BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         GARY J. RAMBOUSEK,            :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :      File No. 868336
 
         HY-VEE FOOD STORES, INC.,     :
 
                                       :         A P P E A L
 
              Employer,                :
 
                                       :       D E C I S I O N
 
         and                           :
 
                                       :
 
         EMPLOYERS MUTUAL CASUALTY     :
 
         COMPANY,                      :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
              The record, including the transcript of the hearing before 
 
         the deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.
 
         
 
                                      ISSUES
 
         
 
              Defendants state the following issues on appeal:
 
         
 
              1.  The Deputy Industrial Commissioner erred in 
 
              concluding that defendant, Hy-Vee, was responsible for 
 
              an aggravation in claimant's condition which occurred 
 
              after he left Hy-Vee's employment.
 
         
 
              2.  The Deputy Industrial Commissioner erred in relying 
 
              on Dr. Transfeldt's medical opinion regarding causation 
 
              since it was based upon an inaccurate medical history.
 
         
 
              3.  The Deputy Industrial Commissioner erred in failing 
 
              to find that claimant's last injurious harm which 
 
              necessitated surgery was the result of repetitive 
 
              trauma to his back while working as a truck driver for 
 
              his subsequent employer.
 
         
 
              4.  The Deputy Industrial Commissioner erred in 
 
              disallowing the testimony of Dr. Sinning that the last 
 
              precipitating his need for surgery was his driving a 
 
              dump truck.
 
         
 
              5.  The Deputy Industrial Commissioner erred in failing 
 
              to conclude that there could be no apportionment of 
 
              claimant's disability to any injury he sustained at 
 
              Hy-Vee since there was no disability, in the 
 
              compensation sense, until after claimant's aggravation 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
              at Tschiggfrie.
 
         
 
              6.  The Deputy Industrial Commissioner erred in finding 
 
              claimant met his burden of proof that his disability 
 
              was causally related to an injury on August 10, 1987.
 
         
 
              Claimant states the following issue on cross-appeal:  "The 
 
         Deputy erred in awarding Mr. Rambousek only twenty-five percent 
 
         (25%) industrial loss for the disability sustained."
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The findings of fact contained in the proposed agency 
 
         decision filed June 5, 1991 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.
 
         
 
              *****
 
         
 
              Claimant is a 29-year-old high school graduate who also has 
 
         two years of technical school and two years of college.  
 
         Claimant's exhibits 28 through 30 indicate his school courses and 
 
         grades.  It appears claimant's technical school grades were less 
 
         than a C and he failed all his college courses at the University 
 
         of Dubuque except one for which he received no credit and his 
 
         Loras College records appear to show he received a "C" in one 
 
         course and no credit in another.  Claimant's work history prior 
 
         to beginning work with defendant employer in 1981 mainly involved 
 
         working at McDonalds and construction work when needed, home 
 
         insulation and dry wall and cleanup-type labor jobs.
 
         
 
              Claimant began working for defendant employer in 1981 at 
 
         their discount store, Sav-U-More, and around 1986 to 1987, moved 
 
         into the same stocker-checker position at a new Hy-Vee store.  He 
 
         described his work as including stocking the dairy case and other 
 
         departments and unloading two semis a day with an electric lift.  
 
         Claimant said the shelves are stocked by hand and the weight of 
 
         the objects stocked range from 5 to 80 pounds.  He described in 
 
         more detail his job duties.
 
         
 
              Claimant related he regularly played a lot of softball, 
 
         water and snow skied prior to August 10, 1987 and had no back 
 
         problems except some stiffness at times.  Claimant contends he 
 
         had no prior work injuries except a muscle pull in 1982 in which 
 
         he was off one to two weeks and then went back to work.
 
         
 
              Claimant testified that on August 10, 1987, at approximately 
 
         3:00 a.m., while working the baby food isle, he stopped to pick
 
         
 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         up a case of baby food and his back gave out.  He said he was 
 
         unable to bend back into a normal position.  After resting and 
 
         notifying his supervisor, claimant was unable to continue work 
 
         and left early that day.  Claimant indicated that through a 
 
         friend who works at a hospital, claimant was able to make a quick 
 
         appointment with Eugene Herzberger, M.D., a neurosurgeon.  
 
         Claimant indicated he had tests performed and after three days in 
 
         the hospital understood he had three deteriorated discs.  
 
         Claimant was kept off work and wore a corset.  Claimant indicated 
 
         this doctor said he would need an operation some date in the 
 
         future.  On October 27, 1987, claimant was released to return to 
 
         work on November 2, 1987 to run the express lane (Claimant's 
 
         Exhibit 7).  Claimant said this express lane was not really light 
 
         work but the doctor seemed to indicate that it was.
 
         
 
              Claimant contends that defendant employer added on more 
 
         work.  He said his back condition never changed for the better 
 
         when he returned to work.  Claimant indicated that the doctor 
 
         recommended restrictions as to bending, twisting and lifting and 
 
         that they were not honored based on the job duties claimant was 
 
         given upon his return to work.  Claimant indicated that the 
 
         doctor suggested claimant get a desk job and upon inquiry by 
 
         claimant, claimant was told there was no such job available at 
 
         the time.  Claimant said that defendant employer told him he was 
 
         hired as a stocker-checker and that Hy-Vee had no other job for 
 
         him.  Claimant resigned from his employment effective March 24, 
 
         1988.  Claimant's hourly wage at the time was approximately 
 
         $6.75.
 
         
 
              Claimant said that before he quit Hy-Vee, he was approached 
 
         by an acquaintance, Rod Tschiggfrie, as to a job driving a dump 
 
         truck.  Claimant said Rod knew the claimant had a back problem 
 
         and Rod discussed the possible hiring with his father, Ed 
 
         Tschiggfrie, the owner, who then hired the claimant in the spring 
 
         of 1988 after claimant quit defendant employer.
 
         
 
              Claimant described the type of trucks he drove and types of 
 
         air seats and nature of his work.  He emphasized the special 
 
         expensive, elite, air seat he had which fits the person.  
 
         Claimant indicated that driving didn't bother his back again but 
 
         his back always hurt.  Claimant said he never asked Tschiggfrie 
 
         to change his working conditions.  He testified that his back did 
 
         not get worse or better during the spring of 1988 until January 
 
         1989, but he still had the stingers.  Claimant emphasized no 
 
         doctor told him not to drive a dump truck.
 
         
 
              In January 1989 claimant decided he had to do something 
 
         because of the pain and stingers in his back.  He returned to Dr. 
 
         Herzberger who put him in the hospital and requested certain 
 
         tests such as a CT scan and spinal tap.  Claimant understood he 
 
         needed surgery.  The doctor requested a second opinion.
 
         
 
              Claimant had surgery on February 23, 1989, which involved 
 
         inserting a metal rod to stabilize the back.  Due to 
 
         complications, claimant was in the hospital from two to three 
 
         weeks.  He was given a brace (Cl. Ex. 35).  The undersigned did 
 
         not see a need to take this exhibit with him.  Claimant said he 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         was restricted to the bed for one month but was not to lift 
 
         anything except a glass to drink.  Claimant was eventually 
 
         released May 2, 1989 with restrictions of no repetitive bending, 
 
         twisting or lifting.  Claimant returned to Tschiggfrie wearing 
 
         the brace and working as a foreman truck driver.
 
         
 
              Claimant is still working for Tschiggfrie driving a truck.  
 
         He said his back is stable but still has a stiffness and must 
 
         watch what he does.
 
         
 
              Claimant indicated he no longer water or snow skied nor 
 
         plays other sports due to his August 10, 1987 back injury.  His 
 
         lifting is very limited.  Claimant said he is unable to move into 
 
         an operator position, operating heavy equipment such as 
 
         caterpillars and backhoes in which he could make more money.  
 
         Claimant said his pay now is $9.82 per hour and heavy operators 
 
         make approximately $13.00 per hour.  He indicated he was offered 
 
         a roofing job but did not take it because of the lifting.  
 
         Claimant emphasized he never hurt his back while working except 
 
         for the August 10, 1987 Hy-Vee injury.  Claimant stated he 
 
         carries a medical card in his wallet because the steel rod in his 
 
         back sets off the alarms in the airport.
 
         
 
              Claimant acknowledged he applied for Tschiggfrie's job March 
 
         20, 1988 (Defendants' Ex. 4) and last worked for Hy-Vee on March 
 
         21, 1988, and resigned effective March 24, 1988.  Claimant 
 
         acknowledged he owned a 20-foot inboard-outboard boat, 300-325 
 
         h.p. which had a top speed of about 57 to 58 miles per hour.  
 
         Claimant couldn't recall if he raced the boat in competition.  
 
         Claimant said he now owns a 28-foot inboard-outboard boat with 
 
         450 h.p. Chevy twin screws with a top speed of 54-55 miles per 
 
         hour.  He indicated he has only had his boat out once this year.  
 
         Claimant acknowledged boating is his hobby and did a lot of 
 
         boating before his 1989 surgery.
 
         
 
              Claimant acknowledged accidents in 1981, 1982, 1984 and 
 
         1985, but they appear to be insignificant as to the issues in 
 
         this case at bar.
 
         
 
              Claimant admitted he saw no doctor between October 27, 1987 
 
         and January 20, 1989, other than for his DOT physical in January 
 
         1988 (Def. Ex. 10).
 
         
 
              Claimant's attention was called to defendants' exhibit 11, a 
 
         disability claim form with claimant's signature thereon.  
 
         Claimant acknowledged that the disability square was checked as 
 
         the result of sickness and not employment.  He said he did not 
 
         check the boxes but that they were checked by the nurse who asked 
 
         him the questions.  He indicated he didn't read the form before
 
         
 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         he signed it.  He said he was already offered the job at 
 
         Tschiggfrie when he signed it.  Claimant made approximately $6.75 
 
         when he left Hy-Vee on March 24, 1988.  Claimant's income in 1990 
 
         was $18,624 and he was laid off only a few days and has worked 
 
         all of 1991 so far.  Claimant said he has worked an average of 60 
 
         hours per week so far in 1991.  Claimant emphasized he left 
 
         defendant employer because of his restrictions and not because he 
 
         wanted to leave the job.  He claims Dr. Herzberger suggested he 
 
         leave defendant employer because of his back troubles.
 
         
 
              The parties stipulated as to what Patricia Rambousek, 
 
         claimant's mother, and Paul Neyens, claimant's grandfather, would 
 
         testify.  Patricia would testify as to claimant's problems 
 
         continuing from his Hy-Vee August 10, 1987 injury until he left 
 
         his Hy-Vee job.  She would testify that prior to August 1987, 
 
         claimant was in good health and was living at home with her.  
 
         
 
              Paul Neyens would testify that claimant lived with him for 
 
         several months prior to January 1989 and that claimant had pain 
 
         in his lower back which bothered him during this time.  He would 
 
         also testify that claimant stayed with him after claimant's 
 
         surgery to which claimant was restricted, as the claimant 
 
         testified.
 
         
 
              Jim Conzett works for defendant employer and previously for 
 
         their subsidiary, a discount store, Sav-U-More, beginning in 
 
         1980.  He has known claimant since 1980 and they has had the same 
 
         type job.  He described their duties and the nature of the job 
 
         and position.
 
         
 
              He said claimant never discussed his injury with him.  
 
         Conzett indicated that after claimant's motorcycle accident, 
 
         claimant seemed to walk differently.  Conzett didn't know 
 
         claimant hurt his knee after this accident or why claimant seemed 
 
         to be walking differently.  He noticed nothing as to claimant's 
 
         back.  He acknowledged that claimant still worked as a stocker 
 
         after the motorcycle accident.  Although no date was referred to, 
 
         this appears to be a 1981 motorcycle accident.
 
         
 
              Robert Cass Wisco testified he has been employed with Hy-Vee 
 
         or its subsidiary since December 1980 and met claimant in 1980.  
 
         He and claimant were hired the same day.  He is currently the 
 
         shift manager which is a supervisory position.
 
         
 
              Wisco was in court when claimant testified.  Wisco could not 
 
         recall if claimant was injured on August 10, 1987 or not.  He 
 
         indicated he first heard about the injury the day after it 
 
         occurred, whatever day that was.  He indicated claimant worked 
 
         under him.  He adamantly responded that he did not fill out the 
 
         first report of injury because claimant did not tell him he was 
 
         injured the first day of his injury.  He recalled claimant 
 
         returned to work at a lighter duty job, which he described.
 
         
 
              Wisco did not know why claimant left in March of 1988 as he 
 
         had no discussion with claimant as to not being able to do the 
 
         work.  He said if claimant still worked for Hy-Vee, he would be 
 
         making every bit of $9.00 per hour.  Wisco recalled claimant 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         being off work due to a 1981 motorcycle accident and claimant 
 
         carried himself like he had a low back problem.
 
         
 
              This witness again emphasized his obvious irritation that 
 
         claimant did not tell him the night he got hurt and this is why 
 
         he did not file a report.  On cross-examination, however, he 
 
         seemed to indicate he could not remember if claimant told him.  
 
         He said he doesn't know the night claimant was hurt.  *****
 
         
 
              Rod Tschiggfrie testified through his deposition on April 
 
         24, 1991 that he is currently a supervisor for Tschiggfrie 
 
         Construction Company and has known claimant for six to eight 
 
         years.  He said he and claimant enjoyed a lot of time on the 
 
         river boating, fishing, and enjoying the beach and the sun (Def. 
 
         Ex. 3).
 
         
 
              He indicated the last time he saw claimant water-ski was 
 
         approximately five summers ago.  He described the boat claimant 
 
         has owned in the past and the one he currently owns.
 
         
 
              He said his father hired claimant as a truck driver around 
 
         March 24, 1988.  He said he and his father were aware of 
 
         claimant's back problems (Def. Ex. 3, p. 10).
 
         
 
              Tschiggfrie said claimant averaged 50 hours per week in 
 
         1988.  He described the trucks claimant drove and the nature of 
 
         claimant's work.  He said all these trucks had air ride seats.  
 
         He said claimant is currently driving a nine forward gear stick 
 
         shift and making $10.30 per hour or more.  He indicated claimant 
 
         would shift gears in this 1978 Mack truck approximately 25 to 30 
 
         times in a 45 minute period.  Tschiggfrie indicated he has been 
 
         one of several supervisors over claimant.
 
         
 
              He said claimant has never told him he hurt his back from 
 
         March 1988 to the present (Def. Ex. 3, p. 22).  He said he 
 
         approached the claimant in 1988 with a job offer while claimant 
 
         was working at Hy-Vee.  He acknowledged that claimant would be 
 
         driving over rough terrain at times, but the majority of 
 
         claimant's time is driving on smooth surfaces.  Tschiggfrie said 
 
         he noticed a difference in claimant's carriage or gate 
 
         approximately six months after claimant was hired.  This six 
 
         months would be around September or October 1988.  He said 
 
         claimant told him his back was hurting (Def. Ex. 3, p. 33).  He 
 
         said he and claimant always talked about his Hy-Vee back injury 
 
         and claimant wished he could just get his back straightened out.  
 
         He said claimant returned to work for Tschiggfrie after his 
 
         surgery doing typically the same type of work that he did before 
 
         his surgery.  He indicated he took special care of claimant 
 
         because he knew of his back problems.  He said Tschiggfrie's 
 
         heavy equipment operators make $12.25 to $13.10 per hour.
 
         
 
              Michael Schute testified through his deposition on June 19, 
 
         1990, that he is an employee of Tschiggfrie Excavating and has 
 
         been office manager since December 1987 and employee of defendant 
 
         employer beginning in 1985 (Def. Ex. 1).
 
         
 
              He said claimant began working for defendant employer in the 
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         spring of 1988.  It appears from the record that claimant was 
 
         working for Tschiggfrie Excavating.  Mr. Schute explained that 
 
         actually claimant was paid by Tschiggfrie Storage which is a 
 
         nonunion division of the excavating company.
 
         
 
              He related claimant's hourly pay is $9.30 per hour as a dump 
 
         truck driver.  He said claimant made no claim for injuries with 
 
         Tschiggfrie Excavating.  He said claimant is a good worker and 
 
         his job is driving trucks.  The work is seasonal and he works 
 
         from 7:00 to 8:00 a.m. to 5:00 to 6:00 p.m.  He indicated in some 
 
         instances claimant would get in the truck and not get out until 
 
         the end of the day and on other occasions may require five or six 
 
         times a day in which he would get in and out of the truck.  He 
 
         emphasized claimant is required to do no maintenance work.
 
         
 
              The August 11, 1987 letter of Dr. Herzberger, a 
 
         neurosurgeon, indicates on that day claimant was having severe 
 
         bilateral back spasms triggered by a lifting incident.  His CT 
 
         scan of the lumbar spine on August 11, 1987, indicated large 
 
         bulging pseudo herniation disc at grade II to III 
 
         spondylolisthesis of L5-S1 (Cl. Ex. 3, p. 3).  There was 
 
         degenerative sclerosis of the disc space.  On August 13, 1987, 
 
         the doctor indicated that a form of spinal fusion may need to be 
 
         considered depending on how claimant gets along (Cl. Ex. 5, p. 
 
         5).  Claimant indicated to the doctor he would like to try light 
 
         duty work even though he is in pain.  By January 20, 1989, 
 
         claimant's clinical condition deteriorated to such an extent Dr. 
 
