Page   1
                     before the iowa industrial commissioner
            RICHARD SUCKOW,               :
                 Claimant,                :
            vs.                           :
                                          :         File No. 869643
            NEOWA FS, INC.,               :
                                          :      A R B I T R A T I O N
                 Employer,                :
                                          :         D E C I S I O N
            and                           :
                 Insurance Carrier,       :
                 Defendants.              :
                 This is a proceeding in arbitration brought by Richard 
            Suckow, claimant, against Neowa FS, Inc., employer, and 
            Employers Mutual Companies, insurance carrier, defendants, 
            for benefits as a result of an alleged injury which occurred 
            on June 20, 1986.  A hearing was held at Waterloo, Iowa on 
            June 25, 1990 and the case was fully submitted at the close 
            of the hearing.  Claimant was represented by Larry F. Woods.  
            Defendants were represented by Jeffrey M. Margolin.
                 The record consists of the testimony of Richard Suckow, 
            claimant, Lori Suckow, claimant's wife, and Lyle Bushkofsky, 
            claimant's exhibits 1-16 and defendants' exhibits A, B and 
            C.  The deputy ordered a transcript of the hearing.
                 Both attorneys submitted excellent briefs.
            The parties stipulated to the following matters:
            That an employer-employee relationship existed between 
            claimant and employer at the time of the alleged injury.
            That the type of permanent disability if the injury is found 
            to be cause of permanent disability is industrial disability 
            to the body as a whole.
            That the rate of compensation in the event of an award is 
            $208.10 per week.
            That the provider of medical services and supplies would 
            testify that the fees charged were reasonable and the 
            supplies and services were for necessary and reasonable 
            treatment of the alleged work injury.
            That defendants take no claim for either non-occupational 
            group health plan benefits or workers' compensation benefits 
            paid to claimant prior to hearing.
            That there are no bifurcated claims.
            Page   2
            The parties submitted the following issues for determination 
            at the time of the hearing:
            Whether claimant sustained an injury on June 20, 1986, which 
            arose out of and in the course of employment with employer.
            Whether the alleged injury is the cause of either temporary 
            or permanent disability.
            Whether claimant is entitled to either temporary or perma
            nent disability benefits.
            Whether claimant is entitled to medical benefits.
                                 findings of fact
                 It is found that claimant sustained an injury on June 
            20, 1986, which arose out of and in the course of his 
            employment when a vehicle that he was driving for employer 
            rolled over in the ditch and he sustained lacerations and 
            abrasions to his body.
                 It is found that claimant did not sustain an injury 
            from this accident to his low back.
                 The best evidence that claimant might have sustained a 
            low back injury is found in the two photographs of the tank 
            truck and the damage to it which claimant was driving at the 
            time of the injury that resulted in lacerations and 
            abrasions.  The cab of the truck is severely damaged from 
            this roll over vehicle accident (Exhibits 14 & 15).
                 The other evidence that claimant might have sustained a 
            low back injury is his testimony and the testimony of his 
            wife.  Claimant's wife testified that he complained of low 
            back pain and pain in his buttocks shortly after the 
            accident.  She rubbed his back daily after the accident and 
            sometimes when she did so he would jump (Transcript 
                 This evidence is outweighed by the other evidence in 
            the case that does not support a low back injury which was 
            caused by this vehicle accident.
                 Claimant himself testified that immediately after the 
            accident that he did not have any back pain.  He testified 
            that his back and legs were okay.  He received no medical 
            treatment for his back or legs (T 27 & 28).  Before he left 
            the emergency room he began to get stiff and sore all over 
            (T 29).  At home he noticed that his shoulder, neck and low 
            back were causing pain.  He said he reported this to the 
            doctor a week later and the doctor told him that he could 
            expect this kind of pain for approximately two weeks (T 30, 
                 Claimant was being treated by Larry H. Boeke, M.D., at 
            the Gunderson Clinic.  Dr. Boeke's office notes do not 
            reflect that claimant complained of neck, shoulder or low 
            back pain at this time or at any other time (Ex l, page 1; 
            Ex A, page 5).  Dr. Boeke shows entries for June 20, 1986, 
            June 21, 1986, and June 28, 1986.  Claimant did not complain 
            of any neck, shoulder or low back pain and was not treated 
            for any neck, shoulder or low back pain.
            Page   3
                 Claimant testified that he tried to return to work on 
            one or two occasions but stated that he was unable to do so 
            due to pain. (T 31-34)  Dr. Boeke's records do not reflect 
            that claimant was ever taken off work on account of this 
            accident or this injury (Ex l, p 1; Ex A, p 5).  Claimant 
            contended that he was unable to work from June 20, 1986 
            until the latter part of July or the first part of August 
            1986.  This contention is not supported by any medical 
            evidence of any kind.  According to the medical records, 
            claimant was last treated by Dr. Boeke on June 28, 1986, and 
            received no further treatment from him after that date 
            (T 78).
                 Claimant then went to work for Pepsi Cola in Lincoln, 
            Nebraska as a janitor.  He testified that occasionally he 
            lifted pop cases and when he did so it irritated his low 
            back (T 45, 47, 71, 72, 112 & 114).  Claimant worked for 
            Pepsi Cola from approximately September of 1986 to December 
            of 1986 at which time he moved to Atlanta, Georgia and 
            became employed by his father doing heavy construction work 
            from December of 1986 to August of 1987 (T 47, 53, 73, 114, 
            115 & 119).
                 Claimant admitted that in the heavy construction job he 
            frequently lifted weights between 50 and 100 pounds and that 
            when he did so it exacerbated his low back condition (T 35, 
            47, 53, 73, 114, 115 & 119).
                 Claimant next saw Walter C. Edwards, M.D., a board 
            certified orthopedic surgeon in Atlanta, Georgia on April 
            21, 1987, giving this accident as a history for his low back 
            pain (Ex 3, p 2).  Dr. Edwards testified that claimant did 
            not tell him about his employment with Pepsi Cola or the 
            subsequent heavy construction work in Georgia (Ex 16, pages 
            32 & 33).  X-rays at the time of the initial examination 
            disclosed an L5 spondylolysis without spondylolisthesis.  
            Dr. Edwards diagnosed low back pain attributed to L5 
            spondylolysis with no spondylolisthesis (Ex 3, p 2).  Dr. 
            Edwards testified that the spondylolysis was a structural 
            lesion which preexisted the vehicle accident (Ex 16, p 17).  
            Dr. Edwards also performed a static strength test on May 22, 
            1987 and ordered an MRI on August 14, 1987 (Ex 3, p 1; Ex 
            16, pp 7 & 11).  The MRI agreed with Dr. Edwards' 
            interpretation of degeneration at L5 but further disclosed 
            focal herniation at the L-4 disc level.
                 He explained that focal herniation is a tear in the 
            ligaments of the annulus fibrosus accompanied by a 
            protrusion of the lumbar disc through that tear into the 
            spinal canal (Ex 16, pp 12 & 13).  Dr. Edwards testified 
            that the MRI results were consistent with the motor vehicle 
            accident.  He felt that the spondylolysis without 
            spondylolisthesis at the L5 level was a preexisting 
            condition but that the acute disc herniation at the L4-5 
            level was the result of the motor vehicle accident (Ex 16, 
            pp 13 & 14).  He restricted claimant to medium work which is 
            no lifting over 50 pounds and suggested that he give up 
            heavy work (Ex 16, p 14).  He said the focal herniation 
            constituted a 10 percent permanent physical impairment 
            Page   4
            rating (Ex 16, p 15).  He said either condition could have 
            been causing his low back pain (Ex 16, p 17).
                 Dr. Edwards stated in a letter dated September 2, 1987:
                 It is my opinion that the type of injury that Mr. 
                 Suckow sustained was sufficient to cause this type 
                 of disc herniation and that his complaints of pain 
                 date from the date of the accident that you 
                 describe in your letter of August 25, 1987.
