.  Dr. Neff prescribed 
 
            conservative treatment for a myofascial pain syndrome.  Dr. 
 
            Neff believed claimant was magnifying his symptoms.
 
            
 
                 Dr. Neff referred claimant to Karen Kienker, M.D., a 
 
            specialist in physical medicine.  She too diagnosed claimant 
 
            as having myofascial pain syndrome.  She recommended that 
 
            claimant stay off work.  She also placed claimant in a pain 
 
            management program.
 
            
 
                 Dr. Kienker, in her letter of August 31, 1989 to 
 
            claimant's attorney wrote:
 
            
 
                 I am responding to your August 24 letter regarding 
 
                 Larry D. Anderson.  The letters you enclosed 
 
                 suggest Mr. Anderson magnifies his symptoms and 
 
                 may give less than a full effort on examination.  
 
                 This is consistent with my findings.  He sometimes 
 
                 grimaces or grunted with being examined, and once 
 
                 I thought he didn't raise his arm as far as he 
 
                 could.  I could, quite easily, raise his arm 
 
                 further.
 
            
 
                 I thought he was depressed while I was treating 
 
                 him, and prescribed antidepressant medication.  
 
                 Fear of reinjury may reasonably be a factor, but I 
 
                 have no feeling as to whether this applies to Mr. 
 
                 Anderson.
 
            As of June 1, 1988, Dr. Kienker performed an evaluation of 
 
            permanent impairment.  She opined claimant had a 13 percent 
 
            functional impairment rating.  She also opined on that same 
 
            date:  "Mr. Anderson will never be able to return to his 
 
            previous employment as a laborer, or carpenter."
 
            
 
                 Dr. Kienker and the support staff at Iowa Methodist 
 
            Medical Center believed claimant could benefit from 
 
            counseling in the area of chemical dependency.  Claimant did 
 
            attend some AA meetings, but he discontinued his association 
 
            with AA.  He did not appear especially motivated to work on 
 
            this aspect of his life.
 
            
 
                 Claimant sought an evaluation from James W. Weinstein, 
 
            M.D., at the Spine Diagnostic and Treatment Center at the 
 
            University of Iowa.  Dr. Weinstein opined claimant had a 13 
 
            percent permanent partial impairment.  Permanent 
 
            restrictions were imposed by M. L. Fairchild, L.P.T., at the 
 
            University of Iowa.  The restrictions imposed were:
 
            
 
                 The following results and recommendations are 
 
                 based on objective measurements and the 
 
                 performance of these tests by the patient.  
 
                 However, a patients [sic] effort can affect the 
 
                 objective results of these tests.  Mr. Anderson 
 
                 was fairly motivated, moderately self-limiting and 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 demonstrated severe nonverbal pain behavior.
 
            
 
                 Maximum nonrepetitive lifting limits (less than 4 
 
                 times per hour) are: squat lift 25 lb, partial 
 
                 squat lift - 40 lb, and arm lift from waist to 
 
                 shoulder 15/ maximum repetitive lifting limits 
 
                 (more than 4 x per hour) are: squat lift 12.5 lb, 
 
                 partial squat lift - 20 lb, and arm lift from 
 
                 waist to shoulder 7.5 lb.  He can tolerate sitting 
 
                 l 1/2 hrs at a time with a back support and 5 min 
 
                 without a back support
 
            
 
                 Mr. Anderson is currently on a stretching program 
 
                 but nothing for strengthening.  He needs to work 
 
                 on ROM & strengthening of his R shoulder which he 
 
                 limits to 50% functioning.  There was no end field 
 
                 on testing.  He needs to practice "hurt v. harm" 
 
                 and become much more physically active.
 
            
 
                 Per the decision of the defendants, claimant was 
 
            evaluated by both Dr. Neff and Thomas W. Bower, L.P.T.  Dr. 
 
            Neff opined that claimant did not have a functional 
 
            impairment.  The physician opined that claimant was 
 
            magnifying his symptoms.  On the other hand, Mr. Bower 
 
            determined claimant had a nine percent impairment due to 
 
            claimant's loss of range of motion.  Mr. Bower did not 
 
            believe there was any other objective evidence pointing to 
 
            claimant's condition, however, Mr. Bower did permanently 
 
            restrict claimant as follows:
 
            
 
                 As you can see from the functional exam, this 
 
                 gentleman is functioning at a fairly low level of 
 
                 work and is virtually unable, at least through 
 
                 this testing procedure, to move the weight above 
 
                 shoulder height.  His pain levels did not seem to 
 
                 be directly impacting although his most increase 
 
                 in pain was seen in the shoulder to overhead lift.
 