         Herzberger put him in the hospital for a myelogram and a CT scan 
 
         of the lumbar spine (Cl. Ex. 11, p. 18).  The doctor, on January 
 
         26, 1989, indicated Dr. Cairns recommended a type of internal 
 
         fixation which he personally would not want to do (Cl. Ex. 5, p. 
 
         6).
 
         
 
              An x-ray in 1982 (Cl. Ex. 8, p. 9), shows claimant had a 
 
         bilateral spondylolysis.
 
         
 
              On January 25, 1989, it was recommended claimant have 
 
         surgery (Cl. Ex. 15, p. 23).  On February 23, 1989, claimant had 
 
         surgery which consisted of the removal of three posterior element 
 
         L5, bilateral decompression L5 nerve roots from central canal to 
 
         and beyond the foramen, posterior spinal fusion L4 to sacrum with 
 
         Edwards instrumentation and right posterior iliac crest bone 
 
         graft (Cl. Ex. 20, p. 31).  On May 12, 1989, Ensor E. Transfeldt, 
 
         M.D., assistant professor at the University of Minnesota 
 
         Department of Orthopaedic Surgery, wrote:
 
         
 
     
 
         
 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
         5.   I've suggested to him that he should stay 
 
         away from any work that requires repeated bending, 
 
         or lifting, and I've certainly suggested that he 
 
         should stay away from the operating of heavy 
 
         equipment.
 
         
 
              6. It is difficult to anticipate the exact length of 
 
                 his disability and impairment at this time until he 
 
                 has made a complete recovery and his condition has 
 
                 plateaued.  He has a fairly significant problem and 
 
                 will need to have a solid fusion before he is 
 
                 allowed to proceed without any restrictions.  As 
 
                 I've indicated there is even a possibility that he 
 
                 made need [sic] repeat surgery if his fusion does 
 
                 not become solid, and these decisions cannot be made 
 
                 at this time.
 
         
 
         (Cl. Ex. 24, p. 38)
 
         
 
              On November 7, 1989, Dr. Transfeldt wrote:
 
         
 
              We will now let him return to his normal activities of 
 
              daily living and sports.  
 
         
 
              I had however, suggested that he stay away from any 
 
              work that requires repeated bending, lifting, or 
 
              twisting, or any heavy manual work.  I also think that 
 
              it is wise for him to say away from driving certain 
 
              heavy equipment vehicles such as caterpillars which he 
 
              has done in the past.
 
         
 
         (Cl. Ex. 26, p. 40)
 
         
 
              Dr. Herzberger testified through his deposition on April 18, 
 
         1991 (Cl. Ex. 37).  He examined claimant on August 11, 1987 and 
 
         related his initial diagnosis of a two or three grade 
 
         spondylolisthesis and that claimant was born with 
 
         spondylolisthesis.  The doctor prescribed, on August 13, 1987, 
 
         that claimant wear a corset for back support and avoid heavy 
 
         lifting and see what happens.  The doctor indicated if claimant's 
 
         problems continue, then claimant will need a spinal fusion (Cl. 
 
         Ex. 37, p. 7).  On October 27, 1987, he told claimant he could go 
 
         back and try light duty work.  The doctor did not see claimant 
 
         again until January 20, 1989, at which time claimant had more 
 
         pain and now numbness in both legs when he walked some distance 
 
         and had severe lumbosacral muscle spasm.  The doctor agreed 
 
         claimant did not have such severe symptoms in 1987.  After having 
 
         a CT and myelogram performed and consulting Dr. Cairns, an 
 
         orthopedic surgeon, Dr. Herzberger concluded claimant required a 
 
         fusion and removal of a disc.  Dr. Herzberger does not do this 
 
         type of fusion, as a neurosurgeon.  Because of the condition of 
 
         claimant's back, Dr. Cairns also determined the surgery shall be 
 
         done by specialists in Minneapolis as metal rods, wires, as well 
 
         as a bone graft, would be required (Cl. Ex. 37, p. 11).
 
         
 
              It appears from the doctor's testimony that he didn't think 
 
         claimant's spondylolisthesis changed much from August 1987 to 
 

 
         
 
         Page   9
 
         
 
         
 
         
 
         
 
         claimant's February 1989 surgery.
 
         
 
              The doctor agreed that upon claimant's release of his care 
 
         in October 1987, he would not have recommended claimant going 
 
         back to work driving a dump truck because of the stress and the 
 
         strain on claimant's back which could place his low back 
 
         condition in jeopardy (Cl. Ex. 37, p. 14).
 
         
 
              The doctor said that it isn't always necessary for a person 
 
         who has spondylolisthesis at L5-S1 as claimant has, to have 
 
         surgery.  He gave an example of a 55 year old having no problems 
 
         and then injuring oneself and ending up being told the person has 
 
         spondylolisthesis (Cl. Ex. 37, p. 19).  He agreed that sometimes 
 
         trauma such as lifting or an accident can make spondylolisthesis 
 
         symptomatic.  He was asked about a Dr. Kohler who carried out an 
 
         Iowa Department of Transportation examination on claimant on 
 
         March 24, 1988.  He responded that he is an emergency room 
 
         doctor.  Dr. Herzberger said spondylolisthesis can be in 
 
         remission or asymptomatic and then aggravated again depending on 
 
         the activity (Cl. Ex. 37, p. 26).
 
         
 
              Ensor E. Transfeldt, M.D., assistant professor of orthopedic 
 
         surgery at the University of Minnesota, testified through his 
 
         deposition on December 14, 1990, that claimant was seen in the 
 
         University of Minnesota Clinic on February 6, 1989, at which time 
 
         it was established that the claimant needed surgery.  He 
 
         described spondylolisthesis, which is the same description as was 
 
         given by prior doctors.  He described the surgical procedure (Cl. 
 
         Ex. 36, p. 6).  He said that on April 25, 1989, claimant was 
 
         relieved of his leg pain and not really having any back pain.  
 
         The doctor said there are many patients with spondylolisthesis 
 
         that are asymptomatic and only become symptomatic should they 
 
         have any major injury and its only after they have had an injury 
 
         and developed pain that x-rays are taken and that people mention 
 
         their spondylolisthesis (Cl. Ex. 36, pp. 13-14).  The doctor 
 
         indicated he would not recommend claimant engage in operating 
 
         heavy equipment, especially if it required a lot of bumping and 
 
         rough riding.  He somewhat qualified it if the equipment has the 
 
         new design of protective equipment, he then might allow claimant 
 
         to operate such equipment (Cl. Ex. 36, p 15).  The doctor 
 
         acknowledged that climbing in and out of trucks more than once an 
 
         hour can have a major impact on claimant's condition.  Likewise, 
 
         the doctor said spondylolisthesis is generally a stable condition 
 
         in adults and claimant would be considered an adult.  Based on 
 
         what he knows of claimant's history, Dr. Transfeldt opined that 
 
         claimant's injury of August 1987 was a major contributing factor 
 
         to his subsequent disability.  The doctor had limited recall of 
 
         the claimant's history (Cl. Ex. 37, p. 27).  The doctor currently 
 
         recommends claimant stay away from bending, twisting, lifting, 
 
         heavy labor and to reconsider his desire to continue with heavy 
 
         equipment operating, including dump trucks (Cl. Ex. 36, p. 27).  
 
         The doctor said claimant should have a lighter duty-type job but 
 
         not necessarily a sedentary job to help because of his back 
 
         condition.  The doctor opined claimant had a 22.5 percent body as 
 
         a whole impairment based on the Minnesota statute which he said 
 
         is very similar to the AMA Guides but is not based on range of 
 
         motion but on other criteria (Cl. Ex. 36, pp. 35-36).  The doctor 
 

 
         
 
         Page  10
 
         
 
         
 
         
 
         
 
         feels repetitive traumas in operating heavy equipment may be a 
 
         contributing factor to claimant's condition which he treated.  He 
 
         then opined that "I think that given the patient's history and 
 
         the onset of pain that his original injury was more than likely 
 
         the major contributing factor and that injury was probably more 
 
         of a contributing factor, and the subsequent work may have been 
 
         aggravating factors other than major contributing factors." (Cl. 
 
         Ex. 36, p. 39)
 
         
 
              John Sinning, Jr., M.D., an orthopedic surgeon, testified 
 
         through his deposition on April 19, 1991, that he reviewed a 
 
         number of records pertaining to the claimant's medical care and 
 
         treatment and that at the end of that review he issued a report 
 
         on October 9, 1989, and wrote a report on October 27, 1989.  He 
 
         acknowledged he has never seen claimant or any x-ray film.  Dr. 
 
         Sinning indicated spondylolisthesis can happen as a result of a 
 
         specific injury, ordinary heavy lifting or repetitive lifting.  
 
         It may happen spontaneously (Def. Ex. 2, p. 7).  The doctor 
 
         proceeded to testify from his notes which he made from Dr. 
 
         Herzberger's record pertaining to the claimant.  Dr. Sinning 
 
         concluded that claimant's activity of driving a dump truck 
 
         between March 1988 and January 1989 substantially aggravated 
 
         claimant's spondylolisthesis, bringing about claimant's need for 
 
         surgery in 1989 and causing his back condition (Def. Ex. 2, pp. 
 
         14, 18).
 
         
 
              *****
 
         
 
              The doctor testified he would not have advised claimant to 
 
         drive a truck based on what he saw of claimant's x-rays in 1987 
 
         because truck driving represents a repetitive trauma.  The doctor 
 
         said seeing or examining the claimant would not have given him 
 
         any additional information as to his ultimate conclusions (Cl. 
 
         Ex. 2, p. 19).
 
         
 
              In his testimony, the doctor was referred to two letters 
 
         dated October 9, 1989 and October 27, 1989 (Dep. Ex. 3; Def. Ex. 
 
         8).  He indicated in both of these letters that claimant's work 
 
         at Hy-Vee either on August 10, 1987 or succession of days doing 
 
         heavy lifting either caused or significantly aggravated 
 
         claimant's back.  He further opined that employment at both Hy-
 
         Vee and Tschiggfrie must be considered as significant 
 
         contributors to claimant's back and leg pain problem.  The doctor 
 
         admitted he had none nor was he given by defendants' attorney 
 
         more specific information as to the truck claimant was driving 
 
         other than that claimant was a truck driver operating 
 
         construction-type trucks.
 
         
 
              *****
 
         
 
              Dr. Sinning agreed with the comment of Drs. Herzberger and 
 
         Transfeldt that it is quite common for a person with congenital 
 
         spondylolisthesis to go a lifetime without any problems that a 
 
         patient would notice (Def. Ex. 2, p. 29).  He also related that 
 
         if a person reaches adulthood (early twenties) without having 
 
         symptoms then somatic spondylolisthesis is related to some 
 
         activity and not a spontaneous onset.  He indicated his 
 

 
         
 
         Page  11
 
         
 
         
 
         
 
         
 
         experience then is that the symptoms then usually arise from some 
 
         kind of traumatic injury or repetitious-type injury or some 
 
         combination of the two with people whose spondylolisthesis has 
 
         become symptomatic after thirteen years.  On November 7, 1989, 
 
         Dr. Transfeldt wrote:  "I had however, suggested that he stay 
 
         away from any work that requires repeated bending, lifting, or 
 
         twisting, or any heavy manual work.  I also think that it is wise 
 
         for him to say away from driving certain heavy equipment vehicles 
 
         such as caterpillars which he has done in the past." (Cl. Ex. 26, 
 
         p. 40)
 
         
 
              On November 20, 1990, Dr. Transfeldt wrote:
 
         
 
                 In the final analysis, this patient will always be 
 
              at risk for having back problems.  It is important for 
 
              him to stay away from work that requires repeated 
 
              bending, lifting, and twisting.  He has a great work 
 
              ethic and in spite of his disability and discomfort he 
 
              does seem to be pushing ahead.  I'd like to review him 
 
              again in approximately 1 year and if he has any 
 
              problems in the meantime, I'll be glad to see him 
 
              sooner.  This patient basically has reached maximum 
 
              medical improvement, but he is at risk for continuing 
 
              to have intermittent back pain and problems in the 
 
              future.  It is certainly conceivable that he could 
 
              develop degenerative disc disease above the level of 
 
              his fusion or he may in fact have problems related to 
 
              the current fusion mass should he be involved in any 
 
              significant injuries.
 
         
 
         (Def. Ex. 9)
 
         
 
              On October 9, 1989 (Def. Ex. 8), Dr. Sinning, who had 
 
         testified through his deposition, wrote: "It is my opinion that 
 
         employment, both at Hy-Vee and at Tschiggfrie, must be considered 
 
         as significant contributors to Mr. Rambousek's back and leg pain 
 
         problem." (Def. Ex. 8, p. 2)
 
         
 
              Defendants contend that claimant's current disability and 
 
         the surgery he required in February 1989 was the result of 
 
         another injury, namely, a repetitive-type injury resulting from 
 
         claimant's driving a truck for Tschiggfrie Construction Company 
 
         after his August 10, 1987 injury and after he left the defendant 
 
         employer in March 1988 up to January 20, 1989, when he visited a 
 
         doctor and ultimate back surgery was performed in February 1989.  
 
         It is undisputed that claimant incurred an injury on August 10, 
 
         1987 that arose out of and in the course of his employment and 
 
         that healing period had been paid in 1987.  *****
 
         
 
              The greater weight of medical evidence indicates that 
 
         claimant incurred an injury on August 10, 1987, which materially 
 
         contributed to and exacerbated and lighted up his 
 
         spondylolisthesis condition.  There is also evidence that 
 
         claimant's subsequent occupation as a truck driver was a 
 
         contributing aggravating factor to his spondylolisthesis 
 
         condition.  The greater weight of medical evidence further shows 
 
         that claimant was not having problems with his congenital 
 

 
         
 
         Page  12
 
         
 
         
 
         
 
         
 
         spondylolisthesis condition prior to August 10, 1987, and was 
 
         working unhampered by that condition.  The specialists who gave 
 
         testimony all agreed that a spondylolisthesis condition can be 
 
         activated or aggravated by a specific trauma or a repetitive 
 
         trauma and that a person can have the spondylolisthesis condition 
 
         for years and not have any effects from that condition until a 
 
         specific injury or repetitive injury occurs at which time such a 
 
         condition is usually discovered.
 
         
 
              Claimant is very motivated and accepted an offer from a 
 
         friend to work as a truck driver, which position the claimant 
 
         thought and still contends is more suitable work at a higher pay 
 
         than continuing to work with Hy-Vee, taking into consideration 
 
         the requirements of the job and the lifting.  The record 
 
         indicates that Hy-Vee had no other light duty job for claimant 
 
         which would require no lifting or would come within claimant's no 
 
         bending, twisting or lifting restrictions.  It appears defendant 
 
         employer's position was that claimant was hired as a stocker and 
 
         therefore that is the type of work he would have to do if he 
 
         stayed employed.
 
         
 
              The evidence indicates that the medical specialists did not 
 
         seem enthused that claimant was driving a truck taking into 
 
         consideration his back condition.  *****  Claimant was working at 
 
         a job at more pay than he would be getting if he was working and 
 
         able to do the work with defendant employer.  This, of course, 
 
         will affect claimant's earning capacity.  In other words, he has 
 
         a lesser loss of earning capacity than he would otherwise.
 
         
 
              Dr. Transfeldt testified that:
 
         
 
              Mr. Rambousek has always tended to be a stoic, very 
 
              hard-working individual who tends to push himself 
 
              harder than he probably should.  He's a great worker, 
 
              but I have always had some concerns about Mr. Rambousek 
 
              in this particular situation because of the rather 
 
              significant problem that he had, and I felt that he 
 
              needed to protect himself.  So we did talk a little bit 
 
              about the future, and I did recommend to him once again 
 
              that he should consider staying with work that does not
 
         
 
         
 
         Page  13
 
         
 
         
 
         
 
         
 
         require any repeated bending, lifting or twisting and 
 
         he should really be careful about protecting himself.
 
         
 
         (Cl. Ex. 36, p. 10)
 
         
 
              The undersigned finds that claimant was injured on August 
 
         10, 1987, and that this injury left him in such condition, 
 
         including the substantial material aggravation of his latent 
 
         preexisting spondylolisthesis condition, that claimant was left 
 
         in a weakened condition.  It is further found that claimant's 
 
         condition was such that any type of work which would use 
 
         claimant's transferable skills and physical ability could and 
 
         would and in this instance did, in fact, aggravate and continue 
 
         to aggravate claimant's condition brought about by his August 10, 
 
         1987 injury.  The undersigned finds that claimant's surgery in 
 
         February 1989 and healing period of January 20, 1989 through May 
 
         2, 1989 was the result of claimant's August 10, 1987 injury, and 
 
         that any traumas or repetitive problems that might have occurred 
 
         as a result of driving a truck were the result of the condition 
 
         caused by claimant's August 10, 1987 injury and were not new or 
 
         separate injuries.  Defendants cite Bearce v. F. M. C. 
 
         Corporation, 465 N.W.2d 531 (Iowa 1991) as authority to 
 
         contribute this injury to a repetitive injury that allegedly took 
 
         place in 1988 or 1989.  *****  Claimant's August 10, 1987 work 
 
         injury and its effect on claimant's spondylolisthesis condition 
 
         resulted in a February 1989 surgery which resulted in a fusion 
 
         and a permanent injury, impairment, restrictions and disability 
 
         to the claimant.  The undersigned finds that this was caused by 
 
         claimant's August 10, 1987 work injury.
 