            (Ex 6, p 1)
                 Dr. Edwards then looked at the emergency treatment 
            after the vehicle accident and admitted that there was no 
            mention of back or leg pain (Ex 16, pp 31 & 32).  It then 
            came out that he was not aware of the fact that claimant 
            worked for Pepsi Cola for approximately two months in a 
            warehouse sometimes loading and unloading trucks (Ex 16, p 
            32).  Dr. Edwards then testified that he was unaware of the 
            fact that claimant was doing heavy construction work at the 
            time that he was being treated by him.  Dr. Edwards 
            testified:  "No, I had assumed that he was out of work at 
            that time." (Ex 16, p 32 & 33)  Dr. Edwards acknowledged 
            that claimant first sought treatment for his low back from 
            him approximately 10 months after the motor vehicle accident 
            (Ex 16, p 33).  Claimant's neurological exam was normal (Ex 
            16, p 34).  The doctor agreed that the spondylolysis 
            preexisted the injury of June 20, 1986 (Ex 16, p 34).  He 
            explained that a spondylolysis is:  "It's an interruption of 
            the spine in a segment known as the pars interarticularis 
            which connects one segment of the spine to adjacent 
            segments." ( Ex 16, p 34)  He added:  "It creates some in
            stability, it's not solid, there's more motion, and we 
            believe that it renders the disc somewhat more vulnerable to 
            injury."  (Ex 16, p 35)
                 Dr. Edwards granted that loading and unloading trucks 
            for Pepsi Cola could aggravate claimant's spondylolysis and 
            cause his symptoms to become more symptomatic (Ex 16, p 35).  
            He also conceded the construction work "could if he were 
            into the heavy or very heavy work level categories."  The 
            doctor agreed that construction work could aggravate the 
            condition of spondylolysis and cause pain in the low back 
            area (Ex 16, pp 36 & 37).  The doctor agreed that pouring 
            concrete could aggravate his low back pain (Ex 16, p 37).  
            The doctor further agreed that an individual with 
            spondylolysis could develop low back pain without a 
            traumatic event (Ex 16, p 37).  Dr. Edwards also admitted 
            that ordinary living experiences such as mowing the lawn and 
            picking up a bag of groceries could also contribute to 
            symptoms of low back pain (Ex 16, pp 37 & 38).  Dr. Edwards 
            explained that even though the MRI report did not talk in 
            terms of "nerve root compression" and "nerve root 
            impingement" he felt that it was implied by the MRI report 
            because the "fat is obliterated in the L 4-5 foramen, and 
            that's the tissue that cushions the nerve; and if that's 
            obliterated, then there's an implication that there's some 
            nerve impingement."  (Ex 16, p 38)
            Page   5
                 Dr. Edwards further agreed that at the time of his 
            static strength test that claimant, who is approximately 
            five foot six inches tall and weighed 192 pounds was 16.1 
            pounds overweight and was instructed to lose this weight in 
            order to alleviate his back pain (Ex 3, p 1; Ex 16, p 39).  
            The doctor agreed that a person who was overweight can 
            contribute to or cause an aggravation of low back pain 
            symptoms (Ex 16, p 40).  Dr. Edwards agreed that at the time 
            of a subsequent independent medical examination claimant had 
            not lost weight but rather had gained weight because on June 
            20, 1989, he weighed 195 pounds (Ex 16, p 40; Ex A, p 2).  
            The doctor acknowledged at the time of the deposition on 
            June 11, 1990, that he had not seen claimant since August 
            14, 1987, and that he was not aware of the fact that 
            claimant had been working full time since then (Ex 16, p 
                 Finally, the doctor admitted that he relied on the 
            history which claimant gave and that the information that he 
            received was either inaccurate or incomplete so that it 
            would cause him to rethink his opinion regarding causation 
            (Ex 16, pp 42 & 43).
                 Dr. Edwards reiterated that the spondylolysis at L5 was 
            a structural lesion which preexisted the injury of June 21, 
            1986 (Ex 16, p 44).  He also admitted that the back symptoms 
            which claimant manifested could be "attributable to either 
            this structural lesion which preexisted the June '86 car 
            accident or the herniated disc..." (Ex 16, pp 44 & 45).  The 
            doctor said it could be attributed to the structural lesion 
            as opposed to the herniated disc or the other way around or 
            a little bit of both and the doctor agreed stating:  "Yes.  
            It's very difficult to decide sometimes." (Ex 16, p 45)  
            Then this colloquy transpired between defendants' counsel 
            and Dr. Edwards:
                    Q.  Okay.  So what it comes down to is 
                 basically we aren't entirely sure if his symptoms 
                 that he relayed to you in 1987 were attributable 
                 solely to the car accident in 1986 or were caused 
                 by structural lesion with spondylolysis, is that 
                    A.  Yes.  I had assumed that he had no symptoms 
                 prior to the car accident.
            (Ex 16, p 45)
                 Both claimant and his wife admitted that he did have a 
            muscle strain or spasm in his low back while working for his 
            father in Georgia in 1984.  Claimant described it as a 
            cramp, that would tighten up or knot up at his belt line.  
            Claimant admitted that he performed farm work or heavy 
            construction for his father for several years (T 34-37, 
            91-93, 99 & 100).  Claimant's wife testified that 
            chiropractic did not help in 1984 but he was treated at the 
            emergency room and received muscle relaxants and ice which 
            enabled him to sleep it off and it was gone (T 104-105).  
            Still again Dr. Edwards admitted that the fact (1) that 
            Page   6
            claimant was working construction for a period of five 
            months before he saw him and (2) that claimant was doing 
            work at the warehouse for Pepsi Cola prior to that was 
            relevant employment history which was important to consider 
            but that he did not have this information at his disposal 
            when he formulated his opinions back in 1987 (Ex 16, p 46).
                 Dr. Edwards further testified focal herniated disc was 
            consistent with repetitious heavy lifting in construction 
            (Ex 16, p 47).
                 The doctor also agreed that if the back pain initially 
            occurred shortly after the vehicle accident then "that's 
            usually taken as the point at which the problem began."  (Ex 
            16, p 47)  However, in this case, claimant's testimony and 
            his wife's testimony concerning low back pain immediately 
            after the accident is not supported by the medical evidence 
            of record.  The emergency room report and the report of the 
            treating physician, Dr. Becke, indicate no back complaints 
            or treatment for back pain (Ex 1, p 1; Ex A, p 5).  Dr. 
            Boeke's notes do not confirm that claimant complained of 
            neck, shoulder and low back pain at any time after the 
            accident (Ex 1, p 1; Ex A, p 5).
                 The record indicates that claimant first sought medical 
            treatment for his low back on April 21, 1987, 10 months 
            after the vehicle accident.  Claimant was only treated for a 
            period of four months from April 21, 1987, to August 14, 
            1987, by Dr. Edwards for his low back pain and this occurred 
            while he was doing heavy construction work for his father in 
            Georgia lifting weights in excess of 50 pounds and up to 100 
            pounds, which work he did not report to Dr. Edwards at that 
            time (Ex 3, pp 1-8).  Furthermore, claimant has not sought 
            any treatment for his low back pain since August of 1987.  
            In addition, claimant has been employed full time for 
            another employer in Iowa from August of 1987 up to and 
            through the date of the hearing.
                 Moreover, claimant testified that he is a hobby stock 
            car driver and that at the time of the hearing he was then 
            currently racing hobby stock cars and has received driving 
            awards (T 84-87, 101 & 102).  Claimant also admitted that in 
            the past, for a period of approximately five years from 1979 
            to 1984, he engaged in demolition derbies at automobile race 
            tracks (T 60, 61, 87-91 & 98).  After he races his low back 
            hurts (T 94, 97 & 98)  There was no evidence that Dr. 
            Edwards had any history of his hobby stock car racing or his 
            demolition derby career either.
                 Lyle Bushkofsky, claimant's supervisor at the time of 
            the accident, testified that claimant had scrapes and 
            bruises on his upper back but he was not aware of any low 
            back injury (T 122).
                 Claimant was examined by Lawrence C. Strathman, M.D., 
            an orthopedic surgeon, for an independent medical 
            examination by defendants on June 20, 1989.  Claimant 
            admitted to Dr. Strathman that the condition which began 
            with the vehicle accident, was aggravated by lifting cases 
            of pop at Pepsi Cola and performing construction work in 
            Page   7
            Georgia.  Dr. Strathman found no neurologic deficit.  He 
            said the MRI showed some changes but no evidence of 
            herniation and radicular component to his complaints at the 
            time of his examination.  He felt that claimant had chronic 
            low back pain primarily associated with the spondylolysis.  
            He recommended exercise, weight loss and not lifting more 
            than 45 to 50 pounds.  Dr. Strathman concluded that he could 
            assess a two to three percent body as a whole impairment on 
            the basis of aggravation of his spondylolysis in view of his 
            history.  At the same time Dr. Strathman said it could be 
            argued that his symptoms may well have occurred and existed 
            just on the basis of the spondylolysis alone.  Furthermore, 
            since claimant had no spondylolithesis and no neurologic 
            deficit, it could be maintained that there is no residual 
            impairment (Ex A, pp 2 & 3).