            
 
                 Presently, this gentleman would be classified into 
 
                 a light category of work as defined as lifting 20 
 
                 pounds infrequently and 10 pounds frequently.  
 
                 Carrying of objects in the 10 pound range could be 
 
                 a frequent task.  A job in this category also 
 
                 would require some walking and standing, to a 
 
                 significant degree.  When it involves sitting most 
 
                 of the time, pushing and pulling of the legs and 
 
                 arm controls would be a part of the job duties.  
 
                 It would seem that he could handle this type of 
 
                 work certainly and any overhead work would be dis
 
                 couraged.
 
            
 
                 Subsequent to his injury, claimant engaged in various 
 
            aspects of vocational rehabilitation.  At the time of the 
 
            hearing claimant was not working or engaged in classes.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on October 23, 
 
            1987, which arose out of and in the course of his 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            employment.  McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63 (1955).
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 
 
            128 (1967). 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of October 23, 
 
            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). 
 
            
 
                 The opinions of experts need not be couched in 
 
            definite, positive or unequivocal language.  Sondag v. 
 
            Ferris Hardward, 220 N.W.2d 903 (Iowa 1974).  An opinion of 
 
            an expert based upon an incomplete history is not binding 
 
            upon the commissioner, but must be weighed together with the 
 
            other disclosed facts and circumstances.  Bodish, 257 Iowa 
 
            516, 133 N.W.2d 867 (1965).  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  Burt, 247 Iowa 691, 73 N.W.2d 732 (1955).  In 
 
            regard to medical testimony, the commissioner is required to 
 
            state the reasons on which testimony is accepted or 
 
            rejected.  Sondag, 220 N.W.2d 903 (1974).
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            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."
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985);  Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 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).
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 For example, a defendant employer's refusal to give any 
 
            sort of work to a claimant after he suffers his affliction 
 
            may justify an award of disability.  McSpadden v. Big Ben 
 
            Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
            
 
                 Similarly, a claimant's inability to find other 
 
            suitable work after making bona fide efforts to find such 
 
            work may indicate that relief would be granted.  McSpadden, 
 
            388 N.W.2d 181 (Iowa 1980).
 
            
 
                 In the case at hand, claimant has established that he 
 
            has sustained an injury which arose out of and in the course 
 
            of his employment.  On October 23, 1987, while performing 
 
            services for his employer, claimant was struck by a 2 by 4 
 
            board which fell from some overhead scaffolding.  The board 
 
            struck claimant in the chest and right shoulder area.  
 
            Claimant needed medical attention for the same.  Prior to 
 
            the date of the injury, claimant had been in good health 
 
            with no apparent medical problems in the chest, back, 
 
            shoulder or neck areas.  No doctor has attributed claimant's 
 
            condition to prior or subsequent incidents.  Therefore, it 
 
            is the determination of the undersigned that claimant has 
 
            sustained an injury which arose out of and in the course of 
 
            his employment.  Likewise, claimant has proven the requisite 
 
            causal connection between the injury and claimant's 
 
            condition.
 
            
 
                 Claimant has also proven that he has sustained a 
 
            permanent partial disability.  Both of the treating 
 
            physicians, Dr. Kienker and Dr. Weinstein, agreed there was 
 
            a 13 percent permanent impairment.  Mr. Bower evaluated 
 
            claimant's impairment at nine percent, while Dr. Neff did 
 
            not assess any impairment.  Permanent restrictions have also 
 
            been imposed upon claimant.  It is the determination of the 
 
            undersigned that claimant has a functional impairment.
 
            
 
                 Claimant alleges he is industrially disabled.  He 
 
            claims he has a reduction in his earning capacity.  Claimant 
 
            is 38 years old.  He has obtained a GED after struggling 
 
            with the math portion of the test.  Claimant has permanent 
 
            restrictions placed on him.  His treating physician has 
 
            stated in writing that claimant is unable to return to the 
 
            construction industry as either a laborer or a carpenter.
 
