BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
                                        
 
         MARY KEEVER,
 
         
 
              Claimant,
 
         
 
         VS.                                          File No. 870104
 
         
 
         MUSCATINE COMM. SCHOOL DIST.,             A R B I T R A T I O N
 
         
 
               Employer,                                 D E C I S I O N
 
         
 
         and
 
         
 
         EMPLOYERS MUTUAL INS.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Mary Keever, 
 
         claimant, against Muscatine Community School District, employer, 
 
         and Employers Mutual, insurance carrier, defendants, for benefits 
 
         as the result of an alleged injury that occurred on November 5, 
 
         1987.  A hearing was held in Davenport, Iowa, on October 24, 
 
         1989, and the case was fully submitted at the close of the 
 
         hearing.  Claimant was represented by Michael W. Liebbe. 
 
         Defendants were represented by Thomas N. Kamp.  The record 
 
         consists of the testimony of Mary Keever, claimant; Becky 
 
         Parkins, rehabilitation specialist; Kent A. Jayne, rehabilitation 
 
         specialist; Craig Paul, high school principal; joint exhibits 1 
 
         through 17 and claimant's exhibits A through C.  The deputy 
 
         ordered a transcript of the hearing.  Both attorneys submitted 
 
         outstanding briefs.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters at the time 
 
         of the hearing:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the injury.
 
         
 
              That the time off work for which claimant now seeks 
 
         temporary disability benefits is stipulated to be from November 
 
         9, 1987 through November 30, 1987 and from December 17, 1987 
 
         through April 28, 1988.
 
         
 
         
 
         
 
         KEEVER V. MUSCATINE COMMUNITY SCHOOL DIST.
 
         Page 2
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
              That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is industrial 
 
         disability to the body as a whole.
 
         
 
              That the commencement date for permanent partial disability 
 
         benefits, in the event such benefits are awarded, is April  29, 
 
         1988.
 
         
 
              That the rate of compensation, in the event of an award of 
 
         benefits, is $199.39 per week.
 
         
 
              That claimant's entitlement to medical benefits has all been 
 
         paid or will be paid if it is determined that claimant sustained 
 
         a compensable injury.
 
         
 
              That defendants make no claim for credit for employee 
 
         nonoccupational group health plan benefits paid to claimant prior 
 
         to hearing.
 
         
 
              That defendants have paid 37 weeks and 3 days of workers, 
 
         compensation benefits to claimant at the rate of $199.39 per week 
 
         prior to hearing.
 
         
 
              That there are no bifurcated claims.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether claimant sustained an injury on November 5, 1987, 
 
         which arose out of and in the course of employment with employer.
 
         
 
              Whether the alleged injury was the cause of either temporary 
 
         of permanent disability.
 
         
 
              Whether claimant is entitled to either temporary or 
 
         permanent disability benefits, and if so, the extent of benefits 
 
         to which she is entitled.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Claimant, born March 12, 1965, was 22 years old at the time 
 
         of the alleged injury and 24 years old at the time of the 
 
         hearing.  She is single and lives with her parents.  Claimant 
 
         graduated from high school in 1983.
 
         
 
              Claimant's complete employment history was succinctly, yet 
 
         comprehensively, summarized by Becky Parkins, M.A., C.R.C., at 
 
         joint exhibit 11 as follows:
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         KEEVER V. MUSCATINE COMMUNITY SCHOOL DIST.
 
         Page 3
 
         
 
         
 
         JOB   TITLE       DATES OF EMPLOYMENT     WAGES
 
         
 
         1) Food Server    1981-1982, 28 hrs/week  $3.10/hr. plus tips
 
         
 
         2) Bakery Helper  1981, summer            $2.00/hr.
 
         
 
         3) Retail Sales   1983, 1 month           $3.50/hr.
 
         
 
         4) Window
 
            Manufacturer   1984, 2 1/2 weeks       $3.50/hr.
 
         
 
         5) Mail Sorter    1984, 2 weeks           $3.58/hr.
 
         
 
         6) Janitor        1985, part-time         $8.12/hr.
 
                           1986, full-time
 
                           until 11/5/88
 
         
 
         Ms. Keever has worked in the following capacity since her injury:
 
         
 
         1) Insurance      11/87 to 6/89           commission
 
            Sales          part-time
 
         
 
         2) Mailing Machine 1989, 7 weeks total    $3.58/hr.
 
            operator
 
         
 
         (joint exhibit 11)
 
         
 
              Claimant started to work for employer in approximately 
 
         October of 1985 as a part-time janitor in the custodial 
 
         maintenance department.  She became a full-time janitor on 
 
         October 1, 1986, and worked in that capacity until December 1, 
 
         1987.  Claimant denied any prior back injuries and her medical 
 
         records support this testimony.  Although she was involved in a 
 
         moped accident in 1979, and an automobile accident in 1983, there 
 
         was no evidence of any back complaints or injury from either   
 
         One of these accidents (jt. exs. 7, 11; transcript pages 23, 89).
 
         
 
              Claimant was injured on November 5, 1987, while lifting a 
 
         50-gallon drum, which was 3/4 full of dissected dead cats, into a 
 
         dumpster which was approximately chest high.  Claimant alleged 
 
         that the barrel weighed between 100 and 150 pounds and that she 
 
         was performing a lifting and twisting maneuver when she 
 
         experienced instant pain in her lower.back that went down her 
 
         left leg (tr. pp. 22, & 23) . Claimant testified that she 
 
         reported the injury to a supervisor and then told her father who 
 
         was also employed by employer.  Claimant testified that she saw 
 
         her own personal physician who took her off work until December 
 
         1, 1987.  Employer sent claimant to see Ronald D. Olson, M.D., on 
 
         January 7, 1988.  Dr. Olson sent claimant to see William R. 
 
         Pontarelli, M.D., an orthopedic surgeon, who first saw claimant 
 
         on January 22, 1988 (jt. exs. 4, 5; tr. pp. 26 & 27).  Dr. 
 
         Pontarelli's x-
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         KEEVER V. MUSCATINE COMMUNITY SCHOOL DIST.
 
         Page 4
 
         
 
         
 
         rays revealed narrowed disc space at L5-Sl.  He continued to keep 
 
         her off work and ordered a CAT scan which showed a minimal 
 
         bulging disc at L5-Sl (jt. exs. 5 & 15).  Dr. Pontarelli ordered 
 
         a myelogram from J.B. Worrell, M.D., a neurologist.  The 
 
         myelogram radiologist reported:
 
         
 
                   There is excellent visualization of the nerve roots and
 
                   their sheeth [sic] and no [sic] cut off signs are
 
                   demonstrated.  On the lateral view taken prone at the
 
                   4-5 level there is (sic] a very minor smooth 
 
         indentation
 
                   to the contrast material anteriorly raising the
 
                   possibility of some bulging of the anulus [sic] at this
 
                   level.
 