         
 
              *****
 
         
 
              The undersigned cannot speculate as to what the whole future 
 
         holds for claimant.  Claimant is making as much money now as he 
 
         would be if he were still working for defendant employer taking 
 
         into consideration any increase in pay.  Claimant, likewise, is 
 
         making less at his current job than he would if he was able to 
 
         operate certain heavy equipment.  The undersigned must consider 
 
         claimant's current situation taking into consideration his 
 
         present income, job status, along with other criteria in trying 
 
         to determine claimant's industrial disability and loss of earning 
 
         capacity.  There is no evidence that claimant's other activities 
 
         have contributed to or affected claimant's current medical 
 
         condition.  *****  Claimant is not totally disabled.
 
         
 
              Taking into consideration claimant's age, prior medical and 
 
         work history and subsequent medical and work history, his 
 
         transferable skills, his education, the location of his injury, 
 
         the severity, the healing period, his motivation, functional 
 
         impairment and restrictions, the undersigned finds that claimant 
 
         currently has a 25 percent industrial disability.
 
         
 
              The parties stipulated that claimant was off work January 
 
         20, 1989 through May 2, 1989, although there was a dispute as to 
 
         whether claimant would be entitled to any benefits for said 
 
         period.  In light of the above findings, the undersigned finds 
 
         that claimant is entitled to a healing period beginning January 
 

 
         
 
         Page  14
 
         
 
         
 
         
 
         
 
         20, 1989 through May 2, 1989, amounting to 14.714 weeks.  The 
 
         undersigned further finds that claimant's industrial disability 
 
         and healing period are causally connected to an August 10, 1987 
 
         work injury.
 
         
 
              The parties disputed the payment of the medical bills that 
 
         basically were incurred as a result of claimant's return for 
 
         medical care in January 1989, subsequent hospitalization and 
 
         surgery.  These bills are represented by claimant's exhibit 27.  
 
         The 85.27 issue involving these bills involved causal connection 
 
         of said bills to an August 10, 1987 work injury and 
 
         authorization.  In light of the above ruling, the undersigned 
 
         finds that defendants shall pay all of claimant's medical bills 
 
         as represented by claimant's exhibit 27 and those other expenses 
 
         that were incidental thereto, including mileage, lodging, meals 
 
         and parking.
 
         
 
              *****
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The conclusions of law contained in the proposed agency 
 
         decision filed June 5, 1991 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 injury of August 10, 1987 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 

 
         
 
         Page  15
 
         
 
         
 
         
 
         
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812, 815 (1962).
 
         
 
              The Iowa Supreme Court cites, apparently with approval, the 
 
         C.J.S. statement that the aggravation should be material if it is 
 
         to be compensable.  Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's 
 
         Compensation sec. 555(17)a.
 
         
 
              Our supreme court has stated many times that a claimant may 
 
         recover for a work connected aggravation of a preexisting 
 
         condition.  Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 
 
         N.W. 35 (1934).  See also Auxier v. Woodward State Hosp. Sch., 
 
         266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 
 
         N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 
 
         704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299; Ziegler 
 
         v. United States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 (1960).
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler, 252 Iowa 613, 620, 106 N.W.2d 591, and 
 
         cases cited.
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore 
 
         plain that the legislature intended the term `disability' to mean 
 
         `industrial disability' or loss of earning capacity and not a 
 
         mere `functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              *****
 
         
 
              [The first issue to be resolved is whether certain testimony 
 
         of Dr. Sinning should be allowed.  Administrative agencies are 
 
         not bound by technical rules of evidence.  McConnell v. Iowa 
 
         Dept. of Job Service, 327 N.W.2d 234 (Iowa 1982).  Claimant's 
 
         objection to the testimony was that it called for a legal 
 
         conclusion and an improper conclusion on the part of the witness.  
 
         The objection, based upon a technical point of evidence, should 
 
         not result in the exclusion of the testimony.  Dr. Sinning's 
 

 
         
 
         Page  16
 
         
 
         
 
         
 
         
 
         response to the question posed will be considered and given 
 
         appropriate weight.
 
         
 
              The other issues raised by defendants will be discussed in 
 
         the order given above.
 
         
 
              The defendant employer was clearly responsible for an 
 
         aggravation of claimant's condition.  Claimant was asymptomatic 
 
         until the work injury of August 10, 1987.  The parties stipulated 
 
         the injury arose out of and in the course of his employment.  
 
         After the injury, he missed work, returned to light duty, and 
 
         eventually left employment with defendant employer because he was 
 
         unable to do the work he was hired to do.  The work injury was a 
 
         substantial cause in aggravating claimant's preexisting 
 
         condition.  Defendant employer is not responsible for aggravation 
 
         of claimant's condition that occurred after he left employment.  
 
         The holding in this case relates to the aggravation caused by his 
 
         employment with defendant employer.  It should be noted that Dr. 
 
         Herzberger recognized at the time of the injury that treatment 
 
         was needed and surgery was a possibility.
 
         
 
              The weight to be given medical expert testimony is for the 
 
         trier of fact to decide.  While Dr. Transfeldt's opinion may have 
 
         been based on some inaccurate history, the history is accurate 
 
         enough in this case that his opinion can be considered.  This 
 
         opinion combined with other medical opinions demonstrate by the 
 
         greater weight of the medical evidence that there was a causal 
 
         connection between claimant's injury and his alleged disability.
 
         
 
              Claimant did not need significant medical attention, if any, 
 
         for his back condition prior to his work injury on August 10, 
 
         1987.  Immediately after the injury he sought and received care 
 
         several times between August and October 1987.  The medical 
 
         evidence in this case, more particularly the records of Dr. 
 
         Herzberger, indicate the surgery was contemplated immediately 
 
         after the work injury.  Claimant's work injury eventually 
 
         necessitated surgery.  His work injury was a substantial factor 
 
         in bringing about the need for surgery.  It is not necessary that 
 
         the work injury be the sole cause of the need for medical 
 
         treatment.  In this case the injury was a substantial factor.
 
         
 
              Claimant had a disability following his work-related injury.  
 
         He attempted light duty work and eventually terminated his 
 
         employment with defendant employer when he was unable to do the 
 
         job he was hired to do.  At that point in time claimant had an 
 
         industrial disability because he had a loss of earning capacity.  
 
         The loss of earning capacity from the work injury with defendant 
 
         employer was 25 percent.
 
         
 
              The greater weight of medical evidence in this case, based 
 
         upon the opinions of Drs. Transfeldt and Herzberger, proves a 
 
         causal connection between claimant's work injury and his 
 
         disability.  While it was Dr. Sinning's opinion that claimant's 
 
         activity of driving a dump truck aggravated claimant's condition, 
 
         Dr. Sinning indicated that claimant's work injury with defendant 
 
         employer must also be considered a significant contributor to 
 
         claimant's back problem.
 

 
         
 
         Page  17
 
         
 
         
 
         
 
         
 
         
 
              Claimant asserts that his industrial disability is greater 
 
         than 25 percent.  When all relevant factors which were more 
 
         thoroughly discussed above are considered, claimant's industrial 
 
         disability is 25 percent as a result of his work injury on August 
 
         10, 1987.]
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants shall pay claimant healing period benefits 
 
         for the period of January 20, 1989 through May 2, 1989, involving 
 
         fourteen point seven one four (14.714) weeks at the rate of one 
 
         hundred forty-nine and 93/100 dollars ($149.93) per week.
 
         
 
              That defendants shall pay claimant one hundred twenty-five 
 
         (125) weeks of permanent partial disability benefits at the rate 
 
         of one hundred forty-nine and 93/100 dollars ($149.93) per week 
 
         beginning May 3, 1989.
 
         
 
              That defendants shall pay claimant's medical bills and the 
 
         direct expenses connected therewith, as represented by claimant's 
 
         exhibit 27.  Said bills amount to thirty thousand nine hundred 
 
         ten and 38/100 dollars ($30,910.38).
 
         
 
              That defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against the award for weekly 
 
         benefits previously paid.
 
         
 
              That defendants shall pay interest on benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              That claimant and defendants shall share equally the costs 
 
         of the appeal including transcription of the hearing.  Defendants 
 
         shall pay all other costs.  Defendants shall reimburse claimant 
 
         for the filing fee if previously paid by claimant.
 
         
 
     
 
         
 
         
 
         Page  18
 
         
 
         
 
         
 
         
 
         That defendants shall file an activity report upon payment of 
 
         this award as required by this agency, pursuant to rule 343 IAC 
 
         3.1.
 
         
 
              Signed and filed this ____ day of September, 1992.
 
         
 
         
 
         
 
         
 
                                       ________________________________
 
                                                BYRON K. ORTON
 
                                           INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James M. Heckmann
 
         Attorney at Law
 
         One CyCare Plaza, Ste 216
 
         Dubuque, Iowa 52001
 
         
 
         Mr. E. J. Giovannetti
 
         Ms. Valerie A. Fandel
 
         Attorneys at Law
 
         2700 Grand Ave., Ste 111
 
         Des Moines, Iowa 50312
 
         
 
         
 
              
 
 
            
 
 
 
 
 
 
 
 
 
                                          1108; 1803; 2206; 5-2500
 
                                          Filed September 30, 1992
 
                                          Byron K. Orton
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            GARY J. RAMBOUSEK,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 868336
 
            HY-VEE FOOD STORES, INC.,     :
 
                                          :         A P P E A L
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL CASUALTY     :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1108; 1803
 
            Found 29-year-old claimant to have a 25 percent industrial 
 
            disability which is causally connected to his August 10, 
 
            1987 work injury.
 
            
 
            2206
 
            Found claimant's August 10, 1987 work injury substantially 
 
            and materially aggravated claimant's latent preexisting 
 
            spondylolisthesis condition.
 
            
 
            5-2500
 
            Found defendants shall pay claimant's medical bills, etc, of 
 
            $30,910.38.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            GARY J. RAMBOUSEK,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 868336
 
            HY-VEE FOOD STORES, INC.,     :
 
                      :     A R B I T R A T I O N
 
                 Employer, :
 
                      :       D E C I S I O N
 
            and       :
 
                      :
 
            EMPLOYERS MUTUAL CASUALTY     :
 
            COMPANY,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            STATEMENT OF THE CASE
 
            This case came on for hearing on May 2, 1991, at Dubuque, 
 
            Iowa.  This is a proceeding in arbitration wherein claimant 
 
            seeks compensation for permanent partial disability benefits 
 
            as a result of an alleged injury occurring on August 10, 
 
            1987.  The record in the proceedings consist of the 
 
            testimony of claimant, claimant's mother, Patricia 
 
            Rambousek, Jim Conzett, and Robert Cass Wisco; claimant's 
 
            exhibits 1 through 38; and defendants' exhibits 1 through 
 
            11, exhibit 11 being received for a limited purpose.
 
            At the beginning of the hearing, a copy of defendants' 
 
            motion for leave to amend defendants' answer was presented 
 
            to the undersigned.  This motion was filed on April 30, 
 
            1991.  Defendants' motion was for the purpose of changing 
 
            their prior answer filed July 7, 1989, in which they 
 
            admitted that claimant sustained a personal injury arising 
 
            out of and in the course of his employment on August 10, 
 
            1987, resulting in temporary disability for a period of 
 
            eleven weeks and six days from August 11, 1987 through 
 
            November 1, 1987, for which the claimant has been fully 
 
            compensated.  The undersigned denied defendants' motion on 
 
            the record at the hearing pursuant to claimant's resistance 
 
            to defendants' motion.  The undersigned basically found that 
 
            said amendment would substantially change the issues herein, 
 
            it was not timely filed as the prior answer of defendants 
 
            has been on file approximately 21 months at which time the 
 
            defendants had substantial time to make a decision as to 
 
            amending their answer without waiting until this late date.  
 
            Additionally, the prehearing order filed March 6, 1991 
 
            showed that this was not an issue to be decided at the trial 
 
            of this matter.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            issues
 
            The issues for resolution are:
 
            1.  Whether claimant's alleged disability is causally 
 
            connected to his August 10, 1987 injury;
 
            2.  The nature and extent of claimant's disability and 
 
            entitlement to disability benefits; and
 
            3.  Whether claimant is entitled to 85.27 medical benefits.  
 
            that issue basically is concerned with causal connection and 
 
            authorization and refers to those times set out in 
 
            claimant's exhibit 27.
 
            findings of fact
 
            The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            Claimant is a 29-year-old high school graduate who also has 
 
            two years of technical school and two years of college.  
 
            Claimant's exhibits 28 through 30 indicate his school 
 
            courses and grades.  It appears claimant's technical school 
 
            grades were less than a C and he failed all his college 
 
            courses at the University of Dubuque except one for which he 
 
            received no credit and his Loras College records appear to 
 
            show he received a "C" in one course and no credit in 
 
            another.  Claimant's work history prior to beginning work 
 
            with defendant employer in 1981 mainly involved working at 
 
            McDonalds and construction work when needed, home insulation 
 
            and dry wall and cleanup-type labor jobs.
 
            Claimant began working for defendant employer in 1981 at 
 
            their discount store, Sav-U-More, and around 1986 to 1987, 
 
            moved into the same stocker-checker position at a new Hy-Vee 
 
            store.  He described his work as including stocking the 
 
            dairy case and other departments and unloading two semis a 
 
            day with an electric lift.  Claimant said the shelves are 
 
            stocked by hand and the weight of the objects stock range 
 
            from 5 to 80 pounds.  He described in more detail his job 
 
            duties.
 
            Claimant related he regularly played a lot of softball, 
 
            water and snow skied prior to August 10, 1987 and had no 
 
            back problems except some stiffness at times.  Claimant 
 
            contends he had no prior work injuries except a muscle pull 
 
            in 1982 in which he was off one to two weeks and then went 
 
            back to work.
 
            Claimant testified that on August 10, 1987, at approximately 
 
            3:00 a.m., while working the baby food isle, he stopped to 
 
            pick up a case of baby food and his back gave out.  He said 
 
            he was unable to bend back into a normal position.  After 
 
            resting and notifying his supervisor, claimant was unable to 
 
            continue work and left early that day.  Claimant indicated 
 
            that through a friend who works at a hospital, claimant was 
 
            able to make a quick appointment with Eugene Herzberger, 
 
            M.D., a neurosurgeon.  Claimant indicated he had tests 
 
            performed and after three days in the hospital understood he 
 
            had three deteriorated discs.  Claimant was kept off work 
 
            and wore a corset.  Claimant indicated this doctor said he 
 
            would need an operation some date in the future.  On October 
 
            27, 1987, claimant was released to return to work on 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            November 2, 1987 to run the express lane (Claimant's Exhibit 
 
            7).  Claimant said this express lane was not really light 
 
            work but the doctor seemed to indicate that it was.
 
            Claimant contends that defendant employer added on more 
 
            work.  He said his back condition never changed for the 
 
            better when he returned to work.  Claimant indicated that 
 
            the doctor recommended restrictions as to bending, twisting 
 
            and lifting and that they were not honored based on the job 
 
            duties claimant was given upon his return to work.  Claimant 
 
            indicated that the doctor suggested claimant get a desk job 
 
            and upon inquiry by claimant, claimant was told there was no 
 
            such job available at the time.  Claimant said that 
 
            defendant employer told him he was hired as a 
 
            checker-stocker and that Hy-Vee had no other job for him.  
 
            Claimant resigned from his employment effective March 24, 
 
            1988.  Claimant's hourly wage at the time was approximately 
 
            $6.75.
 
            Claimant said that before he quit Hy-Vee, he was approached 
 
            by an acquaintance, Rod Tschiggfrie as to a job driving a 
 
            dump truck.  Claimant said Rod knew the claimant had a back 
 
            problem and Rod discussed the possible hiring with his 
 
            father, Ed Tschiggfrie, the owner, who then hired the 
 
            claimant in the spring of 1988 after claimant quit defendant 
 
            employer.
 
            Claimant described the type of trucks he drove and types of 
 
            air seats and nature of his work.  He emphasized the special 
 
            expensive, elite, air seat he had which fits the person.  
 
            Claimant indicated that driving didn't bother his back again 
 
            but his back always hurt.  Claimant said he never asked 
 
            Tschiggfrie to change his working conditions.  He testified 
 
            that his back did not get worse or better during the spring 
 
            of 1988 until January 1989, but he still had the stingers.  
 
            Claimant emphasized no doctor told him not to drive a dump 
 
            truck.
 
            In January 1989, claimant decided he had to do something 
 
            because of the pain and stingers in his back.  He returned 
 
            to Dr. Herzberger who put him in the hospital and requested 
 
            certain tests such as a CT scan and spinal tap.  Claimant 
 
            understood he needed surgery.  The doctor requested a second 
 
            opinion.
 
            Claimant had surgery on February 23, 1989, which involved 
 
            inserting a metal rod to stabilize the back.  Due to 
 
            complications, claimant was in the hospital from two to 
 
            three weeks.  He was given a brace (Cl. Ex. 35).  The 
 
            undersigned did not see a need to take this exhibit with 
 
            him.  Claimant said he was restricted to the bed for one 
 
            month but was not to lift anything except a glass to drink.  
 
            Claimant was eventually released May 2, 1989 with 
 
            restrictions of no repetitive bending, twisting or lifting.  
 