                 In conclusion, Dr. Edwards' opinion that the vehicle 
            accident might have aggravated the spondylolysis at L5, and 
            did cause the focal herniation at L4, was clearly based on 
            the history which claimant gave to Dr. Edwards.  This 
            history is deficient in a number of respects all of which 
            Dr. Edwards said would cause him to rethink his opinion.  In 
            particular Dr. Edwards was not aware of the fact that 
            claimant lifted cases of pop for Pepsi Cola and was 
            performing heavy construction labor lifting up to 100 pounds 
            at the time that Dr. Edwards treated claimant.  In addition, 
            it does not appear that Dr. Edwards was aware of the muscle 
            strain that occurred in 1984, nor the fact that claimant 
            participated in demolition derbies between 1979 and 1984, 
            and had driven hobby stock cars competitively and other 
            racing vehicles for approximately 10 or 11 years since 1979.  
            Dr. Edwards also admitted that claimant's overweight 
            condition could contribute to his back pain.  The most that 
            can be said for Dr. Edwards' testimony is that he said that 
            the disability was "consistent" with the vehicle accident of 
            June 20, 1986.  This is not sufficient to establish that the 
            work of driving a tank truck which rolled in the ditch  
            caused claimant's subsequent low back complaints.  The 
            possibility of causal connection must be bolstered by strong 
            non-medical evidence.  There is no such strong non-medical 
            evidence in this case.  The evidence taken as a whole shows 
            that claimant's back pain could be due to a number of causes 
            other than the motor vehicle accident on June 20, 1986.  
            There is no medical evidence that the vehicle accident of 
            June 20, 1986, probably caused a low back injury to 
                 It is determined that claimant did not sustain an 
            injury to his low back which arose out of and in the course 
            of his employment on June 20, 1986.
                 In view of this finding of fact, all of the other 
            issues in this case, causal connection of temporary 
            disability and permanent disability, entitlement to 
            temporary disability and permanent disability, and 
            entitlement to medical benefits all become moot.
                                conclusions of law
            Page   8
                 WHEREFORE, based upon the evidence presented and the 
            foregoing and following principles of law, these conclusions 
            of law are made:
                 Claimant did sustain an injury on June 20, 1986, which 
            caused lacerations and abrasions to his body which arose out 
            of and in the course of his employment with employer.  The 
            parties agreed that these medical bills had been paid prior 
            to hearing.  Claimant introduced no evidence of either 
            temporary or permanent disability as a result of these 
            abrasions or lacerations.  No further findings are required 
            with respect to the injury which resulted in lacerations and 
                 It is determined that claimant failed to sustain the 
            burden of proof by a preponderance of the evidence that the 
            vehicle accident on June 20, 1986, caused an injury to his 
            low back.  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); 
            Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 
            63 (1955); Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 
            298 (Iowa 1979); Bradshaw v. Iowa Methodist Hospital, 251 
            Iowa 375, 101 N.W.2d 167 (1960); Burt v. John Deere Waterloo 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).
                 It is therefore determined that all other issues in the 
            case are moot.
                 No amounts are owed by defendants to claimant as a 
            result of the abrasions and lacerations injury and no 
            amounts are owed to claimant for the alleged low back injury 
            because claimant did not prove that he sustained a low back 
            injury arising out of and in the course of his employment 
            with employer.
                 That the costs of this action, including the cost of 
            the transcript, are charged to claimant pursuant to Division 
            of Industrial Services Rule 343-4.33.
                 That defendants file claim activity reports as 
            requested by this agency pursuant to Division of Industrial 
            Services Rule 343-3.1.
                 Signed and filed this ____ day of July, 1990.
            WALTER R. McMANUS, JR.
                                          DEPUTY INDUSTRIAL COMMISSIONER
            Page   9
            Copies To:
            Mr. Jeff M. Margolin
            Mr. Larry F. Woods
            Attorneys at Law
            24 N Frederick Ave
            Oelwein  IA  50662
            Mr. E. J. Giovannetti
            Attorney at Law
            Terrace Center, STE 111
            2700 Grand
            Des Moines  IA  50312
                                            5-1107; 5-1108.50; 5-1401
                                            5-1402.20; 5-1402.30; 5-2907
                                            Filed July 20, 1990
                                            WALTER R. McMANUS
                     before the iowa industrial commissioner
         RICHARD SUCKOW,               :
              Claimant,                :
         vs.                           :
                                       :         File No. 869643
         NEOWA FS, INC.,               :
                                       :      A R B I T R A T I O N
              Employer,                :
                                       :         D E C I S I O N
         and                           :
              Insurance Carrier,       :
              Defendants.              :
         5-1107; 5-1108.50; 5-1401; 5-1402.20; 5-1402.30
         Claimant did not prove injury arising out of and in the course of 
         employment to his low back.  He was involved in a very serious 
         tank truck rollover accident and received several lacerations and 
         abrasions, but there was no medical evidence of low back injury 
         or treatment for it at that time.  After the injury claimant 
         worked for Pepsi-Cola loading and unloading pop cases some of the 
         time; performed heavy construction for his father lifting up to 
         100 pounds; was overweight for his height; had a prior back 
         strain two years earlier; and had participated in hobby stock car 
         racing and demolition derbies for several years prior to the 
         alleged injury.  Claimant did not seek treatment for his low back 
         until 10 months after the accident.  Claimant did prove injury 
         which caused lacerations and abrasions but these bills had been 
         paid prior to hearing and were not in issue.  There was no 
         medical evidence claimant was taken off work or otherwise was not 
         able to work due to the lacerations and abrasions (or for the 
         alleged low back injury).  Therefore, no award was made for the 
         lacerations or abrasions.  Claimant did not prove injury to his 
         low back based on the testimony of he and his wife alone.  Their 
         testimony was not supported by any other medical or non-medical 
         evidence in the record.  Claimant's doctor said the low back 
         injury was "consistent" with the vehicle accident, but defendants 
         showed that the doctor's testimony was based on an incomplete 
         Claimant ordered to pay costs including the cost of the 
            CAROLYN BOWERS,       
                                               File No. 869665
                                                A P P E A L
                                               D E C I S I O N
                 Insurance Carrier,    
            The record, including the transcript of the hearing before 
            the deputy and all exhibits admitted into the record, has 
            been reviewed de novo on appeal.  The decision of the deputy 
            filed December 30, 1992 is affirmed and is adopted as the 
            final agency action in this case with the following 
            additional analysis:
            Dr. Hayne and Dr. Boulden have stated, after viewing the 
            videotape of claimant, that claimant could return to work as 
            a teacher within certain restrictions.  The restrictions of 
            not lifting over 15 pounds and not standing or sitting for 
            extended periods of time are in many ways incompatible with 
            claimant's described duties as a teacher.  The opinions of 
            Dr. Bower and Dr. Hayne that claimant could return to 
            teaching are limited to their knowledge of claimant's duties 
            as a teacher.  In addition, Dr. Hayne explained that 
            although claimant might be said to be able to return to 
            teaching duties, the associated pain with doing so might 
            interfere with her performance of those duties.  (Exhibit 
            19, pages 34-35)
            It is also noted that these opinions, although accepted as 
            part of the record, do not consist of detailed letters or 
            statements on claimant's ability to return to teaching, nor 
            were said opinions given in a deposition.  Rather, the 
            opinions consist of checkmarks on a form which offered a 
            "can" or "cannot" choice.  Although such evidence is 
            considered, it necessarily carries less weight than a more 
            detailed, reasoned medical opinion with supporting 
            documentation and analysis.
            Weight is given to the fact that although defendants state 
            that claimant could return to teaching at the school, there 
            Page   2
            is little evidence of a concrete offer of re-employment to 
            claimant within her restrictions.  There is evidence of 
            another teacher being hired instead of claimant.
            The videotape evidence does contradict claimant's 
            description of her impairment, and tends to show an 
            exaggeration by claimant.  Nevertheless, claimant does have 
            some impairment from her injury, and this is verified by 
            medical evidence.
            Claimant's motivation to seek other employment is less than 
            exemplary.  However, claimant's description of her pain and 
            limitations appear to be partly responsible for this.  There 
            are indications in the record from both physicians and 
            vocational workers that claimant did show good motivation to 
            return to work.  (Ex. 1, p. 10; Ex. 20, p. 29; Transcript, 
            p. 107)
            Taken as a whole, the evidence shows that claimant, as a 
            result of her work injury, is unable to return to her former 
            employment or to engage in other employment for which she is 
            trained or qualified.
            Based on these and all other appropriate factors for 
            determining industrial disability, claimant is determined to 
            be permanently and totally disabled.