         
 
         (jt. ex. 1)
 
         
 
              The radiologist concluded that it was a negative myelogram 
 
         (jt. ex. 1).  Dr. Pontarelli explained the myelogram might not 
 
         show a small little bulge at L5-S1 because this is a very large 
 
         disc space and the myelogram die might not make an impression  
 
         (jt. ex. 15).  Dr. Pontarelli believed that the lifting incident 
 
         which occurred on November 5, 1987, while lifting the trash, 
 
         injured claimant's back and caused the condition at both L5-S1 
 
         and L4-L5 (jt. ex. 15). 
 
         
 
              Dr. Worrell diagnosed a severe lumbosacral strain.  His 
 
         neurological examination was essentially negative.  His EMG was 
 
         negative.  His interpretation of the CT scan said there was 
 
         nothing really to suggest a ruptured disc (jt. ex. 1).  Dr. 
 
         Pontarelli concluded there was not a significant lesion that 
 
         would warrant surgery and he referred claimant to the university 
 
         of Iowa Low Back Rehabilitation Center (jt. ex. 15).
 
         
 
              Dr. Pontarelli said claimant was precluded from lifting 40 
 
         to 45 pounds repetitively, which meant 20 times a day.  He added 
 
         that claimant was pretty badly deconditioned from just lying 
 
         around after the injury (ex. 17).  Dr. Pontarelli assessed a 5 
 
         percent permanent functional impairment to the whole body based 
 
         on low back pain and disc problems without surgery based upon the 
 
         American Academy of Orthopedic Surgeons Guide to Evaluating 
 
         Permanent Impairments (jt. ex. 17).
 
         
 
              Dr. Miely (full name unknown) at  the University of Iowa, in 
 
         association with Ernest M. Found, Jr., M.D., examined claimant on 
 
         March 23, 1988, determined that claimant had low back pain, 
 
         possibly secondary to degenerative disc.  Dr. Pontarelli, 
 
         however, countered that claimant was a bit young for degenerative 
 
         disc disease to be a possibility (jt. exs. 3 & 17).  Dr. 
 
         Pontarelli added that the bulge could occur through normal wear 
 
         and tear, but that it would be unusual because she was only 22 
 
         years of age (jt. ex. 17).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         KEEVER V. MUSCATINE COMMUNITY SCHOOL DIST.
 
         Page 5
 
         
 
         
 
              Claimant was further examined at the Spine Diagnostic and 
 
         Treatment Center, Department of Orthopaedic Surgery, at the 
 
         University of Iowa Hospitals and Clinics, by Dr. Found.  He 
 
         determined on March 23, 1988, that claimant was very 
 
         deconditioned and needed a vigorous reconditioning program  (jt. 
 
         ex. 2).  An evaluation was made and a program recommended on 
 
         March 31, 1988.  Claimant was to remain off work for another four 
 
         weeks (jt. ex. 2).
 
         
 
              On May 4, 1988, Dr. Found determined that the healing period 
 
         had ended on April 29, 1988.  He assessed a 3 percent impairment 
 
         rating as the result of this low back injury (jt. ex. 2).  A one 
 
         day functional capacity assessment performed at the university 
 
         under the direction of Dr. Found on March 31, 1988 determined 
 
         that claimant's current one time maximum lifting limit was 20 
 
         pounds and the repetitive limit would be 10 pounds.  One time was 
 
         defined as once per hour and repetitive was defined as six times 
 
         per hour (jt. exs. 2 & 3).  Claimant indicated to Dr. Found and 
 
         his associates that she did not perceive herself to be able to 
 
         perform her old job and that she was not interested in returning 
 
         to her former job for employer (jt. ex. 2).  Claimant testified 
 
         that employer did not take her back to work on April 29, 1988, 
 
         because they did not have any work within the limitations which 
 
         had been imposed (tr. pp. 29, 69 & 110).
 
         
 
              Claimant then studied life, health and accident insurance 
 
         and passed the examination to be a salesperson on the second 
 
         attempt.  She estimated that she tried to sell insurance for four 
 
         months.  She received $600 in training allowance and two small 
 
         commission checks, one for approximately $76 and one for $133.  
 
         Claimant quit selling insurance because, "I was not a salesman."  
 
         She was losing money on mileage (tr. pp. 31-33).  Claimant then 
 
         returned to work with the mailing company for approximately six 
 
         to eight weeks at $3.48 per hour.  She quit this employment 
 
         because, "It was too much on me physically.  There was a lot of 
 
         lifting to it."   (tr. p. 34).  Claimant then enrolled in the 
 
         American Institute of Commerce (AIC) studying computers to 
 
         ultimately become a computer operator, computer programmer or 
 
         other computer related job.  She was enrolled in this program at 
 
         the time of the hearing (tr. pp. 35 &  36).  Claimant  testified 
 
         that she weighed 135 pounds at the time of injury and 160 pounds 
 
         at the time of hearing (tr. p. 39).
 
         
 
              Claimant testified that since the injury she cannot bowl, 
 
         take long car rides or play golf.  Claimant testified that if she 
 
         sits for a while, her legs hurt.  If she stands for a half hour 
 
         or so, she becomes weak and shaky and her back starts hurting.  
 
         She can only ride in a car for about a half an hour and then she 
 
         has to stop, get out and move around.  She has trouble bending 
 
         down and getting back up again (tr. pp. 39-41).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         KEEVER V. MUSCATINE COMMUNITY SCHOOL DIST.
 
         Page 6
 
         
 
         
 
              Claimant agreed that:prior to the injury she saw 
 
         chiropractors three or four times a year for sore muscles (tr. p. 
 
         42).  She acknowledged that she drove 60 miles, from Muscatine to 
 
         Cedar Rapids, to sell insurance (tr. p. 43).  She agreed that she 
 
         did not mention difficulty driving, at the time of her deposition 
 
         in January of 1989 (tr. pp. 44 & 45).  Claimant testified that 
 
         Dr. Found was the last doctor that treated her and that she did 
 
         not have any appointments to see any doctors in the future (tr. 
 
         pp. 45-48).  Claimant admitted that she had received no surgery 
 
         and that no surgery had been recommended.  Claimant granted that 
 
         she was not presently taking any medications for her back (tr. p. 
 
         50).
 
         
 
              Claimant said she began business  school at AIC on September 
 
         4, 1989 (tr. p. 52).  She hoped to graduate in one year (tr. p. 
 
         53).  Claimant planned to keep up her insurance sales license 
 
         (tr. p. 59).  Claimant granted that she may have testified at 
 
         this hearing that she had D average grades in high school, but at 
 
         the time of her deposition on January 18, 1989, she told 
 
         defendants' counsel that she was a C student in high school (tr. 
 
         p., 64). Claimant admitted that two days prior to the injury she 
 
         was put on final warning for discipline and if she had one more 
 
         problem that she would be discharged (tr. p. 65).  Claimant  also 
 
         agreed that she had told defense counsel she had never used any 
 
         type of exercise bicycle (tr. p. 65), but Parkins testified that 
 
         claimant told her that she used a Schwinn exercise bike, but 
 
         feels it aggravates her back (tr. p. 92).  Claimant testified 
 
         that a chiropractor had never touched her lower back (tr. p. 68).
 