            Claimant returned to Tschiggfrie wearing the brace and 
 
            working as a foreman truck driver.
 
            Claimant is still working for Tschiggfrie driving a truck.  
 
            He said his back is stable but still has a stiffness and 
 
            must watch what he does.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Claimant indicated he no longer water or snow skis nor plays 
 
            other sports due to his August 10, 1987 back injury.  His 
 
            lifting is very limited.  Claimant said he is unable to move 
 
            into an operator position, operating heavy equipment such as 
 
            caterpillars and backhoes in which he could make more money.  
 
            Claimant said his pay now is $9.82 per hour and heavy 
 
            operators make approximately $13.00 per hour.  He indicated 
 
            he was offered a roofing job but did not take it because of 
 
            the lifting.  Claimant emphasized he never hurt his back 
 
            while working except for the August 10, 1987 Hy-Vee injury.  
 
            Claimant stated he carries a medical card in his wallet 
 
            because the steel rod in his back sets off the alarms in the 
 
            airport.
 
            Claimant acknowledged he applied for Tschiggfrie's job March 
 
            20, 1988 (Defendants' Exhibit 4) and last work for Hy-Vee on 
 
            March 21, 1988, and resigned effective March 24, 1988.  
 
            Claimant acknowledged he owned a 20-foot inboard-outboard 
 
            boat, 300-325 h.p. which had a top speed of about 57 to 58 
 
            miles per hour.  Claimant couldn't recall if he raced the 
 
            boat in competition.  Claimant said he now owns a 28-foot 
 
            inboard-outboard boat with 450 h.p. Chevy twin screws with a 
 
            top speed of 54-55 miles per hour.  He indicated he has only 
 
            had his boat out once this year.  Claimant acknowledged 
 
            boating is his hobby and did a lot of boating before his 
 
            1989 surgery.
 
            Claimant acknowledged accidents in 1981, 1982, 1984 and 
 
            1985, but they appear to be insignificant as to the issues 
 
            in this case at bar.
 
            Claimant admitted he saw no doctor between October 27, 1987 
 
            and January 20, 1989, other than for his DOT physical in 
 
            January 1988 (Def. Ex. 10).
 
            Claimant's attention was called to defendants' exhibit 11, a 
 
            disability claim form with claimant's signature thereon.  
 
            Claimant acknowledged that the disability square was checked 
 
            as the result of sickness and not employment.  He said he 
 
            did not check the boxes but that they were checked by the 
 
            nurse who asked him the questions.  He indicated he didn't 
 
            read the form before he signed it.  He said he was already 
 
            offered the job at Tschiggfrie when he signed it.  Claimant 
 
            made approximately $6.75 when he left Hy-Vee on March 24, 
 
            1988.  Claimant's income in 1990 was $18,624 and he was laid 
 
            off only a few days and has worked all of 1991 so far.  
 
            Claimant said he has worked an average of 60 hours per week 
 
            so far in 1991.  Claimant emphasized he left defendant 
 
            employer because of his restrictions and not because he 
 
            wanted to leave the job.  He claims Dr. Herzberger suggested 
 
            he leave defendant employer because of his back troubles.
 
            The parties stipulated as to what Patricia Rambousek, 
 
            claimant's mother, and Paul Neyens, claimant's grandfather, 
 
            would testify.  Patricia would testify as to claimant's 
 
            problems continuing from his Hy-Vee August 10, 1987 injury 
 
            until he left his Hy-Vee job.  She would testify that prior 
 
            to August 1987, claimant was in good health and was living 
 
            at home with her.  
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Paul Neyens would testify that claimant lived with him for 
 
            several months prior to January 1989 and that claimant had 
 
            pain in his lower back which bothered him during this time.  
 
            He would also testify that claimant stayed with him after 
 
            claimant's surgery to which claimant was restricted, as the 
 
            claimant testified.
 
            Jim Conzett works for defendant employer and previously for 
 
            their subsidiary, a discount store, Sav-U-More, beginning in 
 
            1980.  He has known claimant since 1980 and they has had the 
 
            same type job.  He described their duties and the nature of 
 
            the job and position.
 
            He said claimant never discussed his injury with him.  
 
            Conzett indicated that after claimant's motorcycle accident, 
 
            claimant seemed to walk differently.  Conzett didn't know 
 
            claimant hurt his knee after this accident or why claimant 
 
            seemed to be walking differently.  He noticed nothing as to 
 
            claimant's back.  He acknowledged that claimant still worked 
 
            as a stocker after the motorcycle accident.  Although no 
 
            date was referred to, the undersigned notes this appears to 
 
            be a 1981 motorcycle accident.
 
            Robert Cass Wisco testified he has been employed with Hy-Vee 
 
            or its subsidiary since December 1980 and met claimant in 
 
            1980.  He and claimant were hired the same day.  He is 
 
            currently the shift manager which is a supervisory position.
 
            Wisco was in court when claimant testified.  Wisco could not 
 
            recall if claimant was injured on August 10, 1987 or not.  
 
            He indicated he first heard about the injury the day after 
 
            it occurred, whatever day that was.  He indicated claimant 
 
            worked under him.  He adamantly responded that he did not 
 
            fill out the first report of injury because claimant did not 
 
            tell him he was injured the first day of his injury.  He 
 
            recalled claimant returned to work at a lighter duty job, 
 
            which he described.
 
            Wisco did not know why claimant left in March of 1988 as he 
 
            had no discussion with claimant as to not being able to do 
 
            the work.  He said if claimant still worked for Hy-Vee, he 
 
            would be making every bit of $9.00 per hour.  Wisco recalled 
 
            claimant being off work due to a 1981 motorcycle accident 
 
            and claimant carried himself like he had a low back problem.
 
            This witness again emphasized his obvious irritation that 
 
            claimant did not tell him the night he got hurt and this is 
 
            why he did not file a report.  On cross-examination, 
 
            however, he seemed to indicate he could not remember if 
 
            claimant told him.  He said he doesn't know the night 
 
            claimant was hurt.  The undersigned noted that claimant was 
 
            very argumentive and defensive while testifying.  He seemed 
 
            to take this matter personally.
 
            Rod Tschiggfrie testified through his deposition on April 
 
            24, 1991 that he is currently a supervisor for Tschiggfrie 
 
            Construction Company and has known claimant for six to eight 
 
            years.  He said he and claimant enjoyed a lot of time on the 
 
            river boating, fishing, enjoying the beach and the sun (Def. 
 
            Ex. 3).
 
            He indicated the last time he saw claimant water-ski was 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            approximately five summers ago.  He described the boat 
 
            claimant has owned in the past and the one he currently 
 
            owns.
 
            He said his father hired claimant as a truck driver around 
 
            March 24, 1988.  He said he and his father were aware of 
 
            claimant's back problems (Def. Ex. 3, p. 10).
 
            Tschiggfrie said claimant averaged 50 hours per week in 
 
            1988.  He described the trucks claimant drove and the nature 
 
            of claimant's work.  He said all these trucks had air ride 
 
            seats.  He said claimant is currently driving a nine forward 
 
            gear stick shift and making $10.30 per hour or more.  He 
 
            indicated claimant would shift gears in this 1978 Mack truck 
 
            approximately 25 to 30 times in a 45 minute period.  
 
            Tschiggfrie indicated he has been one of several supervisors 
 
            over claimant.
 
            He said claimant has never told him he hurt his back from 
 
            March 1988 to the present (Def. Ex. 3, p. 22).  He said he 
 
            approached the claimant in 1988 with a job offer while 
 
            claimant was working at Hy-Vee.  He acknowledged that 
 
            claimant would be driving over rough terrain at times, but 
 
            the majority of claimant's time is driving on smooth 
 
            surfaces.  Tschiggfrie said he noticed a difference in 
 
            claimant's carriage or gate approximately six months after 
 
            claimant was hired.  This six months would be around 
 
            September or October 1988.  He said claimant told him his 
 
            back was hurting (Def. Ex. 3, p. 33).  He said he and 
 
            claimant always talked about his Hy-Vee back injury and 
 
            claimant wished he could just get his back straightened out.  
 
            He said claimant returned to work for Tschiggfrie after his 
 
            surgery doing typically the same type of work that he did 
 
            before his surgery.  He indicated he took special care of 
 
            claimant because he knew of his back problems.  He said 
 
            Tschiggfrie's heavy equipment operators make $12.25 to 
 
            $13.10 per hour.
 
            Michael Schute testified through his deposition on June 19, 
 
            1990, that he is an employee of Tschiggfrie Excavating and 
 
            has been office manager since December 1987 and employee of 
 
            defendant employer beginning in 1985 (Def. Ex. 1).
 
            He said claimant began working for defendant employer in the 
 
            spring of 1988.  It appears from the record that claimant 
 
            was working for Tschiggfrie Excavating.  Mr. Schute 
 
            explained that actually claimant was paid by Tschiggfrie 
 
            Storage which is a nonunion division of the excavating 
 
            company.
 
            He related claimant's hourly pay is $9.30 per hour as a dump 
 
            truck driver.  He said claimant made no claim for injuries 
 
            with Tschiggfrie Excavating.  He said claimant is a good 
 
            worker and his job is driving trucks.  The work is seasonal 
 
            and he works from 7:00 to 8:00 a.m. to 5:00 to 6:00 p.m.  He 
 
            indicated in some instances claimant would get in the truck 
 
            and not get out until the end of the day and on other 
 
            occasions may require five or six times a day in which he 
 
            would get in and out of the truck.  He emphasized claimant 
 
            is required to do no maintenance work.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            The August 11, 1987 letter of Dr. Herzberger, a 
 
            neurosurgeon, indicates on that day claimant was having 
 
            severe bilateral back spasms triggered by a lifting 
 
            incident.  His CT scan of the lumbar spine on August 11, 
 
            1987, indicated large bulging pseudo herniation disc at 
 
            grade II to III spondylolisthesis of L5-S1 (Cl. Ex. 3, p. 
 
            3).  There was degenerative sclerosis of the disc space.  On 
 
            August 13, 1987, the doctor indicated that a form of spinal 
 
            fusion may need to be considered depending on how claimant 
 
            gets along (Cl. Ex. 5, p. 5).  Claimant indicated to the 
 
            doctor he would like to try light duty work even though he 
 
            is in pain.  By January 20, 1989, claimant's clinical 
 
            condition deteriorated to such an extent Dr. Herzberger put 
 
            him in the hospital for a myelogram and a CT scan of the 
 
            lumbar spine (Cl. Ex. 11, p. 18).  The doctor, on January 
 
            26, 1989, indicated Dr. Cairns recommended a type of 
 
            internal fixation which he personally would not want to do 
 
            (Cl. Ex. 5, p. 6).
 
            An x-ray in 1982 (Cl. Ex. 8, p. 9), shows claimant had a 
 
            bilateral spondylolysis.
 
            On January 25, 1989, it was recommended claimant have 
 
            surgery (Cl. Ex. 15, p. 23).  On February 23, 1989, claimant 
 
            had surgery which consisted of the removal of three 
 
            posterior element L5, bilateral decompression L5 nerve roots 
 
            from central canal to and beyond the foramen, posterior 
 
            spinal fusion L4 to sacrum with Edwards instrumentation and 
 
            right posterior iliac crest bone graft (Cl. Ex. 20, p. 31).  
 
            On May 12, 1989, Dr. Ensor E. Transfeldt, M.D., assistant 
 
            professor at the University of Minnesota Department of 
 
            Orthopaedic Surgery, wrote:
 
            
 
                 5. I've suggested to him that he should stay away 
 
                    from any work that requires repeated bending, 
 
                    or lifting, and I've certainly suggested that 
 
                    he should stay away from the operating of heavy 
 
                    equipment.
 
            
 
                 6. It is difficult to anticipate the exact length 
 
                    of his disability and impairment at this time 
 
                    until he has made a complete recovery and his 
 
                    condition has plateaued.  He has a fairly 
 
                    significant problem and will need to have a 
 
                    solid fusion before he is allowed to proceed 
 
                    without any restrictions.  As I've indicated 
 
                    there is even a possibility that he made need 
 
                    [sic] repeat surgery if his fusion does not 
 
                    become solid, and these decisions cannot be 
 
                    made at this time.
 
            
 
            (Cl. Ex. 24, p. 38)
 
            On November 7, 1989, Dr. Transfeldt wrote:
 
            We will now let him return to his normal activities of daily 
 
            living and sports.  
 
            I had however, suggested that he stay away from any work 
 
            that requires repeated bending, lifting, or twisting, or any 
 
            heavy manual work.  I also think that it is wise for him to 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            say away from driving certain heavy equipment vehicles such 
 
            as caterpillars which he has done in the past.
 
            
 
            (Cl. Ex. 26, p. 40)
 
            Dr. Herzberger testified through his deposition on April 18, 
 
            1991 (Cl. Ex. 37).  He examined claimant on August 11, 1987 
 
            and related his initial diagnosis of a two or three grade 
 
            spondylolisthesis and that claimant was born with 
 
            spondylolisthesis.  The doctor prescribed, on August 13, 
 
            1987, that claimant wear a corset for back support and avoid 
 
            heavy lifting and see what happens.  The doctor indicated if 
 
            claimant's problems continue, then claimant will need a 
 
            spinal fusion (Cl. Ex. 37, p. 7).  On October 27, 1987, he 
 
            told claimant he could go back and try light duty work.  The 
 
            doctor did not see claimant again until January 20, 1989, at 
 
            which time claimant had more pain and now numbness in both 
 
            legs when he walked some distance and had severe lumbosacral 
 
            muscle spasm.  The doctor agreed claimant did not have such 
 
            severe symptoms in 1987.  After having a CT and myelogram 
 
            performed and consulting Dr. Cairns, an orthopedic surgeon, 
 
            Dr. Herzberger concluded claimant required a fusion and 
 
            removal of a disc.  Dr. Herzberger does not do this type of 
 
            fusion, as a neurosurgeon.  Because of the condition of 
 
            claimant's back, Dr. Cairns also determined the surgery 
 
            shall be done by specialists in Minneapolis as metal rods, 
 
            wires, as well as a bone graft, would be required (Cl. Ex. 
 
            37, p. 11).
 
            It appears from the doctor's testimony that he didn't think 
 
            claimant's spondylolisthesis changed much from August 1987 
 
            to claimant's February 1989 surgery.
 
            The doctor agreed that upon claimant's release of his care 
 
            in October 1987, he would not have recommended claimant 
 
            going back to work driving a dump truck because of the 
 
            stress and the strain on claimant's back which could place 
 
            his low back condition in jeopardy (Cl. Ex. 37, p. 14).
 
            The doctor said that it isn't always necessary for a person 
 
            who has spondylolisthesis at L5-S1 as claimant has, to have 
 
            surgery.  He gave an example of a 55 year old having no 
 
            problems and then injuring oneself and ending up being told 
 
            the person has spondylolisthesis (Cl. Ex. 37, p. 19).  He 
 
            agreed that sometimes trauma such as lifting or an accident 
 
            can make spondylolisthesis symptomatic.  He was asked about 
 
            a Dr. Kohler who carried out an Iowa Department of 
 
            Transportation examination on claimant on March 24, 1988.  
 
            He responded that he is an emergency room doctor.  Dr. 
 
            Herzberger said spondylolisthesis can be in remission or 
 
            asymptomatic and then aggravated again depending on the 
 
            activity (Cl. Ex. 37, p. 26).
 
            Ensor E. Transfeld, M.D., assistant professor of orthopedic 
 
            surgery at the University of Minnesota, testified through 
 
            his deposition on December 14, 1990, that claimant was seen 
 
            in the University of Minnesota Clinic on February 6, 1989, 
 
            at which time it was established that the claimant needed 
 
            surgery.  He described spondylolisthesis, which is the same 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            description as was given by prior doctors.  He described the 
 
            surgical procedure (Cl. Ex. 36, p. 6).  He said that on 
 
            April 25, 1989, claimant was relieved of his leg pain and 
 
            not really having any back pain.  The doctor said there are 
 
            many patients with spondylolisthesis that are asymptomatic 
 
            and only become symptomatic should they have any major 
 
            injury and its only after they have had an injury and 
 
            developed pain that x-rays are taken and that people mention 
 
            their spondylolisthesis (Cl. Ex. 36, pp. 13-14).  The doctor 
 
            indicated he would not recommend claimant engage in 
 
            operating heavy equipment, especially if it required a lot 
 
            of bumping and rough riding.  He somewhat qualified it if 
 
            the equipment has the new design of protective equipment, he 
 
            then might allow claimant to operate such equipment (Cl. Ex. 
 