            As ordered in the arbitration decision, defendants are 
            entitled to a credit for permanent partial disability 
            benefits previously paid.  In this case, defendants have 
            paid 86.143 weeks of permanent partial disability benefits 
            and shall receive a credit therefor.
            Defendants shall pay the costs of the appeal, including the 
            preparation of the hearing transcript.
            Signed and filed this ____ day of November, 1993.
                                              BYRON K. ORTON
                                          INDUSTRIAL COMMISSIONER
            Copies To:
            Mr. Donald Beattie
            Attorney at Law
            204 8th St., SE
            Altoona, Iowa 50009
            Mr. D. Brian Scieszinski
            Attorney at Law
            801 Grand Ave., Ste 3700
            Des Moines, Iowa 50309-2727
                                           Filed November 17, 1993
                                           Byron K. Orton
            CAROLYN BOWERS,       
                                               File No. 869665
                                                A P P E A L
                                D E C I S I O N
                 Insurance Carrier,    
            Found 57-year-old claimant permanently and totally disabled.  
            She was a school teacher.
            Page   1
                     before the iowa industrial commissioner
            CAROLYN BOWERS,               :
                 Claimant,                :
            vs.                           :
                                          :      File No. 869665
                                          :     A R B I T R A T I O N
                 Employer,                :
                                          :       D E C I S I O N
            and                           :
                 Insurance Carrier,       :
                 Defendants.              :
                              statement of the case
                 This case came on for hearing on November 23, 1992, in 
            Des Moines, Iowa.  This is a proceeding in arbitration 
            wherein claimant seeks compensation for permanent partial 
            disability benefits as a result of an injury occurring on 
            October 28, 1987.  The record in this proceeding consists of 
            the testimony of the claimant; claimant's husband, Billy 
            Bowers; Laura Cozad; Richard Rattray; Ben Halupnik; and Jo 
            Nye; and joint exhibits 1 through 28.
                 The issues for resolution are:
                 1.  The extent of claimant's permanent disability and 
            entitlement to disability benefits;
                 2.  Whether there is any causal connection as to a 
            healing period beginning November 15, 1988 through January 
            16, 1990; and,
                 3.  Iowa Code section 86.13 remains asserted.
                                 FINDINGS OF FACT
                 The undersigned deputy, having heard the testimony and 
            considered all the evidence, finds that:
                 Claimant testified at the hearing and by deposition on 
            September 12, 1991 (Jt. Ex. 25).  Claimant is a 57-year-old 
            high school graduate who graduated from high school in 1959 
            and then was a homemaker until 1970, at which time she 
            returned to college.  She received her college degree in 
            1973.  She has twenty hours toward her Masters.  Claimant's 
            degree is in education and she was basically a schoolteacher 
            mainly teaching children with mental disabilities.  She 
            related her teaching experience with the schools and grades 
            Page   2
            she taught.  Claimant indicated that before 1980, she was in 
            excellent health and had no back problems.  She related that 
            in early 1980 she had a sudden onset of pain that was not 
            connected with her work and surgery was performed by Robert 
            Hayne, M.D., in 1981 for a herniated disc in the lower 
            lumbar area.  Claimant then returned to work in the fall of 
            1982.  She indicated there were no written restrictions 
            after the 1981 surgery except that she was cautioned orally 
            regarding lifting over 20 pounds.  She indicated she was 
            having no problems in the fall of 1982 to October 28, 1988, 
            and was experiencing no back problems.  She got along very 
            well and was teaching.
                 Claimant indicated that on October 28, 1987, she was 
            injured while leaving a class.  She indicated she slipped 
            and fell on an oil based substance and did the splits, 
            referred to as the spread eagle, and felt pain and 
            discomfort.  She thought she was having spasms but continued 
            to work for a couple of weeks up until the time she was 
            having teacher-parent conferences on November 14, 1988.  She 
            started to have these conferences when the pain was getting 
            excruciating and she was taking a lot of medication and was 
            unable to handle the pain.  She was then off work for a 
            time, which the parties stipulated to, from November 16, 
            1987 through November 22, 1987.
                 Claimant related the medical treatment she was 
            receiving, the doctors she was going to and the nature of 
            her therapy.  She indicated that Dr. Hayne eventually 
            performed surgery for a herniated disc on February 20, 1989.  
            She related her post-surgery medical treatment, therapy and 
            the doctors she was referred to and was seen by.  She also 
            went to Mayo Clinic.
                 Claimant testified she submitted her resignation in 
            July of 1990, after she was told she did not meet the 
            physical demands of an elementary schoolteacher.  She then 
            was referred to joint exhibit 1, page 1 through 4, which is 
            a report dated July 16, 1990, by Ann H. Schutt, M.D., in 
            which she indicated that claimant did not meet the physical 
            demands of an elementary schoolteacher which is at the light 
            level according to the Dictionary of Occupational Titles.  
            That report also indicated it was recommended that claimant 
            continue her disability retirement from teaching and 
            consider vocational rehabilitation training for a sedentary 
            job and/or social security disability.  She was also 
            referred to page 20 of exhibit 1, which is a January 18, 
            1990 report from Mayo Clinic by John L. Merritt, M.D., in 
            which at that time he had indicated claimant had reached 
            maximal medical improvement for any definitive procedures 
            likely to change claimant's spinal disorders and associated 
            right foot disorder.  At that time, he opined a permanent 
            partial impairment of 11 percent of the body as a whole 
            relative to her spinal disorder and 2 percent of her body 
            relative to her consequential foot disorder, thereby 
            totaling 13 percent to the body as a whole.
                 It is apparent it is this date the claimant is relying 
            on as to the end of claimant's healing period as claimant 
            contends it began on November 16, 1987 through January 16, 
            Page   3
            1990, rather than ending through November 22, 1987.  This 
            same letter causally connected claimant's present symptoms 
            to her October 27, 1987 work-related injury.  It is obvious 
            this is the October 1987 injury they are referring to.
                 Claimant then indicated that because of this July 
            report, the school district did not want to hold claimant's 
            position open because of the evaluation indicating she 
            couldn't be an elementary schoolteacher.  The contract with 
            the school therefore was severed and claimant was no longer 
            considered an employee-teacher.  Once the contract was 
            terminated, she would then have to reapply if she wanted to 
            be an employed schoolteacher again with the school district 
            and an existing employee would have a priority for any jobs.
                 Claimant indicated that the defendant employer never 
            discussed any position that might be available other than a 
            schoolteacher position.  Claimant did indicate that in a 
            mediation hearing an inference was made that the defendant 
            employer was developing a teaching position, it appears, in 
            1991.  Claimant insisted she was never informed of this 
            position and the insurance carrier never discussed it with 
            her except at the mediation.  She said the school district 
            has never discussed this position with her.
                 Claimant related she has been through the Iowa 
            Department of Vocational Rehabilitation and did what Mayo 
            suggested.  She was in vocational rehabilitation for two 
            weeks and they closed the file because claimant's disability 
            was too severe for employment.  She indicated they suggested 
            she file for social security disability.  Claimant said she 
            did apply and received social security beginning November 
            19, 1990.  She was also awarded disability benefits from an 
            insurance company insured through her employer and had 
            received about a year's workers' compensation benefits.  She 
            related that these benefits today amount to about 25 percent 
            of what she was earning teaching school.
                 Claimant contends her current physical condition is 
            worse and she has internal pain.  She described the nature 
            and areas where she is having pain.  She indicated she 
            cannot sleep for more than two to four hours at night and 
            has to sleep in a different room than her husband because of 
            her restless sleeping.  She testified as to the medication 
            she was taking, and the fact that she is always fatigued and 
            hurting.  She is unable to stay in certain positions very 
            long.  She related she doesn't lift consistently anymore 
            than approximately ten pounds and does light housework.
                 She went over the various things she cannot do now that 
            which would have to do if she was a schoolteacher.
                 Claimant related her disappointment and dissatisfaction 
            with the video tape which was taped while she was at her 
            house.  She related the neighbors' and her concern at the 
            suspicious vehicle being in the neighborhood.  She called it 
                 Claimant agreed she had a real estate license in 1989 
            and was able to go out and sell real estate.  She 
            Page   4
            acknowledged that she updated it in May of 1991 by taking 
            six courses which was enough to renew her license.
                 Claimant indicated she has trouble negotiating stairs 
            and inclines are a problem.  The claimant acknowledged that 
            no one asked her to resign or leave her job.
                 Laura Cozad, a vocational counselor for the Iowa 
            Department of Vocational Rehabilitation, testified that she 
            has worked for the department ten years and her title is 
            vocational counselor.  She indicated that her duties are 
            accepting applications from people who have disabilities and 
            have a hard time getting a job.  She determines their 
            potential for new employment and helps them pursue a job.