         
 
              Claimant saw Maurice D. Schnell, M.D., on May 4, 1989 and 
 
         May 26, 1989, at the request of her attorney (tr. pp. 46 & 47; 
 
         jt. ex. 13).  Dr. Schnell concluded:
 
         
 
              AP, and lateral x rays of the thoracic spine show no
 
              evidence of degenerative spinal changes, narrowing of
 
              intervertebral disc spaces, deformity of vertebral
 
              bodies, or destructive [sic] bone changes.  AP,
 
              lateral, lateral flexion-extension, and oblique x rays
 
              of the lumbosacral spine fail to demonstrate [sic) any
 
              degenerative spinal changes, narrowing of
 
              intervertebral disc space, change in spinal alignment,
 
              spinal instability, or destructive bone changes.
 
         
 
              IMPRESSION: 1.) Chronic low back  pain with referred
 
              pain into the buttocks, and posterior aspect of both
 
              lower extremities (left greater than the right) without
 
              objective evidence of lumbosacral radiculopathy. (2.)
 
              Etiology of the chronic low back pain undetermined....
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         KEEVER V. MUSCATINE COMMUNITY SCHOOL DIST.
 
         Page 7
 
         
 
         
 
              Limitation of lumbosacral motion.....    8 percent 
 
         impairment
 
              Pain..................................   3 percent 
 
         impairment
 
         
 
              Percent impairment of whole person..     l0 percent 
 
         impairment
 
         (jt. ex. 13, p. 94)
 
         
 
              Parkins, an experienced and highly qualified rehabilitation 
 
         specialist, testified that she provides medical case management 
 
         and vocational services to people who have a disability.  Her 
 
         curriculum vitae is impressive (jt. ex. 16).  She met with 
 
         claimant for two hours on April 4, 1989 and had telephone contact 
 
         with her after that.  On September 20, 1989, she prepared an 
 
         extensive written report (jt. ex. 11).  Parkins completed a very 
 
         detailed labor market access/loss of earnings capacity study and 
 
         concluded as follows:
 
         
 
              Based on my analysis, Ms. Keever lost the capacity to
 
              perform a moderate number of the jobs within the Quad
 
              cities area labor market as a result of the work
 
              related injury to her back she sustained on November 5,
 
              1987. She has experienced no loss in the capacity to
 
              earn wages as a result of the loss of functioning based
 
              on the average median weekly wages of the jobs she
 
              retains the ability to perform.
 
         
 
         (jt. ex. 11, p. 86)
 
         
 
              Parkins testified that claimant was earning $8.12 per hour 
 
         from employer, but that all of her other employments had been 
 
         minimum wage type jobs and in her professional opinion,  claimant 
 
         was being overpaid and was earning a greater wage than normally 
 
         would be expected when she was being employed by employer (tr. 
 
         pp. 87-89).  However, Parkins also testified, "And in janitorial 
 
         positions, the salaries of the employers I contacted were $3.35 
 
         to $8.75 an hours, and there was one current opening.  But nine 
 
         had hired in the last year and were expected to hire."  (tr. p. 
 
         92).
 
         
 
              Claimant introduced a report authored by Kathryn A. Trosen, 
 
         career development counselor at the Muscatine Community College, 
 
         showing that claimant had eighth grade mathematic abilities and 
 
         limited reading abilities (ex. A).  Parkins countered that she 
 
         had the general aptitude battery test, also performed by Trosen, 
 
         which indicated average levels of intelligence, verbal, 
 
         numerical, clerical attitudes, finger dexterity and manual 
 
         dexterity. Numerical aptitude was in the 97 range, which with 100 
 
         being average, is in the average range of numerical functioning 
 
         (tr. pp. 94 & 96).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         KEEVER V. MUSCATINE COMMUNITY SCHOOL DIST.
 
         Page 8
 
         
 
         
 
              Parkins testified that Bettendorf Schools started janitors 
 
         at $8.37 per hour and at six months they earned $9.80 per hour.  
 
         They had replaced two individuals in the past year, but did  not 
 
         currently have an opening (tr. pp. 103 & 104).  Parkins explained 
 
         that she believed that claimant was over compensated when working 
 
         for employer because she believed that claimant qualified on the 
 
         average for jobs that did not pay as much as that particular 
 
         position.  Parkins did concede that claimant did have that job, 
 
         was earning that money, was paid that amount of money, and that 
 
         she did not have that job at the time of hearing (tr. pp. 113 & 
 
         114).  Parkins repeated that claimant's general aptitude test 
 
         battery scores showed average levels of intelligence; verbal; 
 
         numerical; clerical aptitude; finger and manual dexterity.  
 
         Spatial abilities were lower than average, but abilities to 
 
         perceive forms and motor coordination were above average (tr. pp. 
 
         119 & 120).
 
         
 
              Claimant introduced a calculation by Robert L. Riley, 
 
         certified public accountant, which illustrated that the 
 
         difference in earnings between $8.12 and $3.48 per hour equaled 
 
         an earnings loss of $4.64 per hour.  Riley extended this 
 
         calculation over the remaining working lifetime of claimant of 
 
         2,115 weeks and determined that claimant would sustain an actual 
 
         earnings loss of $392,544.  The present value of this loss, based 
 
         upon a 4 percent inflation rate was approximately $193,800 and 
 
         based on a 10 percent inflation rate of $94,800 dollars (ex. B, 
 
         pp. 1-5)
 
         
 
              Kent A. Jayne, a rehabilitation supervisor, prepared an 
 
         economic ana-lysis for claimant's earnings based upon expected 
 
         work life, separation from the work force, productivity, 
 
         inflation, earning power of money and determined that claimant's 
 
         future earnings loss amounted to $105,820, the present value of 
 
         which, at a 7.08 percent rate, amounts to $8,421 (jt. exs. 12 & 
 
         16; tr. pp. 122-124).  Jayne contended Riley's  calculation  was 
 
         incorrect stating that a 7 percent discount rate of $392,544 
 
         resulted in a present value of $24,499 rather than $129,800 as 
 
         Mr. Riley had calculated.  Jayne further contended that 
 
         claimant's work life should have been calculated to age 61 rather 
 
         than age 65.  Jayne further contended that the wage difference 
 
         was much larger than would be indicated if you take into account 
 
         claimant's capacity to earn wages, her aptitude, abilities, 
 
         achievement and work restrictions which he contended would 
 
         justify an hourly wage of $6.75 per hour (tr. pp. 127 & 128).  He 
 
         further contended that $3.48 per hour was not a tested wage rate 
 
         because claimant had only been in that job for two months (tr. p. 
 
         1.29).  Riley further contended that over the 61-year working 
 
         life expectancy claimant would receive some wage increases (tr.  
 
         p. 130).  Jayne admitted that his calculation was based  on  
 
         Parkins, estimate that claimant's average weekly wage would be 
 
         $270 and
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         KEEVER V. MUSCATINE COMMUNITY SCHOOL DIST.
 