            
 
                 Claimant has had specialized training as a cook.  
 
            Positions in the food service industry are always available.  
 
            Subsequent to his injury, claimant had worked in a 
 
            restaurant for approximately eight days.  He voluntarily 
 
            terminated his employment because he felt the job was too 
 
            physically demanding.  No physician or vocational 
 
            rehabilitation expert has stated that claimant is incapable 
 
            of performing restaurant duties.  Claimant has refused to 
 
            attempt work as a short order cook.  It is acknowledged that 
 
            the pay scale is often very low in the food service industry 
 
            and that if claimant is successful in obtaining employment, 
 
            his rate of pay will probably be less than what he has 
 
            earned in the construction industry.  Claimant does not 
 
            appear especially motivated to seek employment.
 
            
 
                 Claimant has been offered a position as a maintenance 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            man in Arizona.  The position did pay $800 a month plus rent 
 
            and utilities.  Claimant has decided not to take the 
 
            position.  He claims his decision is based upon advice from 
 
            his then attorney.
 
            
 
                 Claimant has been mildly cooperative with the 
 
            individuals at the Iowa State Vocational Rehabilitation 
 
            Facility.  At least he has given lip service to the idea of 
 
            retraining.  The undersigned is not entirely convinced that 
 
            claimant is actually desirous of the same.
 
            
 
                 Therefore, in light of the foregoing, it is the 
 
            determination of the undersigned that claimant has a 25 
 
            percent permanent partial disability commencing on May 31, 
 
            1988.
 
            
 
                 The next issue to address is the rate of weekly 
 
            benefits to which claimant is entitled.  The parties have 
 
            agreed that claimant was single at the time of his injury.  
 
            Also at the time of the injury, claimant had one dependent 
 
            child.  He would be entitled to two exemptions.  The 
 
            appropriate code section to use is section 85.36(7).  The 
 
            section reads:
 
            
 
                 In the case of an employee who has been in the 
 
                 employ of the employer less than thirteen calendar 
 
                 weeks immediately preceding the injury, the 
 
                 employee's weekly earnings shall be computed under 
 
                 subsection 6, taking the earnings, not including 
 
                 overtime or premium pay, for such purpose to be 
 
                 the amount the employee would have earned had the 
 
                 employee been so employed by the employer the full 
 
                 thirteen calendar weeks immediately preceding the 
 
                 injury and had worked, when work was available to 
 
                 other employees in a similar occupation.
 
            
 
                 Using paragraph (7) the gross weekly wages are $248.52.  
 
            Using the July 1, 1987 Guide to Iowa Workers' Compensation 
 
            Claim Handling, the appropriate rate is $160.67 per week.  
 
            Therefore, claimant is to be compensated at that rate.
 
            
 
                 The parties have stipulated that claimant is entitled 
 
            to and has been paid for healing period benefits from 
 
            October 23, 1987 to November 8, 1987 and from November 24, 
 
            1987 through May 30, 1988.  This is a period of 29.429 
 
            weeks.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants are to pay one hundred twenty-five (125) 
 
            weeks of permanent partial disability benefits at the weekly 
 
            rate of one hundred sixty and 67/l00 dollars ($160.67) per 
 
            week commencing on May 31, 1988.
 
            
 
                 Defendants are to pay twenty-nine point four-two-nine 
 
            (29.429) weeks of healing period benefits at the weekly rate 
 
            of one hundred sixty and 67/l00 dollars ($160.67) per week 
 
            for the period from October 23, 1987 to November 8, 1987 and 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            from November 24, 1987 to May 30, 1988.
 
            
 
                 Payments that have accrued shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 Defendants shall receive credit for all benefits 
 
            previously paid and not credited.
 
            
 
                 Costs of the action shall be assessed to defendants 
 
            pursuant to Division of Industrial Services Rule 343 IAC 
 
            4.33.
 
            
 
                 Defendants shall file a claim activity report upon 
 
            payment of this award.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of December, 1990.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harold B. Heslinga
 
            Attorney at Law
 
            118 N Market St
 
            Oskaloosa  IA  52577
 
            
 
            Mr. E. J. Kelly
 
            Attorney at Law
 
            Suite 111, Terrace Center
 
            2700 Grand Ave
 
            Des Moines  IA  50312