                 Ms. Cozad said that she is trained to read medical 
            reports and files including the Mayo Clinic file.  She had 
            claimant go through an evaluation at the center.  She said 
            claimant came in on a part-time basis not to determine her 
            skills but her physical tolerance to see if she is 
            employable.  She said she saw a lot of pain in the claimant.  
            She indicated that claimant wanted to increase her time at 
            the center but they discouraged it because claimant could 
            not tolerate it.  She said she didn't want claimant to hurt 
            herself.  Ms. Cozad said claimant's pain and tolerance 
            problem interfered with her ability to concentrate and apply 
            what she was doing and to remember.  She said she decided 
            claimant could not function as a teacher.  Claimant was in 
            the program on August 22, 1990, and was discharged on 
            September 17, 1990.  This three to four weeks is a normal 
            period of time.
                 Ms. Cozad opined that it wasn't feasible for claimant 
            to seek competitive employment because of the pain and 
            physical tolerance to apply the skills she had.  Ms. Cozad 
            indicated that her condition prevented her from putting 
            forth too much effort and she stated she thought claimant 
            put forth her very best effort and was very motivated.  She 
            thought claimant wanted to do more than what was allowed and 
            she held her back.  She emphasized again that she did not 
            want claimant to hurt herself.  She said she then 
            recommended claimant seek social security.  She related it 
            was hard for claimant to accept this.
                 At this time, the undersigned noticed that claimant 
            spontaneously became emotional while sitting at the counsel 
            table with her attorney and got up and left the hearing 
                 Joint exhibit 8, pages 144 through 168, is the 
            vocational rehabilitation information and reports.  Page 168 
            of this exhibit sets out the reasons for the closing of 
            claimant's file as she was ineligible due to the fact that 
            claimant's disability was so severe for the claimant to 
            benefit from services in terms of employment.  This 
            particular report was dated October 2, 1990.  In a report 
            dated September 20, 1990, claimant was put in the highest 
            category of the severity of the handicapped (Jt. Ex. 8, p. 
            145).  This report indicates that claimant was interested in 
            obtaining part-time employment if they could determine what 
            Page   5
            claimant could tolerate physically.  The report also 
            indicates that claimant at this time is considered to be 
            severely disabled due to her being severely limited in the 
            area of work tolerance.  This September 20, 1990 report also 
            summarizes by indicating in part that the file is being 
            closed for the reason that claimant's handicap is too severe 
            (Jt. Ex. 8, pp. 145-147).
                 Ms. Cozad acknowledged that she saw claimant only one 
            time and that was the first meeting of the initial intake.  
            She indicated she does not make her own medical opinions but 
            relies on the doctors' opinions.  She further stated that 
            she had only Mayo Clinic records at the initial intake.
                 Ms. Cozad indicated she thought claimant put forth 
            maximum effort.
                 Richard Rattray, a vocational rehabilitation counselor 
            with the Iowa Vocational Rehabilitation agency for the last 
            27 years and who has been in the position of supervisor for 
            the last nine years, explained the procedure he uses, the 
            intake process, and how decisions are made.  He indicated at 
            the intake they start the evaluation and decide what 
            claimant can do and whether claimant can be helped or should 
            claimant be sent on for social security.
                 He indicated claimant was in a lot of pain and couldn't 
            do things full time.  He said she pushed herself hard and 
            tried.  He related that claimant couldn't remember his name 
            and address of the building.  He indicated claimant's pain 
            affected her performance and concentration.  He said her 
            concentration was not there academically.  He recommended 
            that she apply for social security and not work.
                 Billy D. Bowers, claimant's husband, testified.  He 
            described his wife as a workaholic and they struggled in 
            order for her to get a degree.  He related that before 
            November 1987, claimant's health was good.  He said 
            claimant's condition is getting worse.  It has curtailed 
            their vacation and when they drive in the car, they have to 
            stop a lot.  He said claimant's pain has interfered with her 
            thought process and he has had to tolerate her.  He was 
            asked if he saw the surveillance tape and saw claimant 
            lifting her grandchild.  Mr. Bowers indicated the grandchild 
            was small.  Mr. Bowers angrily related his displeasure at 
            defendants taking the video and getting information on him.  
            He contended defendants' actions regarding him and his 
            records were illegal.
                 Ben J. Halupnik has been the superintendent of school 
            at Carlisle since July 8, 1991.  Before that he was vice 
            president of Indian Community College.  He testified in 
            person and through his deposition of November 13, 1992 (Jt. 
            Ex. 22).  He indicated he was not superintendent when 
            claimant was injured.  He said he first became aware of 
            claimant's situation in the late winter of 1991 or early 
            1992 per a visit from Ms. Nye.  He related the number of 
            teachers presently in the system and disagreed with the 
            claimant in that he indicates a teacher's aide does not have 
            the same duties as a teacher presently in the system and the 
            Page   6
            difference depends on certain circumstances.  He related the 
            possible difference in duties and requirements.  Mr. 
            Halupnik indicated that from time to time there is need for 
            a teacher and they have hired approximately eight in the 
            last two years.  He also indicated that there is a need for 
            aides and associates from time to time and they currently 
            need another teacher's aide.
                 He testified as to the in-home schoolteachers.  He set 
            out their requirements which he indicated were different 
            than teachers.  They were not required to work 8:00 to 5:00 
            but could fit their schedule in but needed to visit each 
            home of a particular student in the program at least once a 
            week.  Mr. Halupnik suggested the in-home program for the 
            claimant as it is less strenuous than the classroom setting 
            and claimant would be a consultant to the parents and her 
            situation would be flexible as to her required standing, 
            sitting, etc.  He indicated that the school is always 
            willing to accommodate a person.  He indicated these 
            particular jobs could be full time or part-time and that 30 
            hours a week would be considered full time making one 
            eligible for health, dental benefits and long-term 
            disability.  He said teacher's aides or associates are paid 
            between $5.50 to $7.50 per hour and are paid differently 
            than a regular teacher.
                 Mr. Halupnik said claimant was a good instructor and 
            had no blemishes on her record.  He said that claimant was 
            motivated and does not know of any reason why claimant 
            wouldn't want to teach other than because of her injury.
                 He acknowledged that he had not read claimant's medical 
            or the Mayo medical reports which indicated claimant cannot 
            be a teacher so he had no knowledge of this fact.
                 He acknowledged that the school district has never 
            offered claimant another job nor has the insurance company 
            asked him or the school district to sit down with the 
            claimant and work something out.  He knew the defendants 
            hired Jo Nye, the rehabilitation consultant, but did not 
            know of the relationship.
                 Mr. Halupnik acknowledged that claimant was never 
            notified of the home education plan that occurred in July of 
            1991, and that another teacher did get it.  He also admitted 
            that assuming claimant called today for the home study job, 
            claimant couldn't have it as such because it must be 
            advertised and the district would have to give first 
            preference to an existing employee schoolteacher and then if 
            no one qualified, the advertisement would be opened to the 
            public.  He also acknowledged that the position was highly 
            sought after and there are usually a number of applicants 
            for the positions.  Mr. Halupnik, again upon questioning, 
            emphasized that he is limited to making an offer to the 
            claimant.  In other words, hiring must go through a 
            procedure which involves advertising in a newspaper, 
            interviews and looking at credentials and resumes to get the 
            most qualified.  He was asked why he didn't notify the 
            claimant of the home study plan position and he indicated he 
            didn't know her at the time but said that the defendants or 
            Page   7
            the rehabilitation consultant did.  Mr. Halupnik, again upon 
            recross-examination, affirmed that in the filling of the 
            teacher home study position, if a member currently on the 
            staff applied who is a qualified applicant under the union 
            contract, this person other than the claimant would be 
            hired.  Mr. Halupnik then indicated that if he knew claimant 
            was a former teacher with a disability the contract doesn't 
            prevent claimant from being called and some job opening 
            possibly made available.  He indicated the school district 
            has never done this as to full-time teachers.  He also 
            indicated the insurance company never requested that the 
            school district inform them of any job openings so they 
            could meet with claimant or the school district.
                 Jo Nye, a nurse consultant and rehabilitation 
            specialist whose job entails assisting people to get back to 
            work and trying to place the handicapped, was hired by 
            defendant insurance company.  She testified in person and 
            through her deposition on November 13, 1992 (Jt. Ex. 21).  