            36, p 15).  The doctor acknowledged that climbing in and out 
 
            of trucks more than once an hour can have a major impact on 
 
            claimant's condition.  Likewise, the doctor said 
 
            spondylolisthesis is generally a stable condition in adults 
 
            and claimant would be considered an adult.  Based on what he 
 
            knows of claimant's history, Dr. Herzberger opined that 
 
            claimant's injury of August 1987 was a major contributing 
 
            factor to his subsequent disability.  The doctor had limited 
 
            recall of the claimant's history (Cl. Ex. 37, p. 27).  The 
 
            doctor currently recommends claimant stay away from bending, 
 
            twisting, lifting, heavy labor and to reconsider his desire 
 
            to continue with heavy equipment operating, including dump 
 
            trucks (Cl. Ex. 36, p. 27).  The doctor said claimant should 
 
            have a lighter duty-type job but not necessarily a sedentary 
 
            job to help because of his back condition.  The doctor 
 
            opined claimant had a 22.5 percent body as a whole 
 
            impairment based on the Minnesota statute which he said is 
 
            very similar to the AMA Guides but is not based on range of 
 
            motion but on other criteria (Cl. Ex. 36, pp. 35-36).  The 
 
            doctor feels repetitive traumas in operating heavy equipment 
 
            may be a contributing factor to claimant's condition which 
 
            he treated.  He then opined that "I think that given the 
 
            patient's history and the onset of pain that his original 
 
            injury was more than likely the major contributing factor 
 
            and that injury was probably more of a contributing factor, 
 
            and the subsequent work may have been aggravating factors 
 
            other than major contributing factors." (Cl. Ex. 36, p. 39)
 
            John Sinning, Jr., M.D., an orthopedic surgeon, testified 
 
            through his deposition on April 19, 1991, that he reviewed a 
 
            number of records pertaining to the claimant's medical care 
 
            and treatment and that at the end of that review he issued a 
 
            report on October 9, 1989, and wrote a report on October 27, 
 
            1989.  He acknowledged he has never seen claimant or any x-
 
            ray film.  Dr. Sinning indicated spondylolisthesis can 
 
            happen as a result of a specific injury, ordinary heavy 
 
            lifting or repetitive lifting.  It may happen spontaneously 
 
            (Def. Ex. 2, p. 7).  The doctor proceeded to testify from 
 
            his notes which he made from Dr. Herzberger's record 
 
            pertaining to the claimant.  Dr. Sinning concluded that 
 
            claimant's activity of driving a dump truck between March 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            1988 and January 1989 substantially aggravated claimant's 
 
            spondylolisthesis, bringing about claimant's need for 
 
            surgery in 1989 and causing his back condition (Def. Ex. 2, 
 
            p. 14, 18).
 
            The doctor opined as to whether driving a dump truck and 
 
            moving earth between March 1988 and January 1989 was the 
 
            last injurious harm precipitating claimant's need for 
 
            surgery in January 1989.  Claimant's attorney objected.  The 
 
            objection is sustained for all the reasons given by 
 
            claimant's attorney (Jt. Ex. 2, p. 14).
 
            The doctor testified he would not have advised claimant to 
 
            drive a truck based on what he saw of claimant's x-rays in 
 
            1987 because truck driving represents a repetitive trauma.  
 
            The doctor said seeing or examining the claimant would not 
 
            have given him any additional information as to his ultimate 
 
            conclusions (Cl. Ex. 2, p. 19).
 
            In his testimony, the doctor was referred to two letters 
 
            dated October 9, 1989 and October 27, 1989 (Dep. Ex. 3; Def. 
 
            Ex. 8).  He indicated in both of these letters that 
 
            claimant's work at Hy-Vee either on August 10, 1987 or 
 
            succession of days doing heavy lifting either caused or 
 
            significantly aggravated claimant's back.  He further opined 
 
            that employment at both Hy-Vee and Tschiggfrie must be 
 
            considered as significant contributors to claimant's back 
 
            and leg pain problem.  The doctor admitted he had none nor 
 
            was he given by defendants' attorney more specific 
 
            information as to the truck claimant was driving other than 
 
            that claimant was a truck driver operating construction-type 
 
            trucks.
 
            It appears to the undersigned that the doctor obviously did 
 
            not know the particulars of or the nature of the truck 
 
            driving and not ever having seen claimant was put at a 
 
            disadvantage in making his conclusion as to the effect of 
 
            truck driving on claimant.  It is obvious one's conception 
 
            of truck driving in this area cannot fit all the possible 
 
            truck driving situations.
 
            Dr. Sinning agreed with the comment of Drs. Herzberger and 
 
            Transfeldt that it is quite common for a person with 
 
            congenital spondylolisthesis to go a lifetime without any 
 
            problems that a patient would notice (Def. Ex. 2, p. 29).  
 
            He also related that if a person reaches adulthood (early 
 
            twenties) without having symptoms then somatic 
 
            spondylolisthesis is related to some activity and not a 
 
            spontaneous onset.  He indicated his experience then is that 
 
            the symptoms then usually arise from some kind of traumatic 
 
            injury or repetitious-type injury or some combination of the 
 
            two with people whose spondylolisthesis has become 
 
            symptomatic after thirteen years.  On November 7, 1989, Dr. 
 
            Transfeldt wrote:  "I had however, suggested that he stay 
 
            away from any work that requires repeated bending, lifting, 
 
            or twisting, or any heavy manual work.  I also think that it 
 
            is wise for him to say away from driving certain heavy 
 
            equipment vehicles such as caterpillars which he has done in 
 
            the past." (Cl. Ex. 26, p. 40)
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            On November 20, 1990, Dr. Transfeldt wrote:
 
               In the final analysis, this patient will always be at 
 
            risk for having back problems.  It is important for him to 
 
            stay away from work that requires repeated bending, lifting, 
 
            and twisting.  He has a great work ethic and in spite of his 
 
            disability and discomfort he does seem to be pushing ahead.  
 
            I'd like to review him again in approximately 1 year and if 
 
            he has any problems in the meantime, I'll be glad to see him 
 
            sooner.  This patient basically has reached maximum medical 
 
            improvement, but he is at risk for continuing to have 
 
            intermittent back pain and problems in the future.  It is 
 
            certainly conceivable that he could develop degenerative 
 
            disc disease above the level of his fusion or he may in fact 
 
            have problems related to the current fusion mass should he 
 
            be involved in any significant injuries.
 
            
 
            (Def. Ex. 9)
 
            On October 9, 1989 (Def. Ex. 8), Dr. Sinning, who had 
 
            testified through his deposition, wrote: "It is my opinion 
 
            that employment, both at Hy-Vee and at Tschggfrie, must be 
 
            considered as significant contributors to Mr. Rambousek's 
 
            back and leg pain problem." (Def. Ex. 8, p. 2)
 
            Defendants contend that claimant's current disability and 
 
            the surgery he required in February 1989 was the result of 
 
            another injury, namely, a repetitive-type injury resulting 
 
            from claimant's driving a truck for Tschggfrie Construction 
 
            Company after his August 10, 1987 injury and after he left 
 
            the defendant employer in March 1988 up to January 20, 1989, 
 
            when he visited a doctor and ultimate back surgery was 
 
            performed in February 1989.  It is undisputed that claimant 
 
            incurred an injury on August 10, 1987 that arose out of and 
 
            in the course of his employment and that healing period had 
 
            been paid in 1987.  As was discussed earlier, and as shown 
 
            in the defendants' attempt to back out of their original 
 
            admission that an injury arose out of and in the course of 
 
            claimant's employment, and an attempt to change the issues 
 
            that had been set out in the prehearing report, the facts 
 
            show that claimant did incur an injury that arose out of and 
 
            in the course of his employment on August 10, 1987.  We have 
 
            here a situation which defendants are passing the buck and 
 
            contending there was a subsequent injury.  It would be 
 
            interesting to see the position defendants would take if, in 
 
            fact, we were dealing with a repetitive injury that occurred 
 
            in 1988 or 1989.  From the facts of this case, it would not 
 
            be hard to conclude that defendants would take the position 
 
            that in that scenario that claimant incurred an injury on 
 
            August 10, 1987.
 
            The greater weight of medical evidence indicates that 
 
            claimant incurred an injury on August 10, 1987, which 
 
            materially contributed to and exacerbated and lighted up his 
 
            spondylolisthesis condition.  There is also evidence that 
 
            claimant's subsequent occupation as a truck driver was a 
 
            contributing aggravating factor to his spondylolisthesis 
 
            condition.  The greater weight of medical evidence further 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            shows that claimant was not having problems with his 
 
            congenital spondylolisthesis condition prior to August 10, 
 
            1987, and was working unhampered by that condition.  The 
 
            specialists who gave testimony all agreed that a 
 
            spondylolisthesis condition can be activated or aggravated 
 
            by a specific trauma or a repetitive trauma and that a 
 
            person can have the spondylolisthesis condition for years 
 
            and not have any effects from that condition until a 
 
            specific injury or repetitive injury occurs at which time 
 
            such a condition is usually discovered.
 
            Claimant is very motivated and accepted an offer from a 
 
            friend to work as a truck driver, which position the 
 
            claimant thought and still contends is more suitable work at 
 
            a higher pay than continuing to work with Hy-Vee, taking 
 
            into consideration the requirements of the job and the 
 
            lifting.  The record indicates that Hy-Vee had no other 
 
            light duty job for claimant which would require no lifting 
 
            or would come within claimant's no bending, twisting or 
 
            lifting restrictions.  It appears defendant employer's 
 
            position was that claimant was hired as a stocker and 
 
            therefore that is the type of work he would have to do if he 
 
            stayed employed.
 
            The evidence indicates that the medical specialists did not 
 
            seem enthused that claimant was driving a truck taking into 
 
            consideration his back condition.  It would be interesting 
 
            to note the defendants' position if claimant decided to quit 
 
            defendant employer and was unable to obtain a job within his 
 
            restrictions and considering his injury, education he would 
 
            receive only minimum wage or less than he was getting at Hy-
 
            Vee.  They most likely would challenge his motivation.  
 
            Claimant was working at a job at more pay than he would be 
 
            getting if he was working and able to do the work with 
 
            defendant employer.  This, of course, will affect claimant's 
 
            earning capacity.  In other words, he has a lesser loss of 
 
            earning capacity than he would otherwise.
 
            Dr. Transfeldt testified that:
 
            Mr. Rambousek has always tended to be a stoic, very hard-
 
            working individual who tends to push himself harder than he 
 
            probably should.  He's a great worker, but I have always had 
 
            some concerns about Mr. Rambousek in this particular 
 
            situation because of the rather significant problem that he 
 
            had, and I felt that he needed to protect himself.  So we 
 
            did talk a little bit about the future, and I did recommend 
 
            to him once again that he should consider staying with work 
 
            that does not require any repeated bending, lifting or 
 
            twisting and he should really be careful about protecting 
 
            himself.
 
            
 
            (Cl. Ex. 36, p. 10)
 
            The undersigned finds that claimant was injured on August 
 
            10, 1987, and that this injury left him in such condition, 
 
            including the substantial material aggravation of his latent 
 
            preexisting spondylolisthesis condition, that claimant was 
 
            left in a weakened condition.  It is further found that 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            claimant's condition was such that any type of work which 
 
            would use claimant's transferable skills and physical 
 
            ability could and would and in this instance did, in fact, 
 
            aggravate and continue to aggravate claimant's condition 
 
            brought about by his August 10, 1987 injury.  The 
 
            undersigned finds that claimant's surgery in February 1989 
 
            and healing period of January 20, 1989 through May 2, 1989 
 
            was the result of claimant's August 10, 1987 injury, and 
 
            that any traumas or repetitive problems that might have 
 
            occurred as a result of driving a truck were the result of 
 
            the condition caused by claimant's August 10, 1987 injury 
 
            and were not new or separate injuries.  Defendants cite 
 
            Bearce v. F. M. C. Corporation, 465 N.W.2d 531 (Iowa 1991) 
 
            as authority to contribute this injury to a repetitive 
 
            injury that allegedly took place in 1988 or 1989.  The 
 
            undersigned finds that the Bearce case is not applicable and 
 
            would take more than imagination to try to relate the Bearce 
 
            facts to the facts in the case at bar.  Claimant's August 
 
            10, 1987 work injury and its effect on claimant's 
 
            spondylolisthesis condition resulted in a February 1989 
 
            surgery which resulted in a fusion and a permanent injury, 
 
            impairment, restrictions and disability to the claimant.  
 
            The undersigned finds that this was caused by claimant's 
 
            August 10, 1987 work injury.
 
            Claimant is fortunate to have a friend that would allow him 
 
            to work at income greater than claimant might otherwise be 
 
            able to obtain taking into consideration his back condition.  
 
            Claimant is in a type of business that is risky taking into 
 
            consideration his back condition and yet the undersigned 
 
            finds that this motivated claimant's desire to earn a decent 
 
            living should not be penalized.
 
            The undersigned cannot speculate as to what the whole future 
 
            holds for claimant.  Claimant is making as much money now as 
 
            he would be if he were still working for defendant employer 
 
            taking into consideration any increase in pay.  Claimant, 
 
            likewise, is making less at his current job than he would if 
 
            he was able to operate certain heavy equipment.  The 
 
            undersigned must consider claimant's current situation 
 
            taking into consideration his present income, job status, 
 
            along with other criteria in trying to determine claimant's 
 
            industrial disability and loss of earning capacity.  There 
 
            is no evidence that claimant's other activities have 
 
            contributed to or affected claimant's current medical 
 
            condition.  Claimant isn't expected to give up living.  
 
            Claimant is not totally disabled.
 
            Taking into consideration claimant's age, prior medical and 
 
            work history and subsequent medical and work history, his 
 
            transferable skills, his education, the location of his 
 
            injury, the severity, the healing period, his motivation, 
 
            functional impairment and restrictions, the undersigned 
 
            finds that claimant currently has a 25 percent industrial 
 
            disability.
 
            The parties stipulated that claimant was off work January 
 
            20, 1989 through May 2, 1989, although there was a dispute 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            as to whether claimant would be entitled to any benefits for 
 
            said period.  In light of the above findings, the 
 
            undersigned finds that claimant is entitled to a healing 
 
            period beginning January 20, 1989 through May 2, 1989, 
 
            amounting to 14.714 weeks.  The undersigned further finds 
 
            that claimant's industrial disability and healing period are 
 
            causally connected to an August 10, 1987 work injury.
 
            The parties disputed the payment of the medical bills that 
 
            basically were incurred as a result of claimant's return for 
 
            medical care in January 1989, subsequent hospitalization and 
 
            surgery.  These bills are represented by claimant's exhibit 
 
            27.  The 85.27 issue involving these bills involved causal 
 
            connection of said bills to an August 10, 1987 work injury 
 
            and authorization.  In light of the above ruling, the 
 
            undersigned finds that defendants shall pay all of 
 
            claimant's medical bills as represented by claimant's 
 
            exhibit 27 and those other expenses that were incidental 
 
            thereto, including mileage, lodging, meals and parking.
 
            As to the authorization issue, defendants denied liability 
 
            for this subsequent medical.  Claimant is entitled to 
 
            medical care and it is found that it is causally connected 
 
            to his August 10, 1987 injury.  Defendants fail on this 
 
            issue of authorization.
 
            conclusions of law
 
            The claimant has the burden of proving by a preponderance of 
 
            the evidence that the injury of August 10, 1987 is causally 
 
            related to the disability on which he now bases his claim.  
 
            Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
            (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 
 
            (1945).  A possibility is insufficient; a probability is 
 
            necessary.  Burt v. John Deere Waterloo Tractor Works, 247 
 
            Iowa 691, 73 N.W.2d 732 (1955).  The question of causal 
 
            connection is essentially within the domain of expert 
 
            testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
            375, 101 N.W.2d 167 (1960). 
 
            However, expert medical evidence must be considered with all 
 
            other evidence introduced bearing on the causal connection.  
 
            Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts 
 
            need not be couched in definite, positive or unequivocal 
 
            language.  Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 
 
            1974).  However, the expert opinion may be accepted or 
 
            rejected, in whole or in part, by the trier of fact.  Id. at 
 
            907.  Further, the weight to be given to such an opinion is 
 
            for the finder of fact, and that may be affected by the 
 
            completeness of the premise given the expert and other 
 
            surrounding circumstances.  Bodish, 257 Iowa 516, 133 N.W.2d 
 
            867.  See also Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967).
 
            While a claimant is not entitled to compensation for the 
 
            results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            The Iowa Supreme Court cites, apparently with approval, the 
 
            C.J.S. statement that the aggravation should be material if 
 
            it is to be compensable.  Yeager v. Firestone Tire & Rubber 
 
            Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. 
 
            Workmen's Compensation sec. 555(17)a.
 
            Our supreme court has stated many times that a claimant may 
 
            recover for a work connected aggravation of a preexisting 
 
            condition.  Almquist v. Shenandoah Nurseries, 218 Iowa 724, 
 
            254 N.W. 35 (1934).  See also Auxier v. Woodward State Hosp. 
 
            Sch., 266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles 
 
            Co., 158 N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 
 
            133 N.W.2d 704 (1965); Olson v. Goodyear Service Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 
 
            N.W.2d 299; Ziegler v. United States Gypsum Co., 252 Iowa 
 
            613, 106 N.W.2d 591 (1960).
 
            An employer takes an employee subject to any active or 
 
            dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler, 252 Iowa 613, 
 
            620, 106 N.W.2d 591, and cases cited.
 
            If claimant has an impairment to the body as a whole, an 
 
            industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).
 
            It is further concluded that:
 
            Claimant's work injury on August 10, 1987 caused claimant to 
 
            subsequently incur additional pain and injury resulting in a 
 
            low back fusion surgery on February 23, 1989.
 
            Claimant's August 10, 1987 work injury caused claimant to 
 
            incur an additional healing period beginning January 20, 
 
            1989 through May 2, 1989, encompassing 14.714 weeks at the 
 
            weekly rate of $149.93.
 
            Claimant's August 10, 1987 work injury substantially and 
 
            materially aggravated and accelerated claimant's preexisting 
 
            latent spondylolisthesis condition, which condition then 
 
            continued to be aggravated and contributed to by claimant's 
 
            subsequent truck driving job.
 