         Page 9
 
         
 
         
 
         that Jayne's calculation did not take into consideration any 
 
         inflation (tr. pp. 132-137).
 
         
 
              Dr. Craig Paul testified that he was high school principal 
 
         and had general administrative responsibilities over the 
 
         janitorial force for employer.  It was stipulated by the parties 
 
         that joint exhibit 14, pages 95 to 103, were claimant's 
 
         employment record and history with employer.  Paul testified that 
 
         within three months claimant had received three disciplinary 
 
         notices and was given her final notice on November 3, 1987, that 
 
         if she had any further problems she would be dismissed from her 
 
         position.  Paul testified that based on the information of 
 
         coworkers, supervisors, teachers and the assistant principal, 
 
         claimant had difficulty in getting along with others.  He did not 
 
         have any written complaints on other employees other than 
 
         claimant.  He stated that claimant was moved from the science 
 
         area to fine arts, but she continued to have difficulty with 
 
         other persons (tr. pp. 137-142).
 
         
 
              Claimant had placed piles of litter on the assistant 
 
         principal's desk to communicate her frustration with teachers 
 
         lack of room cleanliness.  At other times she refused to clean up 
 
         the litter or in the alternative she picked it up and placed it 
 
         on the desks of teachers or on other tabletops as a frustration 
 
         message for the teachers (ex. 14).  Four teachers signed a 
 
         written protest complaining about the quality of claimant's work 
 
         (ex. 14).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received an injury on November 5, 1987, which 
 
         arose out of and in the course of her employment.  McDowell  v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at  pp.  405-406  of  
 
         the Iowa Report.  See also Sister Mary Benedict v. St. Mary's 
 
         Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of 
 
         Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that she sustained an injury on November 5, 1987, 
 
         which arose out of and in the course of employment with employer.  
 
         Claimant described the injury in her testimony.  She gave this
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         KEEVER V. MUSCATINE COMMUNITY SCHOOL DIST.
 
         Page 10
 
         
 
         
 
         same account to all of the doctors.  The doctors proceeded to and 
 
         did treat her on the basis of this described incident of injury. 
 
         Claimant reported the injury to her supervisor and to her father 
 
         when it occurred.  Employer sent claimant to Dr.  Olson as their 
 
         own choice of physician when her back complaints persisted.  
 
         Claimant's testimony was not rebutted, controverted, contradicted 
 
         or refuted by any other evidence including Dr. Paul who was the 
 
         principal of the high school where claimant worked.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of November 5, 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. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id., at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
         N.W.2d 128 (1967).
 
         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that the injury was the cause of both temporary 
 
         and permanent disability.  She testified that she saw her own 
 
         doctor, a chiropractor, shortly after the injury occurred, and he 
 
         took her off work until December 1, 1987.  After that she tried 
 
         to work, but was unable to do so.  The parties stipulated that 
 
         the times off work were from November 9, 1987 through November 
 
         301 1987 and again from December 17, 1987 through April 28, 1988.  
 
         The medical records of Dr. Pontarelli and Dr..Found contain 
 
         statements to the effect that claimant was continued to be off 
 
         work.  Dr. Found returned claimant to work on April 29, 1988.  
 
         The stipulated dates for time off work are, therefore, accepted 
 
         and claimant is entitled to temporary I disability benefits for 
 
         these two periods of time.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587,
 
         
 
         
 
         
 
         KEEVER V. MUSCATINE COMMUNITY SCHOOL DIST.
 
         Page 11
 
         
 
         
 
         593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore 
 
         plain that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Claimant received three impairment ratings.  Dr. Found 
 
         assessed 3 percent.  Dr. Pontarelli determined 5 percent.  Dr. 
 
         Schnell awarded 10 percent.
 
         
 
              Dr. Odell's restrictions may have been temporary.  On May 4, 
 
         1988, he said that the patient seems functionally limited at this 
 
         time to jobs that would require no bending, stooping, or lifting 
 
         (jt. ex. 7).  The functional capacity assessment done under Dr. 
 
         Found's supervision, imposed a current one time maximum lifting 
 
         limit of 20 pounds and a repetitive lifting limit of 10 pounds.  
 
         One time was defined as once per hour and repetitive was defined 
 
         as six times per hour (jt. ex. 3).  Dr. Pontarelli stated that 
 
         claimant should not lift more than 40 to 45 pounds more than 20 
 
         times a day (jt. ex. 15).
 
         
 
              Claimant is foreclosed from performing her previous 
 
         employment for employer.  Claimant was lifting 100 to 150 pounds 
 
         at the time of the injury.  Claimant testified three times that 
 
         employer refused to employ claimant because there was no work for 
 
         her within the restrictions that had been imposed (tr. pp. 28, 69 
 
         & 110).  This testimony was not rebutted, controverted, 
 
         contradicted or refuted by any other evidence. Dr. Paul, the 
 
         principal of the high school, was present for the entire hearing 
 
         and did not controvert this evidence in his testimony when he 
 
         testified.  Refusal of an employer to employ an injured employee 
 
         is strong evidence of lack of employability.  Professor Larson 
 
         says it is the strongest kind of evidence against an employer.  
 
         He adds, "It is hardly necessary to labor the inconsistency of 
 
         permitting an employer to fire a man for physical defects caused 
 
         by his own employment conditions, and then, disclaim compensation 
 
         liability by presenting medical evidence that the man is not 
 
         disabled after all."   2 Larson, Workmen's Compensation Law, 
 
         section 57.61(b) at pages 10-173 and 10-176.  At the same time, 
 
         employer did establish that claimant's failure to cooperate with 
 
         co-employees and recalcitrance to superiors placed her in the
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         KEEVER V. MUSCATINE COMMUNITY SCHOOL DIST.
 
         Page 12
 
         
 
         
 
         position of one more disciplinary action away from termination of 
 
         her employment.
 
         
 
              Claimant's motivation to work is severely questioned by the 
 
         fact that she only worked for a period of a few weeks in all of 
 
         her other employments.  In this employment which lasted 
 
         approximately two years, her motivation is impugned by extremely 
 
         poor behavior with co-employees and superiors.
 
         
 
              At her age, in the early 20's, industrial disability is 
 
         reduced because of the numerous opportunities that she has to 
 
         follow at that age.  Claimant has the advantage of a high school 
 
         education where she obtained fair to average grades.  She 
 
         demonstrated the ability to study for and pass the insurance 
 
         licensing examination on the second attempt.  She is currently 
 
         enrolled in a one year computer training course.  Defendants have 
 
         offered vocational rehabilitation guidance.  Claimant has pursued 
 
         some vocational rehabilitation opportunities by passing the 
 
         insurance licensing examination and by enrolling in the one  year 
 
         computer training course.
 