            She was to attempt to see the parameters of the possibility 
            that the defendant employer could modify a job for the 
            claimant.  She emphasized that she was not an adversary and 
            that she usually works with a former employer first and 
            primarily to try to get the claimant's job back.  She 
            related her conversation with the defendants' attorney and 
            her attempt to get in contact with claimant's attorney and 
            the problems she indicated she encountered.  Ms. Nye was 
            asked about the video tape (Joint Exhibit 28) which is a 
            video of the alleged teaching position that claimant had had 
            as a first grade teacher and she acknowledged that she took 
            that to Dr. Hayne to see if this was a job in his opinion 
            claimant could do.  She said the doctor was to issue a 
            written report but never did.  She did point out joint 
            exhibit 2, page 4, in which Dr. Hayne did check a form 
            letter of hers indicating that he did feel that the claimant 
            could perform the duties and physical requirements as 
            outlined in the first grade teaching position.  Ms. Nye 
            opined that she felt claimant was capable to go into the 
            home school study program.  She was questioned as far as the 
            video tape (Jt. Ex. 27) and indicated that this tape wasn't 
            the vehicle to show claimant with the limp, but only that 
            she was not using the proper body mechanics.  She was 
            questioned about reviewing the tape with Dr. Hayne and yet 
            not contacting Mayo Clinic, which was treating claimant and 
            who had issued restrictions.  She indicated it was Dr. Hayne 
            who did the surgery and not Mayo.  Ms. Nye said she thought 
            the defendants' attorney was going to contact Mayo regarding 
            the video.
                 Ms. Nye was then questioned about joint exhibit 28, the 
            video which showed the school teaching position and what a 
            first grade teacher did during the day.  She acknowledged 
            that it did not show a full eight hours but that the tape 
            was cut down on time.  She emphasized it was to show the 
            particulars themselves and not the repetitiveness of a task 
            or the time spent doing the particular task.  She 
            acknowledged that she was not aware of the home school job 
            Page   8
            and that the school district had never made her aware of it.
                 Ms. Nye was not involved or personally aware of any 
            in-home schoolteacher position that was offered to claimant.  
            Defendants' attorney then indicated on the record at Ms. 
            Nye's deposition (Jt. Ex. 21) that it was his understanding 
            that no specific offer had ever been made to the claimant as 
            to the in-house school teaching position (Jt. Ex. 21, p. 6).  
            She also acknowledged that she was aware of a report by Ann 
            H. Schutt, M.D.
                 Joint exhibit 23 is the deposition of Byron F. Robison 
            taken May 29, 1992.  He testified that he took the video of 
            claimant on two days, April 26, 1991 (approximately four 
            hours) and April 27, 1991 (12 hours).  He acknowledged that 
            Mr. Bowers was involved in some of these videos.  He also 
            testified as to certain information he obtained regarding 
            the claimant which also appeared to include something on the 
            claimant's husband.  A good part of the deposition had to do 
            with the claimant asking questions and leaving the strong 
            impression that the whole surveillance process in obtaining 
            information on claimant was wrong and contrary to either the 
            law or the dignity of the claimant's.  The undersigned might 
            add that he does not believe that the taking of a video and 
            surveilling the claimant on cases of this type is wrong and 
            can serve a purpose.  Oftentimes, the party doing the 
            surveillance helps the party against whom they intend to 
            use.  When one is making a substantial claim as being made 
            here, it would seem very logical to consider a surveillance.
                 Ray Steiner testified through his deposition taken on 
            May 13, 1992 (Jt. Ex. 24).  Mr. Steiner is the person who 
            actually took the video and worked for Mr. Robison.
                 Ronald M. Pattison testified through his deposition on 
            November 13, 1992 (Jt. Ex. 26).  He was the principal at the 
            time claimant incurred her injury in October 1987.  He 
            couldn't recall if he ever offered claimant a first grade 
            position and believed after reviewing his notes that he had 
            talked with claimant as to interviewing for a kindergarten 
            job but didn't recall if it was for a full-time or part-time 
            position.  He said claimant was a good employee and that she 
            was a fourth grade teacher at the time of her injury.  He 
            acknowledged that he didn't offer the job to claimant but 
            that if she applied for it, she would have to go through the 
            interview process and that there would be no guarantee she 
            would secure the job as they would have to advertise it 
            publicly within the school district and they would have to 
            post that position in order to see if there were others on 
            the staff who might be interested in it.  He said that it 
            was binding process under the teachers' union contract.  If 
            a teacher bid on the job, seniority is one of the things 
            taken into consideration in addition to experience and 
            previous evaluations.
                 Mr. Pattison opined that if claimant's rehabilitation 
            period had elapsed and she was released by the doctor, she 
            would be able to return to work and resume her duties as a 
            schoolteacher and could have returned back to the fourth 
            Page   9
                 Jeff L. Johnson, a certified rehabilitation consultant, 
            testified through his deposition on November 13, 1992 (Jt. 
            Ex. 20).  He indicated the majority of his work that he does 
            is job placement with a variety of insurance companies in 
            the Des Moines area.  His report is represented by joint 
            exhibit 10, dated July 12, 1991.  He acknowledges his report 
            at that time listed certain targeted jobs he felt claimant 
            could do and that that was just a selected number of 
            positions out of 5 percent employment that she could 
            perform.  Mr. Johnson's report of July 12, 1991, is 
            reflected by joint exhibit 10.
                 Robert A. Hayne, M.D., testified through his deposition 
            on September 6, 1991, represented by joint exhibit 19.  The 
            doctor testified that his first contact with the claimant as 
            to any back problems was June 8, 1981.  He said claimant 
            underwent a lumbar laminectomy in 1981 and that was to try 
            to obtain relief in the right sacroiliac area with the pain 
            increasingly frequent and severe in the back of claimant's 
            right thigh.  The doctor indicated that he issued permanent 
            restrictions to claimant after this 1981 surgery which 
            amounted to a 30 to 35 pound weight restriction and 
            avoidance of repetitious bending of her back.  The next time 
            the doctor saw her was on August 3, 1988, pursuant to 
            claimant's fall in October of 1987.  The doctor testified 
            that he saw claimant again on November 14, 1988, at which 
            time she was experiencing pain and that she was having 
            difficulty teaching because of the pain over the low back 
            and in the back of the right lower extremity.  He 
            recommended that she stay off teaching until November 28, 
            1988.  He recommended an enhanced CT scan.  He then saw her 
            in December of 1988 when she was hospitalized because of 
            experiencing increasingly severe pain.  On January 30, 1989, 
            he saw the claimant who had not worked since November 14, 
                 The doctor said the December 1988 myelographic study 
            showed a mild disc bulge at the third lumbar interspace and 
            at the fourth lumbar interspace primarily in the midline.  
            There was also evidence of degenerative disc disease at the 
            L1,2, at the L-4,5, and at the L-3,4 levels (Jt. Ex. 19, p. 
            11 and 12).
                 Exploratory surgery was carried out on February 28, 
            1989.  The doctor saw her on August 15, 1989, and eventually 
            referred her to Mayo Clinic.  The doctor then did not see 
            her until August 30, 1991, at which time she was having pain 
            in her right buttock and in the back of her right lower 
            extremity and numbness in her right foot.
                 The doctor opined as to when he thought claimant could 
            return back to teaching in some capacity.  He testified that 
            claimant could make a trial of it and determine by the trial 
            of it whether she would be able to continue working.  He 
            indicated it appeared at the time of his last examination 
            that the outlook was not too good for her being able to 
            continue with her regular teaching duties in view of her 
            Page  10
            continuous complaints of pain (Jt. Ex. 19, p. 17).
                 The doctor did not see any specific statements in the 
            record as to claimant's restrictions but he indicated that 
            when one has a lumbar laminectomy, he would recommend that 
            they do not lift over 35 to 40 pounds and avoid repetitious 
            bending of the lumbosacral spine.  He indicated that Mayo 
            Clinic was one pursuing these measures.  He did not have 
            claimant engage in work hardening programs because he felt 
            claimant's condition had not improved to the state where he 
            felt he could make such a recommendation in good faith (Jt. 
            Ex. 19, p. 19).
                 The doctor was also asked whether he recalled filling 
            out a statement presented to him by Jo Nye and he did not 
            recall filling out a statement for her (Jt. Ex. 19, p. 21).  
            He also could not recall any particular thing he saw in the 
            video as to claimant performing any particular thing.
                 He affirmed his comment in a letter of October of 1989 
            to defendant insurance company that he did not feel claimant 
            had ever obtained what he would call good results following 
            the claimant's second surgery.  He felt that she did obtain 
            good results from the initial surgery back in 1980 or 1981.  
            He agreed with the work evaluation of Dr. Schutt, of the 
            Mayo Clinic, represented in a letter of July 16, 1990.