            Any contribution or aggravation resulting from claimant's 
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            truck driving job was a sequelae of his August 10, 1987 work 
 
            injury and not a new specific or repetitive injury.
 
            Any subsequent disability claimant suffered from his truck 
 
            driving, if any, was a proximate result of his original 
 
            August 10, 1987 work injury.
 
            Claimant has incurred restrictions as to bending, twisting 
 
            and lifting as a result of his August 10, 1987 work injury.
 
            Claimant incurred a 25 percent industrial disability as a 
 
            result of his August 10, 1987 work injury.
 
            Claimant's medical bills and direct expenses incurred 
 
            therewith are causally connected to claimant's August 10, 
 
            1987 work injury and are to be paid by defendants.
 
            order
 
            THEREFORE, it is ordered:
 
            That defendants shall pay unto claimant healing period 
 
            benefits for the period of January 20, 1989 through May 2, 
 
            1989, involving fourteen point seven one four (14.714) weeks 
 
            at the rate of one hundred forty-nine and 93/100 dollars 
 
            ($149.93) per week.
 
            That defendants shall pay unto claimant one hundred twenty-
 
            five (125) weeks of permanent partial disability benefits at 
 
            the rate of one hundred forty-nine and 93/100 dollars 
 
            ($149.93) per week beginning May 3, 1989.
 
            That defendants shall pay claimant's medical bills and the 
 
            direct expenses connected therewith, as represented by 
 
            claimant's exhibit 27.  Said bills amount to thirty thousand 
 
            nine hundred ten and 38/100 dollars ($30,910.38).
 
            That defendants shall pay accrued weekly benefits in a lump 
 
            sum and shall receive credit against the award for weekly 
 
            benefits previously paid.
 
            That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            That defendants shall pay the costs of this action, pursuant 
 
            to rule 343 IAC 4.33.
 
            That defendants shall file an activity report upon payment 
 
            of this award as required by this agency, pursuant to rule 
 
            343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of June, 1991.
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            
 
            Copies to:
 
            
 
            Mr James M Heckmann
 
            Attorney at Law
 
            One Cycare Plaza  Ste 216
 
            Dubuque IA 52001
 
            
 
            Mr E J Giovannetti
 
            Ms Valerie A Fandel
 
            Attorneys at Law
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
            Terrace Ctr  Ste 111
 
            2700 Grand Ave
 
            Des Moines IA 50312
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      1108; 1803; 2206
 
                      5-2500
 
                      Filed June 5, 1991
 
                      Bernard J. O'Malley
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            GARY J. RAMBOUSEK,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 868336
 
            HY-VEE FOOD STORES, INC.,     :
 
                      :     A R B I T R A T I O N
 
                 Employer, :
 
                      :       D E C I S I O N
 
            and       :
 
                      :
 
            EMPLOYERS MUTUAL CASUALTY     :
 
            COMPANY,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            1108; 1803
 
            Found 29-year-old claimant to have a 25% industrial 
 
            disability which is causally connected to his August 10, 
 
            1987 work injury.
 
            Found subsequent aggravation of claimant's August 10, 1987 
 
            work injury due to a motivated claimant working as a dump 
 
            truck driver, not a new repetitive injury, but, in fact, a 
 
            sequela to his original August 10, 1987 injury.  Claimant's 
 
            August 10, 1987 injury left claimant in a condition making 
 
            him susceptible to subsequent aggravation of his original 
 
            injury.
 
            
 
            2206
 
            Found claimant's August 10, 1987 work injury substantially 
 
            and materially aggravated claimant's latent preexisting 
 
            spondylolisthesis condition.
 
            
 
            5-2500
 
            Found defendants shall pay claimant's medical bills, etc, of 
 
            $30,910.38.
 
            
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            GARY J. RAMBOUSEK,            :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 868336
 
            vs.                           :
 
                                          :          A P P E A L
 
            HY-VEE FOOD STORES, INC.,     :
 
                                          :        D E C I S I O N
 
                 Employer,                :
 
                                          :     O N   A T T O R N E Y
 
            and                           :
 
                                          :            L I E N
 
            EMPLOYERS MUTUAL CASUALTY     :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                 Claimant's counsel has appealed an order by a deputy 
 
            industrial commissioner dated July 23, 1991.  That order 
 
            denied claimant's counsel's request to modify a previously 
 
            approved attorney lien by permitting a lien on medical 
 
            benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 On July 7, 1989 claimant's counsel submitted a notice 
 
            and request for allowance of attorney lien.  The attorney 
 
            fee contract submitted with that request indicated that the 
 
            contingent fee arrangement between claimant and his counsel 
 
            was for 33 1/3 percent of permanent partial disability 
 
            benefits recovered plus 25 percent of healing period 
 
            benefits recovered.  The request was approved in an order 
 
            filed July 14, 1989.
 
            
 
                 On April 8, 1991 claimant's counsel filed a motion for 
 
            approval of addendum to attorney fee agreement.  The 
 
            claimant's counsel requested a lien on one-third of the 
 
            proceeds payable to claimant's medical providers.  That 
 
            request was denied in an order by a deputy industrial 
 
            commissioner dated July 23, 1991.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Iowa Code section 86.39 provides:
 
            
 
                    All fees or claims for legal, medical, 
 
                 hospital, and burial services rendered under this 
 
                 chapter and chapters 85, 85A, 85B, and 87 are 
 
                 subject to the approval of the industrial 
 
                 commissioner, and no lien for such service is 
 
                 enforceable without the approval of the amount of 
 
                 the lien by the industrial commissioner.  For 
 
                 services rendered in the district court and 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 appellate courts, the attorney's fee is subject to 
 
                 the approval of a judge of the district court.  
 
                 (Emphasis added.)
 
            
 
            No lien for legal services is enforceable without the 
 
            approval of the amount of the lien by the industrial 
 
            commissioner.
 
            
 
                 Claimant's counsel cites no authority which would allow 
 
            a lien against medical benefits.  There are no known Iowa 
 
            Supreme Court cases directly on point.
 
            
 
                 Claimant's counsel's arguments on what should or should 
 
            not be the proper amount of attorney fees are misplaced.  
 
            "In ordinary use a lien is a charge upon property for the 
 
            payment of a specific obligation that is independent of the 
 
            lien."  Federal Land Bank of Omaha v. Boese, 373 N.W.2d 118, 
 
            120 (Iowa 1985).  "A lien is incident to and dependent upon 
 
            the right ... to recover but the right to recover ... is not 
 
            dependent upon the lien.... [F]ailure of the lien does not 
 
            prevent recovery on the obligation ... since it may exist 
 
            without the security the lien provides."  Armour-Dial, Inc. 
 
            v. Lodge & Shipley Co., 334 N.W.2d 142, 145 (Iowa 1983).
 
            
 
                 In this case claimant's counsel has a lien approved for 
 
            one-third of weekly benefits that claimant may recover.  The 
 
            issue to be decided in this case is whether that lien 
 
            provides sufficient security for claimant's obligation to 
 
            pay his counsel for the legal services rendered.  Claimant's 
 
            counsel has presented no argument that the lien on weekly 
 
            benefits is insufficient security for the legal services 
 
            provided.
 
            
 
                 The Iowa Workers' Compensation Laws contemplate a 
 
            system which pays medical care providers for reasonable and 
 
            necessary services in a timely manner.  Allowing an attorney 
 
            lien for legal services on medical services when the legal 
 
            services have sufficient security is inconsistent with that 
 
            system.  The attorney lien on weekly benefits is sufficient 
 
            security for claimant's counsel's legal services.  The 
 
            attorney lien should not extend to medical services.
 
            
 
                 WHEREFORE, the order of the deputy is affirmed.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered that claimant's counsel's 
 
            motion for approval of modified attorney fee agreement to 
 
            include an attorney lien on medical services is denied.
 
            
 
                 Signed and filed this ____ day of September, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                       ________________________________
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. James M. Heckmann
 
            Attorney at Law
 
            One CyCare Plaza, Ste 216
 
            Dubuque, Iowa 52001
 
            
 
            Mr. E. J. Giovannetti
 
            Ms. Valerie A. Fandel
 
            Attorneys at Law
 
            2700 Grand Ave., Ste 111
 
            Des Moines, Iowa 50312
 
            
 
 
            
 
 
 
 
 
 
 
                                            1000; 2505
 
                                            Filed September 30, 1992
 
                                            Byron K. Orton
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            GARY J. RAMBOUSEK,            :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 868336
 
            vs.                           :
 
                                          :          A P P E A L
 
            HY-VEE FOOD STORES, INC.,     :
 
                                          :        D E C I S I O N
 
                 Employer,                :
 
                                          :     O N   A T T O R N E Y
 
            and                           :
 
                                          :            L I E N
 
            EMPLOYERS MUTUAL CASUALTY     :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1000; 2505
 
            Claimant's counsel attempted to modify previously approved 
 
            attorney lien.  The approved lien was for 1/3 of the weekly 
 
            benefits.  Claimant's counsel attempted to modify the lien 
 
            by means of an attorney fee agreement that allowed 1/3 of 
 
            the medical benefits.  It was held that claimant's counsel's 
 
            lien on 1/3 of the weekly benefits was adequate security for 
 
            payment for legal services.  Lien on medical was not 
 
            approved.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1108
 
                           February 7, 1991
 
                           JEAN M. INGRASSIA
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            TERESA R. WEST,               :
 
                                          :    File Nos. 868362 & 877049
 
                 Claimant,                :
 
                                          :      A R B I T R A T I O N
 
            vs.                           :
 
                                          :         D E C I S I O N
 
            IBP, INC.,                    :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            1108
 
            Claimant did not prove by a preponderance of the evidence 
 
            that her work injury is causally related to the disability 
 
            on which she now bases her claim.  Claimant's complaints are 
 
            not supported by clinical and laboratory findings.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CHARLES C. PEARSON,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                         File No. 868373
 
         STONE CONTAINER CORPORATION,
 
                                         A R B I T R A T I 0 N
 
              Employer,
 
                                         D E C I S I 0 N
 
         and
 
         
 
         KEMPER GROUP,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration upon the petition of 
 
         claimant, Charles C. Pearson, against his employer, Stone 
 
         Container Corporation, and its insurance carrier, Kemper Group, 
 
         defendants.  The case was heard in Sioux City, Iowa on March 29, 
 
         1990.  The record in the proceeding consists of the testimony 
 
         from claimant and from plant manager Richard Laing.  The record 
 
         also contains joint exhibits 1-28.
 
         
 
                                      ISSUES
 
         
 
              The sole issue presented for determination is the extent of 
 
         entitlement, if any, to weekly compensation for permanent partial 
 
         disability benefits.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The deputy, having heard the testimony and considered all 
 
         the evidence, finds:
 
         
 
              Claimant is 51 years old.  He commenced his employment with 
 
         defendant on September 12, 1986, where he was hired to work the 
 
         rotary press.  Claimant was required to cut sheets of cardboard, 
 
         bundle the same, and stack the materials for printing.  In May of 
 
         1987, claimant was called back to work after a job layoff.  He 
 
         was placed in the press department where he was required to feed 
 
         sheets of cardboard into a feed-box for printing, cutting, and
 
         
 
         
 
         
 
         PEARSON V. STONE CONTAINER CORPORATION
 
         Page 2
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         stacking. originally, claimant was able to handle the physical 
 
         demands of the job.
 
         
 
              On September 25, 1987, claimant was stacking a load of 
 
         pallets.   Each pallet weighed more than 60 pounds.  Claimant 
 
         reached down, grabbed one and threw it.  He felt a sharp pain in 
 
         his back, left buttock, hip and down his left leg.
 
         
 
              Claimant was treated for his back problems.  Surgery was 
 
         performed by Q. J. Durward, M.D.  Subsequent to the surgery, 
 
         claimant developed venous thrombosis and pulmonary emboli.  He 
 
         was then rehospitalized.  The venous thrombosis and pulmonary 
 
         emboli were the result of the back surgery.
 
         
 
              Dr. Durward released claimant to return to work.  As of May 
 
         18, 1988, claimant was restricted from lifting more than 40 
 
         pounds and from engaging in repetitive bending.  The physician 
 
         assessed a five percent permanent functional impairment to 
 
         claimant as of the aforementioned date.
 
         
 
              J. Michael Donohue, M.D., also treated claimant for his low 
 
         back injury.  Dr. Donohue opined as of May 24, 1988:   "...As of 
 
         5-18-88, I have dropped any lifting restrictions and will release 
 
         the patient for all activities."
 
         
 
              Dr. Donohue also determined in June of 1988:
 
              
 
              Mr. Pearson called today with questions on whether he could 
 
              return to his previous job at his place on [sic] employment.  
 
              This would require lifting up to 100 lbs.  He has been doing 
 
              quite well and although I explained to him that he would at 
 
              increased risk for reinjury with repetitive bending and 
 
              lifting, as he has tolerated all activities including 
 
              strenuous activities at National Guard camp, I believe,it 
 
              would be reasonable to make an attempt at returning to these 
 
              activities.  I cautioned him that if he should develop any 
 
              increased discomfort, he should [sic] contact me through the 
 
              office.  I will plan on relaying this information to Dr. 
 
              Durward.
 
         
 
              Claimant returned to work on March 21, 1988.  He performed 
 
         light duty tasks until he was able to lift up to 100 pounds.  
 
         Claimant then returned to his former position as an operator in 
 
         the 100 inch ward.  He continued in that position until he was 
 
         terminated on December 1, 1988.  The termination is irrelevant to 
 
         this matter.  Eventually, claimant was reinstated by an 
 
         arbitrator.  He returned to work on December 4, 1989, at the rate 
 
         of pay set by the union contract.  At the time of the hearing, 
 
         claimant was earning $9.05 per hour plus benefits.
 
         
 
         
 
         
 
         PEARSON V. STONE CONTAINER CORPORATION
 
         Page 3
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). 
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is proportion" 
 
         ally related to a degree of impairment of bodily function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy.or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability. 
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         PEARSON V. STONE CONTAINER CORPORATION
 
         Page 4
 
         
 
         
 
              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).
 
         
 
              In the case at hand, claimant has returned to the same 
 
         position he had held prior to his work injury.  There is a loss 
 
         of earning capacity in that claimant may not be qualified for all 
 
         positions for which he was formerly capable of performing.  
 
         Claimant is currently receiving the wage rate established by the 
 
         union contract.  He is having few physical difficulties 
 
         performing his job tasks.  Claimant has remained in the army 
 
         guard.  Although claimant is not presently under any work 
 
         restrictions, he does have a five percent functional impairment.  
 
         Claimant has also described intermittent pain which he 
 
         experiences in his low back, hip and buttocks.  To date, this has 
 
         not interfered with the performance of his job duties or with the 
 
         performance of his military duties.
 
         
 
              Therefore, in light of the foregoing, it is the 
 
         determination of the undersigned that claimant has a permanent 
 
         partial disability to the body as a whole in the sum of 10 
 
         percent.  This finding is based upon: 1) the aforementioned 
 
         considerations; 2) based upon the personal observation of 
 
         claimant; 3) based upon claimant's testimony; and, 4) based upon 
 
         agency expertise (Iowa Administrative Procedures Act 17A.14(s).
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants are to pay unto 
 
         claimant fifty (50) weeks of permanent partial disability 
 
         benefits at the stipulated rate of three hundred fifty-nine and 
 
         89/100 dollars ($359.89) per week.
 
         
 
              Payments that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         
 
              Defendants are to be given credit for all benefits 
 
         previously paid claimant as stipulated by the parties;.
 
         
 
              Costs are assessed to defendants pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
              Defendants shall file a claim activity report upon payment 
 
         of this award.
 
         
 
         
 
         
 
         PEARSON V. STONE CONTAINER CORPORATION
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 5
 
         
 
         
 
              Signed and filed this 21st day of May, 1990.
 
         
 
         
 
         
 
         
 
                                         MICHELLE A. McGOVERN
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Harry H. Smith
 
         Attorney at Law
 
         632-640 Badgerow Bldg
 
         P 0 Box 1194
 
         Sioux City  IA  51102
 
         
 
         Mr. Thomas M. Plaza
 
         Attorney at Law
 
         200 Home Federal Bldg
 
         P 0 Box 3086
 
         Sioux City IA 51102
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         5-1803
 
                                         Filed May 21, 1990
 
                                         MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         CHARLES C. PEARSON,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                File No. 868373
 
         STONE CONTAINER CORPORATION,
 
                                             A R B I T R A T I 0 N
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         KEMPER GROUP,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         5-1803
 
         
 
              Claimant was found to have a ten percent permanent partial 
 
         disability.  Claimant had a loss of earning capacity and a five 
 
         percent functional impairment.  Claimant had returned to his 
 
         former position within the plant.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CHARLES C. PEARSON,
 
                                                 File No. 868373
 
              Claimant,
 
                                                     N U N C
 
         VS.
 
                                                    P R 0
 
         STONE CONTAINER CORPORATION,
 
                                                     T U N C
 
              Employer,
 
                                                  O R D E R
 
         
 
         and
 
         
 
         KEMPER GROUP,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
              There was an inadvertent error in the decision and order.  
 
         The proper stipulated rate is two hundred thirty-seven and 39/100 
 
         dollars ($237.39).  All other portions of the decision order 
 
         remain the same.
 