         
 
              It cannot be said with certainty that claimant's true 
 
         earning capacity is $8.12 per hour which she was earning when she 
 
         terminated employment with employer because this hourly wage is 
 
         at wide disparity with her other hourly wages which were closer 
 
         to minimum wage.  Both Parkins and Jayne testified that she was 
 
         over compensated and gave their reasons for these professional 
 
         opinions.
 
         
 
              Wherefore (1) based on claimant's impairment ratings;  (2) 
 
         claimant's work restrictions; (3) the fact that employer had no 
 
         positions for the employee within her restrictions; (4) 
 
         claimant's questionable motivation to want to work at productive 
 
         employment on a long-term basis; (5) all of the considerations 
 
         used to determine industrial disability, Olson, 225 Iowa 1112, 
 
         1121, 125 N.W.2d 251, 257 (1963), Peterson v. Truck Haven Cafe, 
 
         Inc., vol. 1, no. 3 State of Iowa Industrial Commissioner 
 
         Decisions 654, 658 (Appeal Decision February 28, 1985); (6)  
 
         based on all of the evidence introduced in this case, including 
 
         that of the vocational rehabilitation specialists; and (7) 
 
         employing agency expertise [Iowa Administrative Procedure Act  
 
         17A.14(5)], it is determined that claimant has sustained an 
 
         industrial disability of 15 percent to the body as a whole.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented, the following 
 
         findings of fact are made:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That claimant was employed by employer from the fall of 1985 
 
         until December 1987.
 
         
 
         
 
         
 
         KEEVER V. MUSCATINE COMMUNITY SCHOOL DIST.
 
         Page 13
 
         
 
         
 
              That claimant lifted a 100 to 150 pound barrel of dissected 
 
         dead cats with a lifting and twisting motion to dump the barrel 
 
         into a dumpster on November 5, 1987, when she experienced an 
 
         instant pain in her lower back that when down her left leg.
 
         
 
              That Dr. Pontarelli testified that the injury of November 5, 
 
         1987 was the cause of her disability.
 
         
 
              That claimant sustained an injury from this incident on 
 
         November 5, 1987 that arose out of and in the course of 
 
         employment with employer.
 
         
 
              That claimant's testimony established that the injury was 
 
         the cause of temporary disability for the periods stipulated from 
 
         November 9, 1987 through November 30, 1987 and again from 
 
         December 17, 1987 through April 28, 1988.
 
         
 
              That Dr. Found assessed a 3 percent impairment; that Dr. 
 
         Pontarelli determined a 5 percent impairment and that Dr. Schnell 
 
         awarded a 10 percent impairment; all of these ratings to the  
 
         body as a whole.
 
         
 
              That Dr. Pontarelli imposed restrictions of not lifting more 
 
         than 40 to 45 pounds 20 times a day.
 
         
 
              That Dr. Found imposed restrictions of not lifting more than 
 
         20 pounds once per hour or 10 pounds more than six times per 
 
         hour.
 
         
 
              That employer could find no employment for claimant within 
 
         her medical restrictions.
 
         
 
              That claimant was foreclosed from performing her previous 
 
         job as a janitor for employer.
 
         
 
              That based on Dr. Pontarelli's restrictions, claimant is 
 
         foreclosed from performing heavy labor jobs.
 
         
 
              That based on Dr. Found's restrictions, claimant is 
 
         foreclosed from performing both medium and heavy labor jobs.
 
         
 
              That claimant has demonstrated very poor-motivation to work 
 
         based upon the short term of all of her other employments and her 
 
         extremely poor behavior with co-employees and superiors with this 
 
         employer.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That claimant was 22 years old at the time of the injury and 
 
         24 years old at the time of the hearing.
 
         
 
         
 
         
 
         KEEVER V. MUSCATINE COMMUNITY SCHOOL  DIST.
 
         Page 14
 
         
 
         
 
              That claimant has a high school education; training in life, 
 
         health and accident insurance; and is attending a one year course 
 
         in computer training.
 
         
 
              That claimant is capable of obtaining average grades.
 
         
 
              That claimant has sustained a 15 percent industrial 
 
         disability to the body as a whole.
 
         
 
                               CONCLUSIONS OF  LAW
 
         
 
              Wherefore, based on the evidence presented and the foregoing 
 
         principles of law, the following conclusions of law are made:
 
         
 
              That claimant did sustain the burden of proof by a 
 
         preponderance of the evidence that she sustained an injury on 
 
         November 5, 1987, which arose out of and in the course of 
 
         employment with employer.
 
         
 
              That the injury was the cause of temporary disability from 
 
         November 9, 1987 through November 30, 1987 (a period of 3.143 
 
         weeks) and again from December 17, 1987 through April 28, 1988 (a 
 
         period of 19.143 weeks).
 
         
 
              That claimant is entitled to 22.286 weeks of healing period 
 
         benefits for these two periods of time.
 
         
 
              That claimant did sustain the burden of proof by a 
 
         preponderance of the evidence that the injury was the cause of 
 
         permanent disability.
 
         
 
              That claimant sustained a 15 percent industrial disability 
 
         to the body as a whole.
 
         
 
              That claimant is entitled to 75 weeks of permanent partial 
 
         disability benefits.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant twenty two point two eight 
 
         six (22.286) weeks of healing period benefits to claimant at the 
 
         rate of one hundred ninety-nine and 39/100.dollars ($199.39) per 
 
         week in the total amount of four thousand.four hundred 
 
         forty-three and 61/100 dollars ($4,443.61) commencing on November 
 
         9, 1987 and interrupted by the period from December 1, 1987 to 
 
         December 17, 1987.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That defendants pay to claimant seventy-five (75) weeks of 
 
         permanent partial disability benefits at the rate of one hundred
 
         
 
         
 
         
 
         KEEVER V. MUSCATINE COMMUNITY SCHOOL DIST.
 
         Page 15
 
         
 
         
 
         ninety-nine and 39/100 dollars ($199.39) per week in the total 
 
         amount of fourteen thousand nine hundred fifty-four and 25/100 
 
         dollars ($14,954.25) commencing on April 29, 1988 as stipulated 
 
         by the parties.
 
         
 
              That all accrued benefits are to be paid in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That defendants are entitled to a credit for thirty-seven 
 
         point four two nine (37.429) weeks of workers' compensation 
 
         benefits paid to claimant prior to hearing at the rate of one 
 
         hundred ninety-nine and 39/100 dollars ($199.39) per week in the 
 
         total amount of seven thousand four hundred sixty-two and 97/100 
 
         dollars ($7,462.97).
 
         
 
              That the costs of this action, including the cost of the 
 
         transcript, are charged to defendants pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 343- 
 
         3.1.
 
         
 
              Signed and filed this 21st day of May, 1990.
 