                 On cross-examination, the doctor said that he believed 
            claimant could perform such activities as sitting or 
            standing if allowed to alternate between sitting and 
            standing in a teaching job; she could write on the 
            chalkboard; she could pass out papers; read books to the 
            children; assist children with math; and observe the 
            playground assuming she wouldn't be picking up any children.  
            The doctor then was handed deposition exhibits 2 and 3 which 
            were lists of certain activities done by a first grade 
            teacher.  The doctor thought claimant would be able to do 
            those things listed thereon.  The doctor did indicate that 
            he wasn't opining that claimant could do those things as a 
            schoolteacher listed thereon eight hours a day, day in and 
            day out, twelve months a year, or whatever the demands of a 
            schoolteacher are on a full-time basis (Jt. Ex. 19, p. 33).  
            The doctor questioned whether claimant could go to a 
            full-time position on 40 hours a week and handle the types 
            of tasks that were indicated therein.
                 The doctor opined that claimant had a 12 percent 
            impairment of her body as a whole (Jt. Ex. 19, p. 39).  
            Joint exhibit 11 is a May 1, 1991 letter from the Principal 
            Financial Group which indicates that claimant was still on 
            total disability from working any job based on her 
            background and training.  Claimant was getting long-term 
            disability benefits through this insurance company which was 
            through a policy with the Carlisle Community School 
            District.  One of the attachments to that statement 
            represented by joint exhibit 11, page 187, is an attending 
            physician statement signed by Dr. Schutt in which she has 
            checked thereon that claimant is not a suitable candidate 
            for rehabilitation services and that the present job cannot 
            Page  11
            be modified to allow for handling with her impairment and 
            that claimant is totally disabled, etc.  Joint exhibit 9 is 
            the social security administration's award letter dated 
            October 29, 1990, in which claimant was determined to be 
            totally disabled.
                 Joint exhibit 4 is an August 20, 1992 letter of William 
            R. Boulden, M.D.  He did an independent medical evaluation.  
            In his letter, he indicates that no matter what is attempted 
            to be done with claimant she will have minimal success in 
            treatment.  He said that while she is disabled, it would be 
            hard pressed to rehabilitate her to get her back to physical 
            functioning and working again.  He concurred with the Mayo 
            Clinic's rating and felt that he was dealing with a failed 
            back syndrome with underlying chronic pain syndrome that 
            basically will be probably recalcitrant to any type of 
            orthopedic management.
                 Joint exhibit 1 is the records of Mayo Clinic.  A 
            letter from them on July 16, 1990, represented by pages 1 
            through 4, and their letter of June 1, 1992, pages 10 and 
            11, basically sums up the situation as to claimant and their 
            treatment and diagnosis of her.  Their June 1, 1992 letter 
            indicates that claimant's condition has not changed their 
            letters of July 16, 1990 and July 11, 1991, and that 
            claimant would not be able to perform repetitive work that 
            would be necessary for her to be able to change positions 
            frequently with adequate rest periods and that she would be 
            unable to return to her teaching job.  They also understood 
            that claimant was declared totally and permanently disabled 
            by the social security administration and totally 
            unemployable by the Iowa State Department of Vocational 
            Rehabilitation, and is not capable of returning to full-time 
            employment by Dr. Hayne.  Dr. Schutt, on behalf of Mayo 
            Clinic, did not dispute these determinations.  They further 
            wrote that claimant was motivated and that she desired to 
            return to work after her injury and that she simply was not 
            physically able to continue.  They also indicated that they 
            did not feel claimant's back condition prior to her 1987 
            injury had any bearing on her current condition.
                 The undersigned has viewed joint exhibit 27, which was 
            offered to show claimant doing certain bending and lifting, 
            and joint exhibit 28, which was offered to represent the 
            duties of a first grade teacher.
                 The parties had stipulated that claimant had a healing 
            period from November 16, 1987 through November 22, 1987.  
            They were disputing as to another healing period of November 
            15, 1988 through January 16, 1990.  Although it appears 
            there is no dispute as to the period of time, the dispute 
            was to whether there was any causal connection as to this 
            alleged healing period and claimant's October 28, 1987 
            injury.  During this latter part of time, claimant was 
            having treatment and going through various tests and 
            procedures and ultimately had an exploratory surgery, a 
            laminectomy in February of 1989.
                 The parties also stipulated that any permanent 
            Page  12
            disability benefits would run from January 17, 1990.  It 
            would seem logical that if in fact there was a dispute as to 
            this second healing period, then the parties would have 
            disputed the beginning of permanent partial disability 
            benefits if any were awarded and would run them from a 
            different period of time.  In this instance, it would run 
            from the end of the first healing period, namely, November 
            22, 1987.
                 The undersigned therefore finds that the greater weight 
            of medical evidence shows claimant did incur a healing 
            period beginning November 15, 1988 through January 16, 1990, 
            and that said period was causally connected to claimant's 
            October 28, 1987 work injury.
                 The only remaining issue is the extent of claimant's 
            permanent disability and entitlement to disability benefits.   
            The defendants have paid the equivalent of approximately 17 
            percent industrial disability (85.143 weeks).  Claimant is 
            not working and has not worked for a few years because of 
            her injury.  Claimant contends she is unable to work.  
            Claimant contends that she is not able to perform her duties 
            or job as a schoolteacher and that this is where her 
            transferable skills lie.  She does have a real estate 
            license which is now inactive and she has not attempted to 
            use since her injury but takes the position she is unable to 
            do that type of work, also.
                 Defendants contend that claimant could teach and if not 
            full time or as a first grade teacher or fourth grade 
            teacher, the position she held at the time of her 1987 
            injury, she could teach part-time or take part in a home 
            study program even full time if she desired and could adjust 
            her hours and her certain style of teaching as far as 
            staying within her restrictions.
                 It seems undisputed that claimant was considered and 
            had a job as a full-time teacher until July of 1990.  It 
            would appear possibly she could have had a position as a 
            first grade teacher or possibly kindergarten but not 
            necessarily the fourth grade position she had at the time of 
            her 1987 injury even though that is not absolutely clear.
                 There is no dispute that claimant has been considered 
            totally disabled through the social security administration 
            award dated October 29, 1990.  It is found that claimant 
            would be entitled to benefits beginning in August of 1989 
            (Jt. Ex. 9).  It is generally true that it is not easy to 
            get a social security award for being totally disabled.  
            Although there is to some extent different criteria, this is 
            an item to consider.  The Iowa State Vocational 
            Rehabilitation Department in September 1990 found claimant 
            was not eligible for vocational rehabilitation services and 
            that there was not a reasonable expectation that vocational 
            rehabilitation services would benefit the claimant in terms 
            of employability.  Claimant was considered to be severely 
            disabled due to her being severely limited in the area of 
            work tolerance (Jt. Ex. 8).
                 Mayo Clinic, who has treated claimant since 1989, takes 
            Page  13
            the position that claimant is permanently disabled (Jt. Ex. 
            1, p. 10).  Dr. Schutt did not dispute the determination of 
            social security and the Iowa State Department of Vocational 
            Rehabilitation that claimant was permanently and totally 
            disabled or totally unemployable.  Dr. Robert Hayne did not 
            dispute these determinations made by the above two entities 
            and also said claimant was not capable of returning to 
            full-time employment.
                 The medical evidence is overwhelming, particularly 
            taking into consideration the opinions or conclusions of 
            other agencies who relied on medical evidence that claimant 
            is permanently disabled.
                 There has been testimony to the fact that claimant 
            could possibly perform duties as a home study teacher and 
            that possibly she could have had this type of job if she 
            tried.  There seems to be an inference or allegations that 
            claimant is not motivated.  The record is clear that when 
            these possible jobs may have occurred or been instituted, 
            particularly the home study teacher job, claimant was not 
            notified of these jobs and, in fact, she would have had to 
            apply like anyone else and top priority would have been 
            given to a presently employed teacher who with seniority and 
            under the union contract would have had top priority and, in 
            fact, such a teacher did obtain that particular job.
                 No one has been able to obtain a job for the claimant.  
            The undersigned believes she has a history of being 
            motivated.  It is true that having been determined to be 
            totally disabled by the various institutions can tamper 
            one's motivation to go out and look for a job.  Yet, the 
            undersigned does not believe that one should necessarily 
            seek out and try to do a hopeless and likely totally 
            unproductive search.  Claimant, herself, does not believe 
            she can work but that isn't determinative.  There has been 
            some very discriminatory agencies that have concurred with 
            the claimant and the undersigned believes with the criteria 
            of those organizations and the criteria under the workers' 
            compensation law, claimant has proven her case and sustained 
            her burden to show that she is totally and permanently 
                 Am exhibit was offered by defendants to show the 
            position of a first grade teacher and the type of job it 
            encompasses which would be something that claimant could do, 
            particularly with her teaching skills.  Claimant was well 
            thought of as a teacher.  It is obvious from the tape that 
            it depicts certain tasks that a teacher does but does not 
            depict the length of time those tasks are done or does it 
            include other tasks that would be required of a teacher.  