         
 
         
 
              Signed and filed this 25th day of May, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Harry H. Smith
 
         Attorney at Law
 
         632-640 Badgerow Bldg
 
         P 0 Box 1194
 
         Sioux City  IA  51102
 
         
 
         Mr. Thomas M. Plaza
 
         Attorney at Law
 
         200 Home Federal Bldg
 
         P 0 Box 3086
 
         Sioux City IA 51102
 
         
 
         ay of May, 1990.
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         MICHELLE A. McGOVERN
 
         
 
         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CHARLES C. PEARSON,
 
                                                       File No. 868373
 
              Claimant,
 
                                                           N U N C
 
         VS.
 
                                                            P R 0
 
         STONE CONTAINER CORPORATION,
 
                                                           T U N C
 
              Employer,
 
                                                          O R D E R
 
         
 
         and
 
         
 
         KEMPER GROUP,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
              There was an inadvertent error in the decision and order.  
 
         The proper stipulated rate is two hundred thirty-seven and 39/100 
 
         dollars ($237.39).  All other portions of the decision order 
 
         remain the same.
 
         
 
         
 
              Signed and filed this 25th day of May, 1990.
 
         
 
         
 
         
 
         
 
         
 
                                          MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Harry H. Smith
 
         Attorney at Law
 
         632-640 Badgerow Bldg
 
         P 0 Box 1194
 
         Sioux City  IA  51102
 
         
 
         Mr. Thomas M. Plaza
 
         Attorney at Law
 
         200 Home Federal Bldg
 
         P 0 Box 3086
 
         Sioux City IA 51102
 
         
 
         
 
         
 
                                                         
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         DARRELL J. SCHUELLER,         :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :      File No.  868599
 
         SWISS VALLEY FARMS,           :
 
                                       :  A R B I T R A T I O N
 
              Employer,                :
 
                                       :      D E C I S I O N
 
         and                           :
 
                                       :
 
         LIBERTY MUTUAL INSURANCE CO., :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
                                   introduction
 
         
 
              This is a proceeding in arbitration filed by Darrell J. 
 
         Schueller, claimant, against Swiss Valley Farms, employer, and 
 
         Liberty Mutual Insurance Company, insurance carrier, defendants 
 
         for benefits as the result of an alleged injury which occurred on 
 
         an undetermined date in November of 1987.  A hearing was held in 
 
         Dubuque, Iowa, on July 13, 1989, and the case was fully submitted 
 
         at the close of the hearing.  Claimant was represented by Jeffrey 
 
         A. Trannel.  Defendants were represented by Greg A. Egbers.  The 
 
         evidence consists of the testimony of Darrell J. Schueller, 
 
         claimant; Kim M. Schueller, claimant's wife; James P. Hitzler, 
 
         distribution and load-out manager; Thomas R. Kelleher, supervisor 
 
         of the cooler; and joint exhibits 1 through 23.  At the time of 
 
         the hearing, both parties submitted a joint description of 
 
         disputes with the prehearing report, claimant submitted an 
 
         itemized list of costs, and defendants submitted an itemized list 
 
         of costs.  Defendants ordered a copy of the transcript and also 
 
         supplied a copy for the industrial commissioner's file.  Both 
 
         attorneys submitted outstanding posthearing briefs.  
 
         
 
                                      issues
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether claimant sustained an injury on an undetermined date 
 
         on November 1987, which arose out of and in the course of 
 
         employment with employer.  
 
         
 
              Whether the alleged injury was the cause of either temporary 
 
         or permanent disability.
 
         
 
              Whether claimant is entitled to temporary or permanent 
 
         disability benefits, and if so, the extent of benefits to which 
 
         he is entitled.  
 
         
 
              Whether claimant is entitled to medical expenses for medical 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         treatment.
 
         
 
                                 findings of fact
 
         
 
                                      injury
 
         
 
              It is determined that claimant did sustain an injury some 
 
         time in November of 1987, which arose out of and in the course of 
 
         employment with employer.
 
         
 
              Claimant testified that his back stiffened up while working 
 
         in the cooler unloading trucks and helping to load trucks some 
 
         time in November of 1987.  Claimant testified, "There was no 
 
         actual slip or trip or fall, it was an onset over a couple of 
 
         hours of my back stiffening up.  It came from twisting and 
 
         pulling loads of milk." (exhibit 17, pages 8 & 9; transcript pp. 
 
         28 & 29).  The petition alleges an injury date of November 13, 
 
         1987, but claimant testified, "When I further checked I didn't 
 
         even work that night." (ex. 17, p. 9; tr. p. 17).  At the 
 
         hearing, claimant looked at his time cards and testified that the 
 
         injury occurred on November 9, 1987, because it showed he worked 
 
         in the cooler that night (ex. 19; tr., p. 17).  When it was 
 
         pointed out that claimant also worked in the cooler on November 
 
         4, 1987, claimant admitted that could have been the injury date.  
 
         Claimant was not able to give a specific date of injury, other 
 
         than to describe this occurred some time in November of 1987 (tr. 
 
         p. 66).  Defendants agree that the exact day in November 1987 is 
 
         immaterial (tr. p. 67).  No accident report was filled out that 
 
         night and a first report of injury was not filed until January 
 
         11, 1988 (tr. pp. 67, 106, 107; ex. 20).
 
         
 
              Claimant admitted that after the injury he worked 
 
         continuously except for one week of vacation and did not see a 
 
         doctor until he stepped off a tractor and felt pain again while 
 
         employed by his brother on his brother's farm (tr. p. 37).  
 
         Claimant stepped off the tractor on December 2, 1987.  He was 
 
         unable to work on December 3, 1987.  He saw Thomas Greenawalt, 
 
         D.C., on December 4, 1987.  Claimant was also treated by J.W. 
 
         Quinlan, D.C., Dr. Greenawalt's associate.  On December 27, 1987,  
 
         claimant went outside and walked on the ice.  Even though he did 
 
         not fall, this increased his symptoms and Dr. Quinlan referred 
 
         claimant to a neurosurgeon, C.S. Rothberg, M.D., who recommended 
 
         surgery.  Claimant sought a second opinion from R. Scott Cairns, 
 
         M.D., an orthopedic surgeon who performed a laminotomy with 
 
         discectomy with decompression of the fifth nerve root on January 
 
         10, 1988.  
 
         
 
              Dr. Greenawalt believed that the lifting incident at work in 
 
         November of 1987 was, "...was one of the original incidents that 
 
         created this disk problem." (ex. 15, pp. 28 & 29).  Dr. Cairns 
 
         also believed that there was a causal connection between the 
 
         lifting incident at work in November of 1987 and the condition of 
 
         the herniated disc (ex. 16, p. 15).  Dr. Cairns testified, "Well, 
 
         that's just my opinion.  I think that if he has suffered an 
 
         injury with pain in the back, radiation of the left leg in the 
 
         course of his employment and has subsequently been found to have 
 
         a herniated disk, then under Iowa law then we make it as a 
 
         consequence of his employment." (ex. 16, p. 16).  Even though Dr. 
 
         Cairns' opinion appears to be a legal opinion rather than a 
 
         medical opinion, it will also be given some weight as his opinion 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         as a doctor.  Dr. Cairns seemed to base his opinion that the 
 
         employment was a cause of an injury in November of 1987 on the 
 
         fact that claimant had pain in his lower back that went down his 
 
         leg, however, claimant testified that the pain was only in his 
 
         hip (tr. p. 32).  Dr. Cairns said in his letter of February 16, 
 
         1988, "He saw Dr. Quinlan and improved and then he started to 
 
         develop left leg pain." (ex. 10, p. 1).  Thus, the leg pain 
 
         developed after the tractor incident.  Nevertheless, even though 
 
         Dr. Cairns' medical opinion is weakened by the facts he used to 
 
         support it, it will be considered to be his medical opinion for 
 
         what it is worth.  Causal connection is essentially within the 
 
         domain of the expert.  Bradshaw v. Iowa Methodist Hospital, 251 
 
         Iowa 375, 101 N.W.2d 167 (1960).  An accident or specific event 
 
         is not required to have an injury.  Ford v. Goode, 240 Iowa 1219, 
 
         1222, 38 N.W.2d 158, 159 (1949).
 
         
 
              Therefore, since Dr. Greenawalt and Dr. Cairns concluded, as 
 
         treating physicians, that the lifting incident at work in 
 
         November of 1987 was causally connected to claimant's condition, 
 
         it is, therefore, determined that claimant did in fact sustain an 
 
         injury in November of 1987 which arose out of and in the course 
 
         of employment with employer.  This injury is however, more 
 
         specifically a temporary aggravation of claimant's preexisting 
 
         back condition.  Claimant testified that he had intermittent back 
 
         pains for about 10 years which were aggravated by driving a semi 
 
         for employer.  
 
         
 
              The x-rays ordered by Dr. Greenawalt when he first saw 
 
         claimant on December 4, 1987, showed minimal osteoarthritis, 
 
         otherwise, normal lumbar vertebral bodies and no acute fractures 
 
         noted.  Claimant also had a mild spondylolysis at L-5, S-1 disc 
 
         space (ex. 3).  A CT scan of the lumbar spine on the same date 
 
         disclosed:
 
         
 
              1.  Minimal left sided herniated disk superimposed to a 
 
              large bulging disk at L-5, S-1 disk space.
 
         
 
              2.  Moderate broad base bulging annulus at L-4, 5 disk 
 
              space.
 
         
 
              3.   Normal L-3, 4 disk space.
 
         
 
              4.  Minimal lateral recess stenosis at S-1 and 
 
              borderline AP diameter stenosis at L-4 and L-5.
 
         
 
         (exhibit 4)
 
         
 
              It is apparent that these irregularities did not occur from 
 
         a two hour incident of lifting and twisting at work, but rather 
 
         were progressive and developmental over some period of time and 
 
         constitute a preexisting back condition that was aggravated by 
 
         the lifting some time in November 1987.  Dr. Greenawalt testified 
 
         that the narrowing at S-1 and the borderline AP diameter stenosis 
 
         at L-4 and L-5 can be either congenital or developed (ex. 15, p. 
 
         20).  It is determined that this injury was a temporary 
 
         aggravation of claimant's preexisting back condition for the 
 
         reason that claimant did not lose any time from work on account 
 
         of this injury and he did not seek any medical treatment 
 
         following this aggravation injury in November 1987.
 
         
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
                causal connection-temporary disability-permanent 
 
                           disability-medical expenses
 
         
 
              It is determined that the minor temporary aggravation of 
 
         claimant's preexisting condition in November of 1987 was not the 
 
         cause of claimant's time off work, his medical expenses, or any 
 
         permanent disability which he alleged that he sustained.
 
         
 
              Claimant testified, "I stepped off the tractor and I had the 
 
         same pain in my back going to my hip so I quit, I just quit 
 
         working for that day." (tr. p. 37).  Claimant testified that when 
 
         he woke up the next morning, his back seemed to be worse and he 
 
         called in to get time off work. (tr. p. 39).  It was not until 
 
         after claimant stepped off the tractor, a distance of two feet 
 
         (tr. p. 70), working for his brother, that he lost any time from 
 
         work.  The following morning December 3, 1987, claimant was 
 
         unable to work for the fist time.  On December 4, 1987, claimant 
 
         sought out the care of a physician, Dr. Greenawalt, for the first 
 
         time.  Dr. Greenawalt testified, "We always ask as a patient, you 
 
         know, if they're hurt on the job or wherever [sic] they're hurt, 
 
         and he hadn't indicated anything other than just pain, physical 
 
         pain at that time."  (ex. 15, p. 22).  
 
         
 
              The records of Dr. Greenawalt and Dr. Quinlan show that 
 
         claimant improved substantially until the incident of December 
 
         27, 1987, when he walked on the ice, suffered increased pain 
 
         symptoms in his back and was referred to Dr. Rothberg, a medical 
 
         doctor and a neurosurgeon, by Dr. Quinlan.  A lumbar myelogram 
 
         and postmyelogram CT performed on December 31, 1987, at the 
 
         request of Dr. Rothberg, disclosed, "(1) Left sided disc 
 
         herniation at L4-5....(2) Additional disc herniation at L5-S1." 
 
         (ex. 5, p. 2).  
 
         
 
              Dr. Greenawalt, a diplomat of chiropractic orthopedics, 
 
         testified that on December 4, 1987, he recorded, "...`Low back 
 
         pain, left, was acute yesterday,' that was completed the first 
 
         day.  At the time that I saw him we did not arrive as to how it 
 
         happened." (ex. 15, p. 12).  Dr. Greenawalt further recorded on 
 
         December 4, 1987, "Intermittent backaches past 10 years." (ex. 8, 
 
         p. 9).  Dr. Greenawalt further testified that it was not until 
 
         March 2, 1988, that claimant called and reported that he injured 
 
         himself lifting at work about three weeks ago (ex. 15, p. 13).  
 
         Dr. Greenawalt and Dr. Quinlan had last seen claimant on December 
 
         29, 1987 (ex. 8, p. 3).  Dr. Greenawalt further testified that 
 
         claimant came into the office and changed the confidential 
 
         patient case history by answering the question, "How long have 
 
         you had this condition?", with the answer, "three wks." and in 
 
         answer to the question, "What activities aggravate your 
 
         condition?" claimant wrote in the answer, "lifting" (ex. 8, p. 
 
         6).  It was pointed out that the question, "Is this an industrial 
 
         accident case?" was neither marked yes or no, but was left blank 
 
         (ex. 8, p. 5).  
 
         
 
              Claimant testified that he told Dr. Greenawalt that he 
 
         injured himself lifting at work when he first saw him which Dr. 
 
         Greenawalt unequivocally denied (ex. 15, p. 15; tr. pp. 41 & 42).
 
         
 
              Dr. Greenawalt testified that when claimant talked to him on 
 
         March 2, 1988, "...when Darrell had indicated to me on the phone 
 
         that a witness had seen him in a state of pain and limping, 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         was--well, on the job lifting that day, that in my professional 
 
         opinion this was one of the original incidents that created this 
 
         disk problem."  Dr. Greenawalt did not state that the lifting 
 
         incident of November 1987 was the specific cause of the surgery 
 
         or the disability (ex. 15, pp. 28 & 29).
 
         
 
              Dr. Greenawalt's testimony further supports the decision in 
 
         this case by these words:
 
         
 
              And with the history that he had of being a semi truck 
 
              driver for ten years and intermittent back pain over 
 
              that period of time, I could assume that there was some 
 
              degree in stability within that spinal mechanism 
 
              including the disks, and until the point in time that 
 
              something was done and when this individual--as I say, 
 
              he indicated that he had seen him limping in pain on 
 
              the job, in my professional opinion this was an 
 
              incident that had embarrassed the nerve.  Now, 
 
              subsequent incidents could have augmented or aggravated 
 
              that to the point of total disability like he had when 
 
              he came to me.
 
         
 
         (exhibit 15, pp. 45 & 46).
 
         
 
              Dr. Greenawalt testified that as long as he was treating 
 
         claimant, he was never under the impression that it was an 
 
         industrial accident case (ex. 15, p. 46).  
 
         Dr. Greenawalt acknowledged that up through December 28, 1987, 
 
         neither he nor Dr. Quinlan had referred claimant to a
 
         
 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         surgeon even though they had Dr. Chi's x-ray and CT scan reports 
 
         from December 4, 1987.  Based on their review of the x-ray and CT 
 
         scan they did not think referral to a surgeon was necessary until 
 
         December 28, 1987, after claimant walked on the ice.  Up to that 
 
         point in time, their records show that claimant had been 
 
         improving.  This testimony would indicate that the incident of 
 
         walking on the ice, which increased claimant's symptoms, on 
 
         December 27, 1987, is more likely the cause of his surgery and 
 
         disability than the lifting incident in November 1987.
 
         Claimant said he told Dr. Rothberg he hurt his back lifting milk 
 
         cases (tr. pp. 45 & 46).
 
         Dr. Rothberg's only report states:
 
         Mr. Schueller is a 29 year old white male who is a truck driver 
 
         who over the past number of years has been having intermittent 
 
         low back pain aggravated by his truck driving.  He continued in 
 
         this fashion until the 3rd of Dec. '87 when he woke up and 
 
         noticed he had severe right buttock and hip pain and had 
 
         difficulty walking around and getting to work.  Because of the 
 
         severity of the pain he has been unable to get up and go back to 
 
         walk [sic].
 
         
 
         (exhibit 6, page 1)
 
         There was no indication in Dr. Rothberg's report that claimant 
 
         reported to him either the lifting incident at work in November 
 
         of 1987 or stepping off the tractor at his brother's farm on 
 
         December 2, 1987 (ex. 6).
 
         Claimant further testified that he reported the lifting to Dr. 
 