         
 
         
 
         
 
         
 
                                         WALTER R. McMANUS, JR.
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Michael W. Liebbe
 
         Attorney at Law
 
         116 E. 6th St.
 
         PO Box 339
 
         Davenport, Iowa  52805-0339
 
         
 
         Mr. Thomas N. Kamp
 
         Attorney at Law '
 
         600 Davenport Bank Bldg
 
         Davenport, Iowa  52801
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         51106; 51108.50; 51401; 
 
         51402.20;
 
                                         51402.30; 51402.40; 51802; 
 
         51804;
 
                                         1807
 
                                         Filed May 21, 1990
 
                                         Walter R. McManus, Jr.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARY KEEVER,
 
         
 
              Claimant,
 
         
 
         VS.                            :                  File No. 870104
 
         MUSCATINE COMM. SCHOOL DIST.,
 
         
 
               Employer,                :                       A R B I T R A T I O N
 
         
 
         and
 
         
 
         EMPLOYERS MUTUAL INS.,         :                    D E C I S I O N
 
         
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
         
 
         
 
         51106; 51108.50;  51401;  51402.20;  51402.30;  51402.40
 
         
 
              Claimant proved injury by her testimony and medical 
 
         treatment.  Claimant's case was not controverted.
 
         
 
         51802
 
         
 
              Claimant awarded healing period benefits for stipulated time 
 
         off work.
 
         
 
         51804
 
         
 
              Claimant awarded 15 percent industrial disability for lower 
 
         back injury while lifting 100 to 150 pounds of dissected dead 
 
         cats.  Impairment ratings were 3, 5 and 10 percent.  Lifting 
 
         restrictions ranged from 20 pounds and 40 to 45 pounds.  
 
         Claimant's motivation to work was very poor.
 
         
 
         1807
 
         
 
              Employer refused to rehire employee allegedly because they 
 
         had no employment within her restrictions, but at the same time, 
 
         claimant had been a severe disciplinary Ptbblem and was just one 
 
         incident away from being fired anyway.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            SHARON L. BONJOUR,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 870174
 
            ARMOUR FOOD CO.,              :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            HARTFORD INSURANCE COMPANY,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed November 16, 1990 is affirmed and is adopted as the 
 
            final agency action in this case with the following 
 
            additional analysis:
 
            Claimant has not suffered a loss of earnings, and in fact is 
 
            now making more per hour than prior to the injury.  The 
 
            employer commendably rehired claimant in a position 
 
            consistent with her work restrictions.  It is speculative to 
 
            look to the possibility that claimant's employer may close 
 
            the plant because of the alleged uncertainties of the meat 
 
            packing industry.  The award of industrial disability is 
 
            based on claimant's present circumstances and not events in 
 
            the future that may or may not occur.
 
            Defendants shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of February, 1992.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Robert S. Kinsey III
 
            Attorney at Law
 
            P.O. Box 679
 
            Mason City, Iowa 50401
 
            
 
            Mr. Jeff M. Margolin
 
            Mr. Marvin E. Duckworth
 
            Attorneys at Law
 
            2700 Grand Ave., Ste 111
 
            Des Moines, Iowa 50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9999
 
            Filed February 28, 1992
 
            Byron K. Orton
 
            DRR
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            SHARON L. BONJOUR,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 870174
 
            ARMOUR FOOD CO.,              :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            HARTFORD INSURANCE COMPANY,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
            
 
            9999
 
            Summary affirmance of deputy's decision filed November 16, 
 
            1990, with short additional analysis.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SHARON L. BONJOUR,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 870174
 
            ARMOUR FOOD CO.,              :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            HARTFORD INSURANCE COMPANY,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon claimant's 
 
            petition filed March 3, 1989.  Claimant allegedly sustained 
 
            a traumatic injury to her back on November 4, 1987, and now 
 
            seeks benefits under the Iowa Workers' Compensation Act from 
 
            her employer, Armour Food Company, and its insurance 
 
            carrier, Hartford Insurance Company.
 
            
 
                 Hearing on the arbitration petition was had in Mason 
 
            City, Iowa, on January 16, 1990.  The record consists of 
 
            claimant's exhibits 1 through 22, 24 and 26, defendants' 
 
            exhibits A through H, and the testimony of the following 
 
            witnesses:  claimant, Walter Bonjour, Diana Orluske and Carl 
 
            Brant.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report, the parties have 
 
            stipulated:  that an employment relationship existed between 
 
            claimant and employer at the time of the alleged injury; 
 
            that if defendants are liable for temporary total or partial 
 
            disability or healing period benefits, claimant's 
 
            entitlement is from November 4, 1987 through May 28, 1988, 
 
            for which she has been fully compensated; that if claimant 
 
            has sustained a permanent disability, it is an industrial 
 
            disability to the body as a whole; that the proper rate of 
 
            weekly compensation is $238.00; that affirmative defenses 
 
            are not applicable or waived; that all requested medical 
 
            benefits under Iowa Code sections 85.27 and 85.39 have been 
 
            or will be paid by defendants; that in addition to temporary 
 
            disability, defendants voluntarily paid 50 weeks of 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            compensation at the stipulated rate prior to hearing.
 
            
 
                 Issues presented for resolution include:  whether 
 
            claimant sustained an injury arising out of and in the 
 
            course of her employment on November 4, 1987; whether the 
 
            injury caused permanent or temporary disability; the extent 
 
            of claimant's entitlement to compensation for permanent 
 
            disability; taxation of costs.
 
            
 
                 In addition, claimant's husband seeks reimbursement for 
 
            wages he lost while driving her to an independent medical 
 
            examination.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all of the evidence, finds:
 
            
 
                 Claimant was 46 years of age at the time of hearing and 
 
            a high school graduate.  From 1963 to 1971, she worked 
 
            masking cars for an automobile paint and body shop.  In 1971 
 
            and 1972, she installed cupboard doors in motor homes for a 
 
            manufacturer.  From 1973 to 1975, claimant worked in the hog 
 
            kill for a predecessor of defendant known as the Decker 
 
            Plant.  In 1975 and 1976, claimant assembled radios for a 
 
            manufacturer.  From 1976 to 1979, claimant worked for a 
 
            glass repair and installation business.
 
            
 
                 From 1979 to 1983, claimant worked as an on-call casual 
 
            worker for defendant while simultaneously working three 
 
            hours a day serving meals to senior citizens.  In 1983, the 
 
            ownership of defendant Armour Food Company changed and 
 
            claimant was laid off, whereupon she took work on the 
 
            loading dock of a business known as Shopco where she 
 
            remained until 1987.  At that time, she was recalled to work 
 
            by defendant and resumed employment on June 8 of that year.  
 
            She worked for six weeks in the dry sausage department 
 
            (heavy work), two months manufacturing hot dogs and 
 
            thereafter took a position on the "Omaha" line.  Her duties 
 
            included emptying pans of meat scraps weighing up to or just 
 
            over 50 pounds.  Claimant states her work injury occurred 
 
            while pulling such a pan.  She described immediate lower 
 
            back pain so intense as to drive her to her knees.
 
            
 
                 The pan was later scaled and found to weigh 52 pounds.  
 