            Also, it just depicts what tasks were for this particular 
            teacher during that day.  Claimant has a problem on 
            repetitive movements and type of work in addition to her 
            having to be careful concerning her length of standing, 
            sitting and her lifting restrictions.  The undersigned 
            believes that the video does not do away with the 
            overwhelming medical evidence and conclusions of others that 
            Page  14
            claimant is totally disabled.
                 Joint exhibit 28 shows claimant doing some bending and 
            picking up a grandchild that could possibly weigh 20 pounds.  
            It would seem when listening to the claimant that she would 
            be unable to do those things that are depicted in the video.  
            The fact is she did them and seemed to do them with ease and 
            without a problem.  Although this may seem to contradict the 
            medical evidence or conclusions by these agencies, the 
            matter of fact is that claimant is still living and even 
            though being totally disabled as found by the undersigned, 
            doesn't mean that she isn't able to do anything, cannot live 
            or may not do things on an isolated or temporary basis that 
            might be contradictory to some of her restrictions.  
            Claimant is not to do certain things.  That doesn't mean she 
            won't or cannot do them.  Joint exhibit 28 does not show her 
            doing the squatting, bending or lifting repetitively hour 
            after hour, day after day, in a full-time job or even what 
            we consider a part-time.  It is not unusual for someone to 
            go beyond their expectations or restrictions, particularly 
            on an isolated basis, when things are necessary in their 
            daily living.
                 There is no evidence of claimant malingering.  There 
            was plenty opportunity for the doctors or rehabilitation 
            consultant to see through the claimant if that was the 
                 The Mayo Clinic and Dr. Hayne are well thought of in 
            the medical field.
                 The undersigned observed the claimant during the 
            hearing, both while testifying and her actions and demeanor 
            while in the hearing room.  The undersigned believes the 
            claimant is in pain and that claimant would rather be 
            teaching than being in her current condition.  The 
            undersigned believes claimant is a credible witness and is 
            not a malingerer and is, in fact, permanently totally 
            disabled as a result of October 28, 1987 injury, and so 
                 Claimant is 57 years of age and her skills are 
            basically in the teaching field even though she does have a 
            real estate license that is inactive.  The evidence is very 
            clear that claimant's surgery in the first part of 1980 was 
            not affecting her and if, in fact, there was any impairment 
            at the time, there is no evidence of an effect of an 
            impairment at the time of her injury on October 28, 1987.  
            Claimant was doing her work as a schoolteacher and having no 
            problem.  The undersigned is taking into consideration 
            claimant's pre and post-injury medical, work history and 
            experience; her aptitude and intellectual abilities; her 
            emotional situation; the location and severity of her 
            injury; her healing period; her motivation; functional 
            impairment; and any other item that is to be considered in 
            determining industrial disability and after considering 
            those has arrived at the conclusion heretofore set out.
                 Claimant shall receive weekly benefits at the rate of 
            $280.00 per week from the date stipulated to by the parties, 
            Page  15
            namely, January 17, 1990, for as long as claimant remains 
            permanently and totally disabled.
                                conclusions of law
                 The claimant has the burden of proving by a 
            preponderance of the evidence that the injury of October 28, 
            1987, is causally related to the disability on which she now 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
            probability is necessary.  Burt v. John Deere Waterloo 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
            question of causal connection is essentially within the 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
                 Functional impairment is an element to be considered in 
            determining industrial disability which is the reduction of 
            earning capacity, but consideration must also be given to 
            the injured employee's age, education, qualifications, expe
            rience and inability to engage in employment for which he is 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
            285, 110 N.W.2d 660 (1961).
                 A finding of impairment to the body as a whole found by 
            a medical evaluator does not equate to industrial disabil
            ity.  This is so as impairment and disability are not syn
            onymous.  Degree of industrial disability can in fact be 
            much different than the degree of impairment because in the 
            first instance reference is to loss of earning capacity and 
            in the latter to anatomical or functional abnormality or 
            loss.  Although loss of function is to be considered and 
            disability can rarely be found without it, it is not so that 
            a degree of industrial disability is proportionally related 
            to a degree of impairment of bodily function.
                 Factors to be considered in determining industrial dis
            ability include the employee's medical condition prior to 
            the injury, immediately after the injury, and presently; the 
            situs of the injury, its severity and the length of healing 
            period; the work experience of the employee prior to the 
            injury, after the injury and potential for rehabilitation; 
            the employee's qualifications intellectually, emotionally 
            and physically; earnings prior and subsequent to the injury; 
            age; education; motivation; functional impairment as a 
            result of the injury; and inability because of the injury to 
            engage in employment for which the employee is fitted.  Loss 
            of earnings caused by a job transfer for reasons related to 
            the injury is also relevant.  These are matters which the 
            finder of fact considers collectively in arriving at the 
            determination of the degree of industrial disability.
                 There are no weighting guidelines that indicate how 
            each of the factors are to be considered.  There are no 
            guidelines which give, for example, age a weighted value of 
            ten percent of the total value, education a value of fifteen 
            percent of total, motivation - five percent; work experience 
            - thirty percent, etc.  Neither does a rating of functional 
            Page  16
            impairment directly correlate to a degree of industrial 
            disability to the body as a whole.  In other words, there 
            are no formulae which can be applied and then added up to 
            determine the degree of industrial disability.  It therefore 
            becomes necessary for the deputy or commissioner to draw 
            upon prior experience, general and specialized knowledge to 
            make the finding with regard to degree of industrial dis
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
            (Appeal Decision, March 26, l985).
                 It is further concluded that:
                 Claimant incurred a work injury on October 28, 1987, 
            which caused claimant to be permanently totally disabled.
                 Claimant did not have any preexisting injury or 
            impairment that affected claimant's work or physical 
            condition in the performance of her job up to October 28, 
            1987, the date of her injury.
                 Claimant incurred a healing period beginning November 
            16, 1987 through November 22, 1987, and another healing 
            period beginning November 15, 1988 through January 16, 1988.
                 Claimant has a permanent impairment and permanent 
            restrictions as a result of her October 28, 1987 work 
            Page  17
                 THEREFORE, it is ordered:
                 That defendants shall pay unto claimant sixty-two (62) 
            weeks of healing period benefits at the rate of two hundred 
            eighty dollars ($280.00) per week for the periods of 
            November 16, 1987 through November 22, 1987 (one week) and 
            for the period of November 15, 1988 through January 16, 1990 
            (61 weeks).  Defendants have already paid sixty-two (62) 
            weeks of healing period at the rate of two hundred eighty 
            dollars ($280.00) per week.
                 That defendants shall pay claimant compensation for 
            permanent total disability at the stipulated rate of two 
            hundred eighty dollars ($280.00) per week during the period 
            of claimant's disability, commencing at the stipulated date 
            of January 17, 1990.
                 That defendants shall pay accrued weekly benefits in a 
            lump sum and shall receive credit against the award for 
            weekly benefits previously paid.  The defendants have 
            already paid sixty-two (62) weeks of healing period benefits 
            and eighty-five point one four three (85.143) weeks of 
            permanent disability benefits.
                 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.
                 The issue of Iowa Code section 86.13 penalty benefits 
            is bifurcated.
                 Signed and filed this ____ day of December, 1992.
                                          BERNARD J. O'MALLEY
                                          DEPUTY INDUSTRIAL COMMISSIONER
            Copies to:
            Mr Donald G Beattie
            Attorney at Law
            204 SE 8th St
            P O Box 367
            Altoona IA 50009
            Mr Brian Scieszinski
            Attorney at Law
            801 Grand Ave  Ste 3700
            Des Moines I0309-2727
            Page  18
                                          Filed December 30, 1992
                                          Bernard J. O'Malley
                     before the iowa industrial commissioner
            CAROLYN BOWERS,               :
                 Claimant,                :
            vs.                           :
                                          :      File No. 869665
                                          :     A R B I T R A T I O N
                 Employer,                :
                                          :       D E C I S I O N
            and                           :
                 Insurance Carrier,       :
                 Defendants.              :
            Found 57-year-old claimant permanently and totally disabled.  
            She was a schoolteacher.