         Cairns when he first saw him on January 5, 1988, but he did not 
 
         remember if he said it was at work or not (tr. p. 50).  Even 
 
         though claimant testified that he told Dr. Cairns that he injured 
 
         his back lifting, Dr. Cairns explicitly testified, "Mr. Schueller 
 
         did not tell me that." (ex. 16, p. 22)  he related that if 
 
         claimant had told him this then it would be recorded in his notes 
 
         and he would have obtained an accident report (ex. 16, pp. 23 & 
 
         23).  However, Dr. Cairns testified that claimant did not recall 
 
         what precipitated his back pain with radiation to his left leg 
 
         (ex. 16, p. 4).  Dr. Cairns said he did report some episodic mild 
 
         back pain on occasion in the past, but nothing severe or 
 
         debilitating (ex. 16, p. 16).  Dr. Cairns summarized the history 
 
         he received as follows:
 
         He stated that on the morning of the 3rd of December he awoke 
 
         with back pain.  He saw a chiropractor at that time and improved, 
 
         but then developed pain in to his left leg.  He had subsequent to 
 
         that time undergone a multitude of diagnostic procedures and had 
 
         been scheduled for surgery and elected to come to see me for 
 
         another opinion.
 
         
 
         (exhibit 16, page 4).
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         
 
              Claimant did not mention the lifting incident at work and he 
 
         did not mention the pain when he jumped off the tractor to Dr. 
 
         Cairns at his initial visit (ex. 16, pp. 16 & 17).  
 
         
 
              Dr. Cairns first reported on February 16, 1988, to the 
 
         insurance carrier as follows:
 
         
 
              Mr. Darrell Schueller is a twenty-nine year old white 
 
              male who was seen by me on 1-5-88 at that request of 
 
              Dr. Quinlan.  He stated that he awoke on 12-3-87 with 
 
              back pain.  He did not recall any precipitating 
 
              incident but stated that he did have some back pain on 
 
              occasion.  He saw Dr. Quinlan and improved and then he 
 
              started to develop left leg pain.
 
         
 
                                    ***
 
         
 
              My initial impression was that this patient had a 
 
              herniated disc at L-4, 5 on the left side with some 
 
              congenital spinal stenosis at this level.
 
         
 
                                    ***
 
         
 
              On 1-10-88 the patient was taken to the operating room 
 
              where he had laminotomy and diskectomy.
 
         
 
         (exhibit 10, pages 1 & 2).
 
         
 
              Dr. Cairns testified that claimant did not tell him that he 
 
         had a work-related injury until April 7, 1988 (ex. 16, p. 9; ex. 
 
         11; ex. 12).
 
         
 
              When Dr. Cairns was asked, "...whether surgery was 
 
         necessitated as a result of the tractor incident, as a result of 
 
         the incident at work or as the result of his general congenital 
 
         condition?" Dr. Cairns replied, "I think that that's an 
 
         administrative or legal decision."  (ex. 16, p. 26).  Thus it 
 
         would appear that Dr. Cairns really did not have a medical 
 
         opinion about the true cause of claimant's surgery and 
 
         disability.
 
         
 
              There are four possible sources that are the cause of 
 
         claimant's time off work, permanent impairment and medical 
 
         expenses.  
 
         
 
              First, claimant had preexisting problems with his back.  The 
 
         x-rays of S. Chi, M.D., on December 4, 1987, showed mild 
 
         osteoarthritis and mild spondylolysis (ex. 3).  The CT scan of 
 
         the lumbar spine by Dr. Chi on December 4, 1987, showed a bulging 
 
         disc and herniation at L-5, S-1, a bulging anulus at L-4, 5 and 
 
         lateral recessed stenosis at L-4 and L-5 (ex. 4).  Claimant 
 
         admitted that he had back pain off and on for approximately 10 
 
         years.  Three doctors, Dr. Greenawalt, Dr. Rothberg and Dr. 
 
         Cairns all showed a history of intermittent back pain of several 
 
         years standing.  The progression of claimant's preexisting back 
 
         condition is a possible cause of the surgery and disability.
 
         
 
              Second, giving due deference to the expert medical opinion 
 
         of Dr. Greenawalt and Dr. Cairns, it has been determined claimant 
 

 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
         did sustain a mild temporary aggravation of his preexisting 
 
         condition in November of 1987 for the reasons that these doctors 
 
         did testify that they believed that claimant had some injury on 
 
         that date, since he felt back pain and pain in his hip.  The 
 
         lifting incident of November 1987 is one of the possible causes 
 
         of claimant's surgery and disability.
 
         
 
              Third, claimant stepped off the tractor on his brother's 
 
         farm on December 2, 1987, a distance of about two feet (tr. p. 
 
         70) from the bottom step to the ground.  Claimant said he stepped 
 
         off' defendants contended that he jumped off.  He felt a pain 
 
         like he had never felt before (ex. 17, p. 29).  He was unable to 
 
         work the following date, December 3, 1987.  He was forced to 
 
         obtain medical treatment from Dr. Greenawalt on December 4, 1987.
 
         
 
              Fourth, claimant went out on the ice outside his home on 
 
         December 27, 1987, to see if it was safe for his wife to go out 
 
         that evening.  He testified that he did not slip or fall, but 
 
         because it was difficult to walk, his back pain increased 
 
         significantly (tr. pp. 45 & 46).  From December 4 to December 28, 
 
         1987, Dr. Greenawalt and Dr. Quinlan reported improvement in 
 
         claimant's back condition.  On December 28, 1987, Dr. Quinlan 
 
         felt it was necessary to refer claimant to a neurosurgeon, Dr. 
 
         Rothberg.
 
         
 
              Thus, since there are four possible causes for claimant's 
 
         disability, it is incumbent upon claimant to sustain the burden 
 
         of proof by a preponderance of the evidence that the lifting 
 
         incident of November 1987 was the cause of his disability and 
 
         medical expenses.  None of the doctors, in particular Dr. 
 
         Greenawalt or Dr. Cairns, testified that this specific injury of 
 
         November 1987 was the specific cause of claimant's time off work, 
 
         surgery, or any permanent impairment that he may have sustained.  
 
         
 
              A realistic look at the evidence indicates that the lifting 
 
         incident while working in the cooler for a few hours one evening, 
 
         when claimant felt pain in his back and his hip, was only a 
 
         temporary aggravation of his preexisting condition because he 
 
         lost no time from work and he did not seek any medical care.  At 
 
         the same time, after claimant stepped off the tractor on December 
 
         2, 1987, and felt a pain like he had never felt before, he had 
 
         severe disabling problems on the morning of December 3, 1987, was 
 
         forced to take time off work and felt compelled to see Dr. 
 
         Greenawalt on December 4, 1987.  Thus it would appear that the 
 
         most probable cause of claimant's time off work, surgery and any 
 
         permanent impairment would more likely be the tractor incident on 
 
         December 2, 1987.
 
         
 
              Or it could be stated that walking on the ice was the cause 
 
         for claimant's time off work, surgery and any disability for the 
 
         reason that after that incident he was referred to a medical 
 
         doctor and the lumbar myelogram and postmyelogram CT showed a 
 
         left sided disc herniation of L4-5 and an additional disc 
 
         herniation at L5-S1 which then required surgery.  Thus, it is 
 
         more likely that walking on the ice on December 27, 1987, was the 
 
         cause of claimant's time off work, surgery and any permanent 
 
         disability then the brief lifting exertion at some unknown date 
 
         in November of 1987.  
 
         
 
              James Hitzler, distribution and load-out manager, testified 
 

 
         
 
         Page   9
 
         
 
         
 
         
 
         
 
         by deposition, that on Saturday, December 5, 1987, claimant came 
 
         into the office and told him that he would be off for two weeks 
 
         because he hurt his back.  Hitzler testified, "I asked if it were 
 
         a work-related accident.  He said he didn't think so.  He thought 
 
         he injured it on the farm." (ex. 21, p. 12).  About two weeks 
 
         later, claimant came back to the office and talked to Hitzler, 
 
         "...and again we discussed the possibility of the accident having 
 
         occurred at work or asked again if it would possibly have 
 
         happened at work, and he thought that with his work it could very 
 
         likely have been." (ex. 21, p. 14).  At the hearing, Hitzler 
 
         testified that when claimant called in to be off work on 
 
         Thursday, December 3, 1987, claimant did not mention what caused 
 
         his back pain.  When claimant came in the office, Hitzler 
 
         testified, "I asked him if it was a work related injury and he 
 
         said no, he didn't think so.  He thought he had done it at his 
 
         brother's farm jumping off a tractor." (tr. p. 105).  Hitzler 
 
         further testified, "...just before the surgery [he] asked if we 
 
         could go back and write it as a work comp because he did say at 
 
         that point that he thought a lot of it might have happened at 
 
         work..." (tr. p. 105).  At that time a first report of injury was 
 
         submitted (tr. p. 105).  A colloquy between claimant's counsel 
 
         and Hitzler revealed the following:
 
         
 
              Q.  And did you specifically ask him on December 4th if 
 
              he had a work related injury?
 
         
 
              A.  Yes, I did.
 
         
 
              Q.  And what do you recall his response being?
 
         
 
              A.  His response being that no, I think I did it on my 
 
              brother's farm jumping off a tractor.
 
         
 
         (transcript page 109)
 
         
 
              Thomas Kelleher, supervisor of the second shift in the 
 
         cooler, was claimant's supervisor when claimant worked in the 
 
         cooler (ex. 22, pp. 3 & 10).  Kelleher said claimant worked for 
 
         him one or two times.  On one occasion he noticed claimant was 
 
         limping and when he was picking up the orders, he had a hard time 
 
         throwing milk cases four high and five high.  Kelleher testified:
 
         
 
              A.  I asked him if he hurt himself or what he had done.
 
         
 
              Q.  What did he say?  
 
         
 
              A.  He said he thought he hurt it at work, but he 
 
              wasn't sure.
 
         
 
         (exhibit 22, p. 11)
 
         
 
              Kelleher told claimant he could go home early and Kelleher 
 
         believed that claimant did go home early near the end of the 
 
         shift (ex. 22, p. 12).
 
         
 
              At the hearing, Kelleher testified, "I asked him if he hurt 
 
         himself on the job, if he had just done it.  He said no, not-- he 
 
         said I don't think so.  He says I might have but I don't know if 
 
         I did or not." (tr. p. 114).  Kelleher also testified, "I think 
 
         he told me he did it jumping off a tractor." (tr. p. 115).  
 

 
         
 
         Page  10
 
         
 
         
 
         
 
         
 
         However, claimant testified that he never did talk to Kelleher 
 
         after he stepped off the tractor and both parties to the action 
 
         agreed that Kelleher must have been mistaken about claimant 
 
         stating to Kelleher that he did it stepping off the tractor (tr. 
 
         p. 130).  
 
         
 
              In summary, there is some evidence from Kelleher that 
 
         claimant was limping one night at work while working for him in 
 
         the cooler and that he told claimant that he could go home early.  
 
         Kelleher thought he went home early near the end of the shift.  
 
         Claimant thought he had worked a full shift, but like much of his 
 
         testimony, he just wasn't sure about it.  Hitzler did confirm 
 
         with Kelleher that claimant was limping on one occasion while 
 
         working in the cooler and that Kelleher offered him the option of 
 
         going home early.  
 
         
 
              Dr. Greenawalt testified:
 
         
 
              Well, in my opinion I think the original incident did 
 
              occur at work, and that the incident you're describing 
 
              now on December 2nd re-aggravated this, and in fact, it 
 
              not only re-aggravated it, but made it worse.  When an 
 
              annulus of an intervertebral disk begins to degenerate 
 
              or develop cracks in it, this makes it vulnerable to 
 
              herniation.  With the symptoms that Darrell described I 
 
              believe that the incident triggered this herniation, 
 
              but not to the degree of irritation that apparently 
 
              this second incident exaggerated or aggravated.
 
         
 
              
 
         (exhibit 15, p. 33).
 
         
 
              Thus, Dr. Greenawalt supports the view that the surgery and 
 
         disability was caused by the injury that occurred on December 2, 
 
         1987, because it was worse than the lifting incident in November 
 
         1987.
 
         
 
              Dr. Greenawalt thought it was significant that claimant was 
 
         able to work after the lifting incident in November of 1987, but 
 
         was unable to work after the lesion was aggravated after the 
 
         incident of jumping off the tractor (ex. 15, p. 44).
 
         
 
              Claimant is not required to prove that the November 1987 
 
         lifting incident was the sole cause of his disability.  Langford 
 
         v. Keller Evcavating and Grading, Inc., 191 NE 2nd 667, 670 (Iowa 
 
         1967).  Claimant is required to prove that this incident is a 
 
         substantial cause of his surgery and disability and this he has 
 
         failed to do.  Blacksmith v. All-American, Inc., 290 N.W.2d 348 
 
         (Iowa 1980).
 
         
 
              The evidence taken as a whole, does not prove that the 
 
         lifting incident some time in November of 1987 was the cause of 
 
         claimant's time off work, surgery, or any permanent disability.  
 
         The evidence indicates that it is more likely that jumping off 
 
         the tractor on December 2, 1987, or walking on the ice on 
 
         December 27, 1987, that precipitated claimant's disability and 
 
         medical expenses.  
 
         
 
              In conclusion, claimant did not sustain the burden of proof 
 
         by a preponderance of the evidence that the minor temporary 
 

 
         
 
         Page  11
 
         
 
         
 
         
 
         
 
         aggravation of his preexisting back condition which occurred on 
 
         some unspecified date in November of 1987 caused his herniated 
 
         disc or aggravated it to the point where he required time off 
 
         work and surgery.  Claimant did not prove that his slight 
 
         temporary aggravation injury was the cause of his disability or 
 
         medical expenses.
 
         
 
                                conclusions of law
 
         
 
              Wherefore, based on the foregoing evidence and principles of 
 
         law, these conclusions of law are made:
 
         
 
              That claimant did sustain a temporary aggravation injury to 
 
         his low back sometime in November 1987 which arose out of and in 
 
         the course of employment with employer.  Iowa Code section 
 
         85.3(1); 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).
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that this temporary aggravation 
 
         injury was the cause of his surgery, time off work or alleged 
 
         permanent disability.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
         N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 
 
         N.W.2d 607 (1945).
 
         
 
                                      order
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That no amounts are owed by defendants to claimant.
 
         
 
              That each party is to pay their own respective costs of this 
 
         action, except that defendants are charged with the cost of the 
 
         attendance of the court reporter at the hearing and the copy of 
 
         the transcript provided to the industrial commissioner's office.
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to rule 343 IAC 3.1.
 
         
 
              Signed and filed this ____ day of March, 1991.
 
         
 
         
 
         
 
         
 
                                       ______________________________
 
                                       WALTER R. McMANUS, JR.
 
                                       DEPUTY INDUSTRIAL COMMISSIONER    
 
         
 
         Copies to:
 
         
 
         Mr. Jeffrey A. Trannel
 
         Attorney at Law
 
         325 CyCare Plaza
 
         Dubuque, Iowa  52001
 
         
 
         Mr. Greg A. Egbers
 
         Attorney at Law
 
         600 Union Arcade Bldg.
 
         Davenport, Iowa  52801-1550
 

 
         
 
         Page  12
 
         
 
         
 
         
 
         
 
         
 
              
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1106;5-1107;5-1108.50;5-1401
 
                      5-1402.20;5-1402.30;5-2206;5-2902
 
                      5-1402-40;5-1402-60;5-1802;5-1803
 
                      5-2207;5-2501;5-2700;5-2902
 
                      Filed March 12, 1991
 
                      WALTER R. MCMANUS
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            DARRELL J. SCHUELLER,    :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 868599
 
            SWISS VALLEY FARMS, :
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-1106;5-1107;5-1108.50;5-1401;5-1402.20;5-1402.30;5-2206;5-
 
            2902
 
            Claimant did prove that he sustained a temporary aggravation 
 
            of his preexisting back condition that arose out of and in 
 
            the course of employment with employer.
 
            
 
            5-1402.40;5-1402.60;5-1802;5-1803;5-2207;5-2501;5-2700;5-290
 
            2
 
            Claimant did not prove this aggravation injury was the cause 
 
            of his surgery, time off work or alleged permanent 
 
            disability.  It was more likely that two intervening 
 
            incidents (1) where he stepped off of a tractor while 
 
            working for his brother and     (2) walking on ice in a 
 
            strained manner at home were more likely the cause of his 
 
            surgery and disability because until after these two 
 
            incidents he lost no time from work and did not seek any 
 
            medical treatment.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1803
 
                                               Filed October 1, 1990
 
                                               WALTER R. McMANUS, JR.
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CHARLOTTE SMITH,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File Nos. 869128
 
                                          :                   910567
 
            LOUIS RICH COMPANY,           :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            5-1803
 
            Non-precedential determination of permanent partial 
 
            disability.
 
            Claimant was age 50, had a high school education and was 
 
            trainable.  She was versatile and had a stable employment 
 
            record.  Her permanent impairment was 20 percent to the body 
 
            as a whole.  She was restricted from lifting no more than 20 
 
            pounds, long hours, overtime work and prolonged periods of 
 
            standing.  She had (1) two lumbar surgeries, one of which 
 
            severed a nerve; and, (2) permanent weakness and pain in her 
 
            back and right leg.  Claimant was still working only limited 
 
            hours.  Claimant was willing to try to keep working in spite 
 
            of great difficulty.  Employer had tried very hard to 
 
            accommodate claimant and provide employment for her within 
 
            her restrictions.  The treating doctor and an evaluating 
 
            doctor found she was getting worse rather than better.  
 
            After two surgeries she still had a bulging annulus at the 
 
            same level as the two prior surgeries.  Claimant was awarded 
 
            40 percent industrial disability to the body as a whole.  It 
 
            was stated that the award was based on the situation at the 
 
            time of the hearing and not what might happen in the future 
 
            after the hearing.