            Claimant did not immediately have radicular pain to her legs 
 
            and worked the rest of the day.  She at first sought 
 
            chiropractic treatment, but symptoms were not relieved.  She 
 
            was eventually referred to Kenneth B. Washburn, M.D., and 
 
            put on restricted duty.  About two weeks after this 
 
            incident, claimant began developing radicular pain down the 
 
            left leg through her buttock to the mid-calf area.
 
            
 
                 Claimant had been seen in October 1979 by A. J. 
 
            Wolbrink, M.D., relative a preemployment physical for 
 
            defendant Armour Food Company.  X-rays showed a fair amount 
 
            of narrowing of the L5 disc space with perhaps some 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            sclerotic changes in the apophyseal joints and possibly 
 
            minimal spurring at a couple of other levels.  Dr. 
 
            Wolbrink's impression was of mild degenerative disc disease, 
 
            but he did not believe claimant to be of greater risk of 
 
            having back problems than the average person, as she had 
 
            x-ray changes but no clinical evidence of degenerative disc 
 
            disease.  Claimant credibly testified that prior to the work 
 
            injury she had never missed work due to back problems and 
 
            had no history of radicular pain.
 
            
 
                 Conservative treatment proved unsuccessful and Dr. 
 
            Washburn's associate, T. C. Mead, M.D., performed surgery on 
 
            December 16, 1987 described as lumbar hemilaminectomy L4 and 
 
            L5 with wide foraminotomy L4-5, L5-S1; excision of free 
 
            fragment and L4-5 disc.  Surgery was based on pre- and 
 
            post-operative diagnoses of herniated L4-5 disc with free 
 
            fragment and foramen lateral recess stenosis L4-5, L5-S1.
 
            
 
                 On June 28, 1988, Dr. Mead imposed medical restrictions 
 
            against lifting in excess of 20 pounds, more than occasional 
 
            bending/stooping, climbing and driving, and requiring 
 
            alternate sitting, standing and walking.  On September 22, 
 
            1988, he assessed claimant as having sustained a 10 percent 
 
            impairment to the body as a whole.
 
            
 
                 On July 20, 1988, Dr. Washburn recommended restrictions 
 
            essentially the same, but further limiting claimant against 
 
            repetitive pushing with the hands.  On August 19, 1988, he 
 
            assessed claimant as having sustained a 10 percent 
 
            impairment to the body as a whole.
 
            
 
                 Dr. Wolbrink, who had seen claimant in 1979, did not 
 
            examine her after the work injury, but nonetheless concluded 
 
            from medical records that her surgical procedure was 
 
            causally related to the subject work injury.
 
            
 
                 Claimant was seen for evaluation by Peter D. Wirtz, 
 
            M.D.  Dr. Wirtz wrote on November 3, 1989 that based on a 
 
            diagnosis of status post-operative lumbar disc removal with 
 
            neurological residuals, there was no further treatment 
 
            indicated, that claimant had reached her maximum medical 
 
            benefit and that she had sustained a 10 percent impairment 
 
            of the body as a whole (based on a 5 percent impairment from 
 
            the surgery and a 5 percent impairment relating to 
 
            neurological residuals).  Dr. Wirtz recommended restrictions 
 
            against excessive and repetitive stressful bending, 
 
            twisting, lifting, pushing and pulling.  He further 
 
            specified that he did not find any non-work related 
 
            conditions that relate to claimant's current condition.
 
            
 
                 Claimant was also seen for evaluation by John R. 
 
            Walker, M.D.  On October 19, 1988, Dr. Walker noted that 
 
            spinal views showed a marked narrowing and almost complete 
 
            loss of the vertebral height of the L5 disc and that the L4 
 
            disc was collapsed between 50 and 60 percent, which he found 
 
            to be the areas of extreme pain and discomfort upon 
 
            palpation.  He further opined that claimant had sustained an 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            impairment equivalent to 15 percent of the body as a whole 
 
            (but anticipated future problems which would probably 
 
            require further surgery).  In a letter of September 7, 1989, 
 
            Dr. Walker expressed the opinion that claimant's impairment 
 
            was based on the subject work injury and resultant surgical 
 
            treatment.
 
            
 
                 When claimant returned to work on a full-time basis, 
 
            she was given a job packing hams, then scaling on the bacon 
 
            line, then on the redi-grill.  This position includes 
 
            putting paper into 15-pound boxes of meat, which she 
 
            described as not heavy but repetitive.  Claimant agreed this 
 
            is the best full-time position she has yet held.
 
            
 
                 Claimant currently complains of some aching pain in the 
 
            left lower back and pain in the left leg which sometimes 
 
            makes it difficult to work and causes her to limp.  She is 
 
            physically able to work some overtime hours, but cannot do 
 
            all of the jobs with defendant she was able to perform prior 
 
            to the work injury.  She has had the opportunity to bid on 
 
            other jobs, but has not done so due either to this injury, 
 
            her lack of seniority or upper extremity problems which she 
 
            describes as carpal tunnel syndrome.  However, she agrees 
 
            that she has not missed bidding on any "good" jobs due to 
 
            her back restrictions.  She has not had any subsequent back 
 
            injuries.  She complains of trouble sleeping, an inability 
 
            to sit in the car for extended time, and described problems 
 
            with vacuuming, bowling, dancing, yard work and in sexual 
 
            function.
 
            
 
                 Claimant has not considered seeking a desk job because 
 
            of her inability to sit for extended time.  She claims 
 
            inability to do any other work if she were to lose her 
 
            present job, but fortunately does like that job and stated 
 
            that she would work 50 hours a week if the hours were 
 
            available.
 
            
 
                 Carl Brant, a supervisor for defendant, agreed that 
 
            claimant is a good worker, is always ready to work overtime 
 
            and stated that claimant's current job is in no jeopardy.  
 
            However, he was unaware that claimant had medical 
 
            restrictions and conceded that her current job does require 
 
            a great deal of repetitive twisting and lifting.
 
            
 
                 Walter Bonjour is claimant's husband and has been for 
 
            some 17 years.  He agreed that claimant came home 
 
            complaining of a back injury on November 4, 1987 and 
 
            corroborated claimant's testimony with respect to not having 
 
            prior complaints or back injuries and developing leg pain a 
 
            week or more after the injury.  He further corroborated 
 
            claimant's testimony as to the difficulties she now 
 
            experiences with various aspects of day-to-day life, as did 
 
            Diana Orluske.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            of the evidence that she received an injury on November 4, 
 
            1987 which arose out of and in the course of her employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 
 
            68 N.W.2d 63 (1955). 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto 
 
            Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).
 
            
 
                 The supreme court of Iowa in Almquist v. Shenandoah 
 
            Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) 
 
            discussed the definition of personal injury in workers' 
 
            compensation cases as follows:
 
            
 
                 While a personal injury does not include an 
 
                 occupational disease under the Workmen's 
 
                 Compensation Act, yet an injury to the health may 
 
                 be a personal injury.  [Citations omitted.]  
 
                 Likewise a personal injury includes a disease 
 
                 resulting from an injury....The result of changes 
 
                 in the human body incident to the general 
 
                 processes of nature do not amount to a personal 
 
                 injury.  This must follow, even though such 
 
                 natural change may come about because the life has 
 
                 been devoted to labor and hard work.  Such result 
 
                 of those natural changes does not constitute a 
 
                 personal injury even though the same brings about 
 
                 impairment of health or the total or partial 
 
                 incapacity of the functions of the human body. 
 
            
 
                    ....
 
                 
 
                 A personal injury, contemplated by the Workmen's 
 
                 Compensation Law, obviously means an injury to the 
 
                 body, the impairment of health, or a disease, not 
 
                 excluded by the act, which comes about, not through the 
 
                 natural building up and tearing down of the human body, 
 
                 but because of a traumatic or other hurt or damage to 
 
                 the health or body of an employee.  [Citations 
 
                 omitted.]  The injury to the human body here 
 
                 contemplated must be something, whether an accident or 
 
                 not, that acts extraneously to the natural processes of 
 
                 nature, and thereby impairs the health, overcomes, 
 
     
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 injures, interrupts, or destroys some function of the 
 
                 body, or otherwise damages or injures a part or all of 
 
                 the body.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of November 4, 
 
            1987 is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 An employer takes an employee subject to any active or 
 
            dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler v. United 
 
            States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960), 
 
            and cases cited.
 
            
 
                 The parties dispute whether claimant sustained an 
 
            injury arising out of and in the course of her employment.  
 
            Claimant's credible testimony establishes that she suffered 
 
            a lifting injury as she described on November 4, 1987.  Even 
 
            though she may have had some radiographic evidence of 
 
            dormant back problems, she was essentially asymptomatic up 
 
            until that point and has been symptomatic since.  The 
 
            evidence contains no indication that claimant injured 
 
            herself in any manner other than as she described.  Claimant 
 
            was working at a regular assigned job duty where she was 
 
            assigned to be at the time of this incident.  She has met 
 
            her burden of proof in establishing an injury arising out of 
 
            and in the course of her employment.
 
            
 
                 Drs. Wolbrink, Walker, and by implication, Wirtz, agree 
 
            that the work injury has caused claimant's disability.  No 
 
            physician has expressed a contrary view.  Given that 
 
            claimant was asymptomatic before and developed severe and 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            disabling pain after the work injury confirmed both by CT 
 
            scan and subsequent surgery, the evidence is overwhelming 
 
            that a causal nexus exists between the work injury and both 
 
            temporary and permanent disability.
 
            
 
                 The parties have stipulated to the extent of claimant's 
 
            temporary disability.  Permanent disability remains at 
 
            issue.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, 1985).
 
            
 
                 The medical opinion is remarkably consistent in 
 
            evaluating claimant's impairment and limitations.  Dr. Mead, 
 
            the treating surgeon, Dr. Washburn, another treating 
 
            physician, and Dr. Wirtz all agree that claimant has a 10 
 
            percent impairment to the body as a whole.  Dr. Walker 
 
            believes her impairment is 15 percent.  Her limitations are 
 
            essentially against lifting in excess of 20 pounds, and 
 
            against more than occasional bending, stooping, climbing, 
 
            driving, and pushing.  Dr. Wirtz also recommends against 
 
            pulling and twisting.  It is questionable whether claimant 
 
            could continue in her previous work as a car masker, due to 
 
            the twisting restriction suggested by Dr. Wirtz.  It is not 
 
            clear that she could perform her former work as a cupboard 
 
            door installer or as a puller with hog kill.  Probably she 
 
            could assemble radios, depending on whether she would be 
 
            able to alternate sitting and standing.
 
            
 
                 Claimant is of an education and apparent intelligence 
 
            suitable for retraining.  Defendant Armour Food Company is 
 
            to be commended for keeping claimant employed in a job 
 
            essentially within her medical restrictions, which operates 
 
            to reduce industrial disability.  Nonetheless, claimant's 
 
            age is such that she is in her prime earning years and she 
 
            would surely be less attractive to potential employers due 
 
            to her history of back surgery if she were to lose her 
 
            current position (it is not unheard of for meat packing 
 
            enterprises to close plants or to go out of business).
 
            
 
                 Considering these factors in specific and the record in 
 
            general, it is held that claimant has sustained a permanent 
 
            partial disability equivalent to 25 percent of the body as a 
 
            whole.  Accordingly, she shall be awarded 125 weeks of 
 
            benefits.
 
            
 
                 Claimant's husband seeks to recover wages he lost while 
 
            transporting her to a medical examination.  He is not a 
 
            party with standing to seek an award.  Claimant is entitled 
 
            to the reasonable cost of transportation, but there has been 
 
            no showing that reasonable expenses were incurred or not 
 
            paid.  The parties did not present Iowa Code 85.39 as a 
 
            disputed issue.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay unto claimant one hundred 
 
            twenty-five (125) weeks of permanent partial disability 
 
            benefits at the stipulated rate of two hundred thirty-eight 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            and 00/100 dollars ($238.00) per week commencing May 29, 
 
            1988 and totalling twenty-nine thousand seven hundred fifty 
 
            and 00/100 dollars ($29,750.00).
 
            
 
                 All accrued benefits shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 Defendants shall have credit for fifty (50) weeks of 
 
            benefits paid at the stipulated rate prior to hearing (as it 
 
            is assumed that precisely the correct amount of benefits has 
 
            been paid for temporary total and temporary partial 
 
            disability).
 
            
 
                 The costs of this action shall be assessed to 
 
            defendants pursuant to 343 IAC 4.33.
 
            
 
                 Defendants shall file claim activity reports as 
 
            requested by this agency pursuant to 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert S. Kinsey III
 
            Attorney at Law
 
            214 North Adams
 
            P.O. Box 679
 
            Mason City, Iowa  50401
 
            
 
            Mr. Jeff M. Margolin
 
            Mr. Marvin E. Duckworth
 
            Attorneys at Law
 
            Suite 111, Terrace Center
 
            2700 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1402.30; 5-1803
 
                           Filed November 16, 1990
 
                           DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            SHARON L. BONJOUR,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :         File No. 870174
 
            ARMOUR FOOD CO.,    :
 
                      :      A R B I T R A T I O N
 
                 Employer, :
 
                      :         D E C I S I O N
 
            and       :
 
                      :
 
            HARTFORD INSURANCE COMPANY,   :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            5-1402.30
 
            Claimant developed symptoms resulting in disc excision 
 
            following a lifting incident at work.  Her injury was found 
 
            to arise out of and in the course of employment.
 
            
 
            5-1803
 
            Forty-six-year-old claimant with high school education and 
 
            work history in the meat packing industry and various 
 
            manufacturing jobs underwent disc surgery and was variously 
 
            given restrictions against lifting in excess of 20 pounds, 
 
            excessive or repetitive bending, stooping, driving, pushing, 
 
            pulling, and twisting and told to alternate sitting, 
 
            standing and walking.  She remains employed by defendant and 
 
            has suffered no actual loss of earnings.  Claimant was 
 
            awarded 25 percent industrial disability.